YETRINATHALA SUBBULU NAIDU Vs. ALA NIRMALA
LAWS(APH)-2019-12-11
HIGH COURT OF ANDHRA PRADESH
Decided on December 30,2019

Yetrinathala Subbulu Naidu Appellant
VERSUS
Ala Nirmala Respondents


Referred Judgements :-

VADIRAJ NAGGAPPA VERNEKAR VS. SHARAD CHAND PRABHAKAR [REFERRED TO]
K K VELUSAMY VS. N PALANISAMY [REFERRED TO]


JUDGEMENT

M.SEETHARAMA MURTI, J. - (1.)These two revision petitions, under Article 227 of the Constitution of India, are filed by the unsuccessful petitioners - plaintiffs, having been aggrieved of the common order, dated 06.06.2019, of the learned III Additional District Judge, Guntur, passed in IA. nos. 439 & 438 of 2019 in OS. no. 62 of 2007 respectively filed for reopening of the evidence of the defendants and recatl of DW1 for further cross examination after confronting to her, her deposition in OS. no. 26 of 2009 on the file of Senior Civil Court, Kavali.
(2.)I have heard the submissions of learned counsel appearing for the revision petitioners - plaintiffs ['plaintiffs', for brevity]; and, of the learned counsel appearing for the 1st respondent - 1st defendant ['1st defendant', for brevity]. Respondents 2 to 7 are stated to be not necessary parties. I have perused the material record.
(3.)The case of the plaintiffs in support of the aforesaid requests is this:-
'They filed the suit for declaration of titles and consequential perpetual injunctions in respect of the plaint schedule properties. The 1st defendant was examined as DW1 in the present suit. She was cross examined. She figured as a witness - DV2 in OS. no. 26 of 2009 on the file of Senior Civil Court, Kavali. During her cross examination in the said suit, she testified that she and her husband, Prabhakara Rao, resided together till the death of her husband; that exhibit A2 therein is the certified copy of the registered settlement deed, dated 24.08.2011, executed in her favour by the 1st defendant therein, that is, her husband (since died); and, that she and her husband purchased Ac.4.00 cents of land with the income derived from the sale of the gold ornaments belonging to her and her husband. But, in the present suit, she is contesting that she had separated from her husband by taking a stand, which is contrary to her testimony in the aforesaid suit, OS. no. 26 of 2009 on the file of Senior Civil Court, Kavali. Therefore, it has become necessary to seek reopening of the evidence and recall her (DW1) to cross examine her by confronting to her, her deposition in OS. no. 26 of 2009.

The 1st respondent herein - DW1 opposed for allowing of the applications of the plaintiffs, inter alia, stating that the plaintiffs are un-necessarily filing petitions after petitions to drag on the matter.

On merits and by the common order impugned in these revisions, the trial Court dismissed both the applications. Therefore, the plaintiffs are before this Court.

Learned counsel for the plaintiffs, while reiterating the pleaded case of the plaintiffs, which is extracted supra in detail, contended that the 1st defendant - DW1 in the present suit, having contended and deposed that she had separated from her husband long time back and that she filed a suit for partition and maintenance claiming a charge on 'A' schedule properties in the suit, gave evidence to the contra as DW2 in OS. no. 26 of 2009 on the file of Senior Civil Court, Kavali. In view of her contradictory versions, it has become necessary to seek reopening of the evidence and permission to cross examine her with reference to her testimony in OS. no. 26 of 2009 by confronting the relevant portions of her deposition in the said suit.

Per contra, learned counsel for the 1st defendant - DW1 supported the common order passed by the trial Court and contended as follows:-

'As rightly held by the Court below, the evidence of 1st defendant as DW1 in the present suit concluded in March, 2018 whereas she gave evidence as DW2 in OS. no. 26 of 2009 in September, 2018. Therefore, the deposition, which the plaintiffs want to confront to DW1, is her subsequent statement and it is not her prior statement. Under Sections 145 and 155 of the Indian Evidence Act, a witness can be contradicted by utilising her previous statement but not a subsequent statement made on oath. Hence, the plaintiffs are not entitled to seek permission to recall DW1 for cross-examination on confronting her testimony made subsequently in OS. no. 26 of 2009.'

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