9911796707
TMI Blog2019 (5) TMI 795X X X X Extracts X X X X X X X X Extracts X X X X ..... eard Mr. Satyanarayana Prasad, learned Senior counsel appearing for the petitioner and Mr. Sunil B. Ganu, learned counsel appearing for the respondents 1, 3 and 4. 3. The 5th respondent is not a necessary party and notice to them was already dispensed with. The 2nd respondent despite being served with notice has not chosen to appear. 4. The petitioner herein filed a civil suit in O.S No.147 of 2007 on the file of the II Additional Chief Judge, City Civil Court, Hyderabad for recovery of a sum of Rs. 2,12,27,446/-. The case of the petitioner/plaintiff in the suit was that the 5th respondent herein floated a tender in May 2006 for the supply of 4600 MTs of Vanaspathi; that respondents 2 to 4 solicited the services of the petitioner for pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in CC No.636 of 2008. The said application was dismissed by the Commercial Court, forcing the petitioner/plaintiff to come up with the above revision. 8. The background in which the petitioner sought reopening of their evidence was that at the time when the Memorandum of Understanding was entered into between the plaintiff and the 1st defendant, the 2nd defendant was the Managing Director and defendants 3 and 4 were the Directors of the 1st defendant company. But, it appears that when the matter was taken up for trial, the 3rd defendant became the Managing Director of the 1st defendant and he was examined as DW.1. The 2nd defendant chose not to go to the witness box. Therefore, the petitioner/plaintiff wanted to adduce rebuttal evidence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d defendant examined himself as DW.1 that it became clear that the 2nd defendant was not willing to go to the witness box. 11. Therefore, the petitioner lost an opportunity to confront the 2nd defendant in the witness box, with the deposition that he had given in the Criminal Court. Hence, the petitioner had no alternative except to seek reopening of the evidence on their side to mark the deposition of the 2nd defendant before the Criminal Court. This aspect has been completely lost sight of by the Commercial Court. 12. It is contended by the learned counsel for the respondents that Section 33 of the Indian Evidence Act 1872 would not apply to the case on hand and that the provisions of Order - 18 Rule 17 CPC cannot be misused as a matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates, provided any one of the following conditions is satisfied; (1) the witness is dead or cannot be found, (2) the witness is incapable of giving evidence, (3) the witness is kept out of the way by the adverse party or (4) the presence of the witness cannot be obtained without an amount of delay or expense. 15. According to the petitioner, the 2nd defendant is kept out of the way by the adverse party. The three conditions laid down in proviso to section 33 are also satisfied, namely, (1) that the proceeding was between the same parties, (2) that the adverse party in the first proceeding had the right to cross-examine and (3) that the questions in issue were substantially the same. 16. It is true that the power under order 18 Rule 17 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defendant going to the witness box as DW.1 and the 2nd defendant shying away from going to the witness box, the petitioner could have had no alternative except to seek reopening of the evidence to mark the certified copy of the deposition of the 2nd defendant before the criminal Court. Rebuttal evidence, by its very nature, can come only after the evidence on the side of the defendant is over. This aspect has been completely lost sight of by the Commercial Court. Hence, the revision is liable to be allowed. 20. Accordingly, the revision petition is allowed and the impugned order is set aside. The application for reopening of the evidence filed by the petitioner shall stand allowed to enable the petitioner to mark the deposition of D.2 and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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