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2005 DIGILAW 873 (AP)

K. v. Prasad Reddy VS Yarabolu Hariprasad Reddy

2005-09-15

C.Y.SOMAYAJULU

body2005
( 1 ) IN a suit for perpetual and mandatory injunctions, after the parties adduced evidence and arguments were heard on 31-3-2004 and after the case was reserved for judgment, petitioner filed I. A. No. 650 of 2004, on 23-4-2004 to reopen his evidence and examine a witness on his behalf by appointing an Advocate Commissioner. That petition was allowed and an Advocate commissioner was appointed to record his evidence, who filed his report on 5-5-2005. Thereafter, when the case is at the stage of arguments, petitionerfiled I. A. No. 694 of 2005 on 14-6-2005 seeking permission to examine himself as a witness, which was opposed by the respondent. On the ground that petitioner failed to obtain permission under Rule 3-A of order 18 C. P. C. to examine himself at a later stage, the learned trial Judge dismissed the said petition. Hence, this revision. ( 2 ) THE main contention of the learned counsel for the petitioner is that since petitioner filed the suit through his General power of Attorney Holder and examined the g. P. A. as a witness, since he is advised to examine himself also, to get over the technical difficulty of the party being absent from witness box, inasmuch as G. P. A. of a party is not a substitute for the party as held by the Apex court in Janki Vashdeo Bhojwani and another v. Indusind Bank Limited and since the Court can grant permission to a party to examine himself at any stage, revision petitioner may be afforded an opportunity to examine himself as a witness. ( 3 ) THE contention of the learned counsel for the respondent is that since the petition is filed only with a view to drag on the proceedings and since reasons for not examining the petitioner are not specifically stated in the affidavit filed in support of the application and since it is baldly stated "to avoid technicalities, my Advocate advised me to examine my son as a witness as I am representing him as plaintiff under Power of attorney", there are no grounds to interfere with the order under revision. ( 4 ) SINCE Rule 3-A of Order 18 C. P. C. vests the Court with the power to permit a party to be examined at a later stage for reasons to be recorded, it is clear that the fact that a party did not obtain permission earlier to examine himself at a later stage, perse, is not a ground to refuse the permission to examine himself as a witness at a later stage. So, petition seeking permission to examine a party as a witness can be filed at any stage during the pendency of the suit, but reason for seeking permission at a belated stage will have to be explained, to enable the Court to record reason for granting permission, provided it wishes to exercise its discretion to grant such permission. So, merely because a party did not reserve his right to come into the witness box, before he examines his witnesses, he ipso facto does not lose his right to examine himself as a witness at a later stage. He can, by giving reasons for his failure to examine himself asa witness earlier, seek permission of the Court to depose in support of his case. ( 5 ) POWER of Attorney of the petitioner gave evidence on behalf of the revision petitioner. But, he is not a substitute for the revision petitioner. So, revision petitioner might have been advised to give evidence. Since the suit is for perpetual and mandatory injunctions, though revision petitioner seems to be guilty of laches, since the other side can be compensated by Costs for the inconvenience caused, and since it is well known that rules of procedure are but handmaids of justice, revision petitioner can be directed to pay rs. 2,000/- as costs to the respondent for his laches. ( 6 ) THEREFORE, on condition of the revision petitioner paying Rs. 2,000/-to the respondent on or before 30-9-2005, this revision and consequential I. A. No. 694 of 2005 would stand allowed without costs. In default, this Civil revision Petition stands dismissed with costs. In the event of the Civil Revision Petition being allowed, revision petitioner should be present in the Court for cross-examination on the date fixed by the trial Court without fail. ( 7 ) THE Civil Revision Petition is ordered accordingly.