Research › Search › Judgment

Andhra High Court · body

2010 DIGILAW 562 (AP)

Chukka Ramaiah v. Chekuru Bujjiah

2010-07-05

L.NARASIMHA REDDY

body2010
JUDGMENT :- The respondent filed O.S.No.62 of 2007 in the Court of Junior Civil Judge, Nandalur for recovery of certain amounts on the basis of a promissory note. The petitioner denied the allegations made by the respondent. The trial of the suit commenced and the evidence adduced on behalf of the respondent was recorded. The petitioner deposed as DW.1. He wanted to examine scribe of the promissory note as DW.2. As a matter of fact, an affidavit in lieu of chief examination of DW.2 was filed. The petitioner filed I.A.No.20 of 2010 under Section 31 read with Section 151 CPC with a prayer to issue summons to DW.2. The application was opposed by the respondent. The trial Court dismissed the I.A., through its order dated 5.02.2010. Hence this revision petition. Sri N. Nagaraju, learned counsel for the petitioner submits that though DW.2 agreed to depose as a witness in relation to the allegation as to his scribing the promissory note, he refused to cooperate after filing the affidavit in lieu of chief examination. He submits that the trial Court has ample power to summon such witness. The respondent was served with notice, but he has not chosen to enter appearance. In the course of trial, the respective parties have two options in the matter of ensuring presence of witnesses. The first is that they can themselves ensure the presence of the witnesses and the Court can certainly record the evidence of such witnesses. The second option is where, for one reason or the other, the party is not able to secure the presence of the witness, but needs the assistance of the Court. In such cases summons can be issued by the Court, provided the Court is satisfied that the evidence of such witness is relevant and necessary. The procedure that is prescribed for service of summons to defendants in a suit is made applicable to witnesses also, under Section 31 of CPC. Where a party, whether plaintiff or defendant, has secured the presence of a witness by himself, but is not able to ensure his presence subsequently, Section 31 of C.P.C., has no application. Taking out summons to such witnesses would amount almost to a hybrid exercise, since the presence of the witness is partly procured by the party himself, and for the remaining part he seeks the assistance of the Court. The same is impermissible in law. Taking out summons to such witnesses would amount almost to a hybrid exercise, since the presence of the witness is partly procured by the party himself, and for the remaining part he seeks the assistance of the Court. The same is impermissible in law. The trial Court has taken correct view of the matter and this Court is not inclined to interfere with the same. The Civil Revision Petition is accordingly dismissed. There shall be no order as to costs.