Research › Search › Judgment

Andhra High Court · body

2002 DIGILAW 992 (AP)

Prema Ranjit v. D. A. R. Sarma

2002-08-13

D.S.R.VERMA

body2002
D. S. R. VARMA, J. ( 1 ) THIS revision petition is filed challenging the order and decree dated 8-7-2002 passed by the Court of I Additional Senior Civil judge, Rangareddy District in I. A. No. 490/ 2002 in O. S-No. 151/1997. By the impugned order, the court below dismissed the petition filed by the defendant No. l under Order 3 rule 1 C. P. C. to summon the second plaintiff for cross-examination. Aggrieved by the said dismissal, the 1st defendant in the suit, filed this revision petition. ( 2 ) THE brief facts are that the plaintiffs filed two suits in O. S. Nos. 151 and 152 of 1997 for specific performance of the agreements. In both the suits, the 1st defendant filed I. A. Nos. 974 and 975 of 1998 respectively to direct the personal appearance of the 2nd plaintiff for the purpose of oral examination and signature. The affidavit filed in support of the present la. discloses that the defendants expressed an apprehension that 2nd plaintiff was not all in existence and she is a fictitious person. When the said I. As. were dismissed by the court below, the 1st defendant filed revision before this Court in C. R. P. Nos. 4975 and 4974 of 1998 and the same were allowed by this Court with a direction to issue summons to the 2nd plaintiff for the purpose mentioned in the petitions filed by the 1st defendant. However, the 2nd plaintiff in O. S. No. 152/1997 got herself examined as P. W. 2 and she was also effectively cross-examined by the defendants, there is no further cause of action in the said suit. ( 3 ) COMING to the present LA. as per the directions of this Court in the revision petition, after the second plaintiff attended the court in person, the court treated her as court witness and examined her. The grievance of the 1st defendant is that the court treated the 2nd plaintiff as court witness and examined her but no opportunity was given to him to cross-examine her. as per the directions of this Court in the revision petition, after the second plaintiff attended the court in person, the court treated her as court witness and examined her. The grievance of the 1st defendant is that the court treated the 2nd plaintiff as court witness and examined her but no opportunity was given to him to cross-examine her. ( 4 ) IN view of the above, the question that falls for consideration is when a person is summoned by the court to appear in person, exercising its jurisdiction under Order 3 rule 1 C. P. C. and when that person appears and thereafter if the court examined him, whether affording opportunity to the other party to cross-examine such witness is sine qua non or not? ( 5 ) THE apprehension expressed by the 1st defendant is only with regard to the identity and entity of the 2nd plaintiff. In other words his contention is that the 2nd plaintiff is a fictitious person and as such he filed present LA. under Order 3 Rule 1 C. P. C, ( 6 ) IT is not necessary to go into Order 3 rule 1 C. P. C. , inasmuch as the 2nd plaintiff was summoned by the court in compliance with the directions of the Court. The contention of the learned Counsel for the petitioner is that the 2nd plaintiff should not have been examined as court witness. However, he is complacent with the procedure adopted by the court in summoning the 2nd plaintiff. But his whole grievance is that the 1st defendant was not given opportunity to cross-examine the 2nd plaintiff while she was being examined by the Court. He further submits that unless an opportunity is given, it is difficult to disprove the identity of the 2nd plaintiff. In support of his contention he heavily relied on Order 10 Rules 2 and 4 C. P. C. They are extracted as under for better appreciation: 2. He further submits that unless an opportunity is given, it is difficult to disprove the identity of the 2nd plaintiff. In support of his contention he heavily relied on Order 10 Rules 2 and 4 C. P. C. They are extracted as under for better appreciation: 2. Oral examination of party, or companion of party,- (1) At the first hearing of the suit, the Court- (a) shall, with a view to elucidating matters in controversy in the suit, examine orally such of the parties to the suit appearing in person or present in Court, as it deems fit; and (b) may orally examine any person, able to answer any material question relating to the suit, by whom any party appearing in person or present in Court or his pleader is accompanied. (2) At any subsequent hearing, the court may orally examine any party appearing in person or present in court, or any person, able to answer any material question relating to the suit, by whom such party or his pleader is accompanied. (3) The Court may, if it thinks fit, put in the course of an examination under this rule questions suggested by either party. 4. Consequence of refusal or inability of pleader to answer.- (1) Where the pleader of any party who appears by a pleader or any such person accompanying a pleader as is referred to in rule 2, refused or is unable to answer any material question relating to the suit which the Court is of opinion that the party whom he represents ought to answer, and is likely to be able to answer if interrogated in person, the Court may postpone the hearing of the suit to a day not later than seven days from the date of first hearing and direct that such party shall appear in person on such day. (2) If such party fails without lawful excuse to appear in person on the day so appointed, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit. (Emphasis supplied) ( 7 ) RULE 4 deals with the consequence of refusal or inability of the pleader to answer. This rule postulates that when pleader, in the opinion of the court, either refused to answer or found to be unable to answer any material question, the court can call upon the party to answer. (Emphasis supplied) ( 7 ) RULE 4 deals with the consequence of refusal or inability of the pleader to answer. This rule postulates that when pleader, in the opinion of the court, either refused to answer or found to be unable to answer any material question, the court can call upon the party to answer. In the instant case, 2nd plaintiff was summoned by the court and she was present and, therefore, Rule 4 of order 10 has no application. ( 8 ) SUB-RULE (1) (a) and (b) of Rule 2 makes it clear that the court shall examine orally the parties to the suit who appear in person or present in the court and also orally examine any person who is able to answer any material question relating to the suit. From this it is clear that the court has the power or duty as the case may be, to examine any person orally in order to elucidate the matters in controversy. To put it in a different way, it is only the court which has got the jurisdiction to examine any person orally and such examination and opinion is subject to the satisfaction of the court alone. Sub-rule (3) of Rule 2 makes the above position further clear that if either party wants to put any question to the witness examined by the court, then they can only suggest such questions and if the court thinks fit, will put those questions to the witness. In other words the parties can put questions to the witness examined by the court only by way of suggestions to the court and it is the discretion of the court whether to put such questions or not and the party cannot put questions directly or cross-examine such witness. The right of either party is limited only to the extent of making suggestions to the court with regard to putting any questions touching upon the controversy. ( 9 ) THE learned Counsel for the petitioner secondly contended that unless the defendant No. 1 is permitted to cross- examine the witness examined by the court, it is difficult to believe her identity. He further contends that the 2nd plaintiff produced no proof whatsoever with regard to her identification. ( 10 ) IN my view the above contentions cannot be accepted. He further contends that the 2nd plaintiff produced no proof whatsoever with regard to her identification. ( 10 ) IN my view the above contentions cannot be accepted. If they are accepted, it takes the procedure far beyond the scope of order 10 Rule 2 C. P. C. and would also create so many other complications and at a later date, the plaintiff also may take similar objection stating that the defendant is also a fictitious person. If such an allegation is taken into cognizance and the court is compelled to give chances liberally to either party to question the identity of the person, then that would take the course of the trial a long way and I am afraid the trial of the suit would become a mockery and the real controversy would be side-tracked. Therefore, the power under Order 10 Rule 2 should be exercised sparingly keeping in view the facts and circumstances and also taking into account the seriousness of the averments and the complexity of the case. ( 11 ) FURTHER it has be noted that even if a person is examined under Order 10 Rule 2 or 4 that cannot be conclusive. It is only for the prima facie satisfaction of the court and it is always open for the either party to lead any other substantial evidence to establish their case that such person in controversy is a fictitious person. ( 12 ) IT is to be clarified that the oral examination of the 2nd plaintiff by the court cannot be treated as evidence in the suit. Such examination is only done while exercising the jurisdiction under Order 10 rule 2 and it is only for the limited purpose as indicated by the aggrieved party in the petition; in the present case as stated by the 1st defendant in the LA. It is established principle that if the 2nd plaintiff does not opt to examine herself as a witness, the court may draw appropriate inference, after trial basing on the evidence both oral and documentary on record and decide the suit. It is established principle that if the 2nd plaintiff does not opt to examine herself as a witness, the court may draw appropriate inference, after trial basing on the evidence both oral and documentary on record and decide the suit. ( 13 ) FOR the foregoing reasons, I am of the considered view that the contention of the learned Counsel for the petitioner - 1st defendant that the defendant should have been afforded an opportunity to cross- examine the 2nd plaintiff examined by the court, cannot be sustained and the trial court had rightly dismissed the I. A. It further appears to me that the defendant No. 1 by filing this type of applications is trying to procrastinate the litigation. Accordingly the issue is answered against the defendant. ( 14 ) HOWEVER in order to avoid further complications, the court below shall dispose of the suit in accordance with law as expeditiously as possible, if necessary on priority basis. ( 15 ) ACCORDINGLY I pass the order as under: the revision petition is dismissed with the above observations. No costs.