SRINIWAS v. VIJAYA S. NAYAK — 1999 DIGILAW 439 (KAR)

S. R. VENKATESHA MURTHY, J. ( 1 ) HEARD on merits by consent. ( 2 ) THE petitioner who is the plaintiff in O. S. No. 5523 of 1994 on the file of the City Civil Judge, Bangalore, filed an application for striking down the evidence of D. W. 2-Shanthappa R. Nayak, husband of Vijaya s. Nayak-D. W. 1 who is plaintiff in O. S. No. 2666 of 1995, on the ground that when D. W. 1-Vijaya S. Nayak was examined as a witness in the case D. W. 2 her husband was present in Court and subsequently D. W. 2 was also examined. The proposed examination of D. W. 2 was not communicated to the petitioner herein at the time D. W. 1 was examined and it is stated that at the time D. W. 1 was examined D. W. 2 was present and his presence was objected to and the Trial Court did not uphold the objection and directed the plaintiff to go on with the case and that is how d. W. 1's evidence was affected by the presence of D. W. 2 in the Court hall. Thereafter, D. W. 2 was examined as witness in the case. At the stage, when D. W. 2 was to be cross-examined, the petitioner filed the application for striking out the evidence of D. W. 2 on the ground that d. W. 2 was present during the examination of D. W. 1. The learned Trial judge by the order dated 6-7-1999 held that when the examination of d. W. 1 proceeded, D. W. 2 was present in Court and his presence was not objected to by or on behalf of the petitioner. The Court further observed that even when D. W. 2 was examined no objection was raised for the examination; while a statement is stated to have been made by the petitioner's Counsel that he had no objection for further evidence being recorded of D. W. 2. Consequently, the learned Trial Judge dismissed the application. Hence, this revision. ( 3 ) THE learned Counsel for the petitioner has sought to rely upon the two decisions in support of his contention which he states supports his contention. Achyutana Pitchaiah Sarma v Gorantla Chinna Veerayya, is a decision rendered under Section 135 of the Evidence Act. Consequently, the learned Trial Judge dismissed the application. Hence, this revision. ( 3 ) THE learned Counsel for the petitioner has sought to rely upon the two decisions in support of his contention which he states supports his contention. Achyutana Pitchaiah Sarma v Gorantla Chinna Veerayya, is a decision rendered under Section 135 of the Evidence Act. The relevant portion of the judgment reads as follows :"the first question for consideration is whether a Court has got power to order unexamined witnesses out of Court until their evidence is taken. Neither the Evidence Act nor the Code of Civil and Criminal Procedure contain any section or rule for ordering witnesses out of Court although it is generally done by the Courts as a matter of practice. In my view, the Court has inherent power to regulate the business of the Court in the way it thinks best or to make any order that may be necessary for the ends of justice". Apparently this decision was rendered at a time when the Order 18 of the Civil Procedure Code had not been amended making a specific provision for examination of a party as his first witness. The Court held that the Court had power to direct that no witness who has to give evidence should be present when the evidence of other witnesses is being recorded and the parties are obliged to comply with the direction given by the Court. The other aspect of the matter that was dealt with by the Court is whether an unexamined witness present in Court could be asked to quit the Court hall during the examination of the other witness and the relevant portion of the observation in Achyutana pitchaiah's case, supra, at para 3 reads as follows:"the authority for this is stated to be Selfe v Issaccson. Again in Halsbury's Laws of England, Vol. 10, at p. 470, it is stated that unexamined witnesses may be ordered out of Court at the request of either party. It is therefore clear that the Court has power to order unexamined witnesses out of Court at any time during the trial on the application of either party". Again in Halsbury's Laws of England, Vol. 10, at p. 470, it is stated that unexamined witnesses may be ordered out of Court at the request of either party. It is therefore clear that the Court has power to order unexamined witnesses out of Court at any time during the trial on the application of either party". ( 4 ) ON the basis of these observations, it was sought to be contended that the presence of D. W. 2 at the time D. W. 1 was examined, disqualified him from being examined as a witness later on, in the absence of a witness list having been given, and on that ground that evidence of D. W. 2 ought to have been struck off as sought by the petitioner. ( 5 ) THE other decision that was relied on behalf of the petitioner is Dr. Kasi Iyer v State of Kerala, where the Court held that notwithstanding the fact that neither the criminal procedure code nor the Evidence Act contain any specific provision for ordering the witnesses out of the Court in order to ensure a fair trial. Even in the absence of such a specific provision the Court has inherent power to order the witness who is yet to give evidence in the case being not present in the Court hall till his turn to give evidence comes. ( 6 ) APPARENTLY, none of the decisions referred to above say that if there should be an infraction, by the presence of the witness who is latter to be examined as a witness in the case, the evidence tendered by the witness would be vitiated and that evidence is liable to be struck down, as now sought by the petitioner. Apparently, in the instant case, the learned Trial Judge has found that the petitioner did not object to the presence of D. W. 2 at the time D. W. 1 was examined and when D. W. 2 was sought to be examined in the case, the petitioner is stated to have consented for his being examined as a witness in the case. Having regard to these circumstances, the request of the petitioner to strike down the evidence of D. W. 2 was rightly turned down. Having regard to these circumstances, the request of the petitioner to strike down the evidence of D. W. 2 was rightly turned down. ( 7 ) LEARNED Counsel appearing for the petitioner sought to contend that even the consent that is found recorded in the order sheet of the trial Court is incorrect. If that were to be so, the correctness of the statement recorded by the Court or otherwise would have to be exam- ined and decided by the Court which recorded the statement and not this Court. ( 8 ) I am afraid that even if all these circumstances urged, as affecting the evidence of D. W. 2, were maintainable in law, unless there is a specific provision in law to strike down the evidence of a witness on the ground now urged, it would be impossible to grant such a request. At best it may be a question of appreciating the evidence of the witness, taking notice of the circumstance that is urged on behalf of the petitioner. It is for the Trial Court to examine how far the evidence of D. W. 2 or D. W. 1 is reliable on the ground now urged. It is not certainly a ground on which the evidence of D. W. 2 could be struck off. The revision being without any merits, is dismissed. --- *** --- .