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2010 DIGILAW 4 (MP)

Yogendra Kumar v. Pavan Kumar Jain

2010-01-04

ALOK ARADHE, K.K.LAHOTI

body2010
ORDER 1. This petition is directed against an order dated 5.11.2009 by which the trial Court rejected an application filed by the petitioner under Order 18 Rule 12, CPC. 2. It is submitted by Shri Dwivedi that the trial Court ought to have allowed the applications filed by the petitioners under Order 18 Rule 12, CPC to record the demeanour of the witness during the course of his examination. 3. From the perusal of the record, we find that the witness, Pawan Kumar Jain, plaintiff was examined on 15.9.2009 and in respect of his demean our during the course of cross-examination, the petitioner moved an application on 24.9.2009 to record his demeanour which has been rejected by the trial Court by the impugned order. 4. The learned counsel for the petitioner submitted that the demeanour of the witness ought to have been recorded by the trial Court by allowing the application. In support of his contention, he referred Single Bench judgment of Andhra Pradesh High Court in re, Venkatarama Iyer, Appellant, AIR 1957 AP 441, and submitted that the trial Court erred in rejecting the application filed by the petitioners. 5. From the perusal of the impugned order, we find that the witness was examined on 15.9.2009 and the application was moved on 24.9.2009, i.e., nine days after his examination. The trial Court while rejecting the application observed in the order that the demeanour of the witness was already recorded by the trial Court. Though the learned counsel for the petitioner disputed this position and submitted that no such demeanour was recorded by the trial Court, but from the perusal of the statement of witness Pawan Kumar Jain in para 23 of his statement, we find that the trial Court recorded the event occurred in the Court. The petitioners, who were insisting to record demeanour of witness, ought to have insisted then and there during the course of examination of the witness and not subsequently. If some derogatory remark was made by the witness to the counsel of the petitioners, even then such an application ought to have been filed on the very same day, but such recourse was not taken. 6. Order 18 Rule 12 CPC, provides that the Court may record such remarks as it thinks material respecting the demeanour of any witness while the witness is under examination. 6. Order 18 Rule 12 CPC, provides that the Court may record such remarks as it thinks material respecting the demeanour of any witness while the witness is under examination. The scope of Order 18 Rule 12, CPC is that the demeanour can be recorded when the witness is under examination and not at a subsequent stage. At this stage after a period of 4-months, if such prayer is allowed, naturally the evidence is to be recorded in respect of event of 15.9.2009 which is not permissible under Order 18 Rule 12, CPC. 7. In Venkatarama Iyer (supra), a learned Single Judge of Andhra Pradesh High Court considering the question of remarks on demeanour of witness held in para 11 of the judgment that :- "The Court may record such remark as it thinks material respecting the demean our of any witness while under examination. It is a salutary rule that the facts observed by a trial Judge regarding the demean our of a witness while in the witness box should be immediately, placed on record by the Judge, especially in cases involving the liberty of the citizen. The learned Judge further held that the omission may be immaterial, where as observed by Lord Atkin during the arguments in Seethalakshmi Ammal v. Venkatasubramanian, AIR 1930 PC 170, the judge writes his judgment a very few days after the close of the evidence and before his recollection of the witnesses' demeanour in the box has become dim. It was held that the demeanour of the witness is to be recorded while the witness is under examination But at any subsequent stage by filing of an application such demeanour cannot be recorded. Apart from this, the Order 18 Rule 12, CPC does not provide for holding of an inquiry in respect of the demeanour of witness transpired during the Course of examination. 8. In view of the aforesaid, the trial Court has not committed any error of jurisdiction in rejecting the application filed by the petitioners on 14.9.2009 for recording the demeanour of the witness who was examined on 15.9.2009. This petition is without merit and is dismissed with no order as to cost.