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Andhra High Court · body

2013 DIGILAW 940 (AP)

Mohd. Khadeer v. K. Venkatesham

2013-10-30

G.ROHINI

body2013
ORDER All these revision petitions arising out of the execution proceedings in OS No.655 of 1989 on the file of the Court of the IX Junior Civil Judge, City Civil Court, Hyderabad, are heard together and decided by this common order. 2. I have heard the learned Counsel for both the parties. As could be seen from the material available on record, OS No.655 of 1989 which was filed for recovery of money was decreed as prayed for. In pursuance thereof the decree-holders filed EP No.8 of 2013 for execution of the decree by attachment and sale of the E.P. schedule properties. Several claim petitions came to be filed under Order XXI Rule 58 of C.P.C. claiming title and possession to the E.P. schedule property. The said claim petitions were contested by the decree holders contending inter alia that the possession of the E.P. schedule property was already delivered to them by the bailiff. While so, the claim petitioners filed applications with a prayer to summon the Court bailiff for cross-examination by them with regard to the interim reports dated 24.3.2011 and 22.11.2012 as well as the final report dated 26.11.2012 filed by the bailiff. It was alleged by the claim petitioners that the Court bailiff prepared the interim reports and final report in collusion with the decree-holders and in fact the possession of the schedule property was never delivered to the decree-holders and that the same continues to be in possession of the claim petitioners. The said allegations were denied by the decree-holders and it was contended that the petitions were filed with false and baseless allegations only to delay the disposal of the claim petitions. 3. By separate orders passed on 15.4.2013 the Court below allowed all the applications filed by the claim petitioners and directed summons to be issued to the Court bailiff to appear as a witness. The operative portion of the order dated 15.4.2013 reads as under: "As per the above provision of law (Order 18 Rule 3A of CPC), usually a party to be examined as a witness first, before the other witnesses are examined but the Court for the reasons to be recorded, permits a party to appear at a later stage after examining other witnesses. In the present case also, the Court is of opinion that the bailiff report is the crucial one to decide the claim petitions. In the present case also, the Court is of opinion that the bailiff report is the crucial one to decide the claim petitions. Petitioner is making certain allegations against bailiff. If the bailiff is examined first, the real facts will come out. Since the bailiff is a Court witness, he will be examined as CW1. The claim petitioner's witnesses will be examined in the order as PW1 and PW2 in view of Rule 95 of the A.P. Civil Rules of Practice and Circular Orders. There will not be any confusion with regard to serial number of the witnesses. One way or the other way, the bailiff has to be examined by the claim petitioners. If the bailiff is examined first, no loss will be caused to the respondents. So, to avoid further delay, the petition is allowed. Issue summons to the Court bailiff, M. Krishna Naik to appear as a witness before the Court in respect of his reports flied before the Court. Call on 22.4.2013." 4. These revision petitions are filed by the decree-holders against the above said orders passed in EA Nos.106, 104, 154, 108, 109, 105 and 38 of 2013 respectively. 5. It is vehemently contended by Sri M.V.S. Suresh Kumar, the learned Counsel for the petitioners in some of the revision petitions that the Court below committed a grave error in directing the bailiff to give evidence at the first instance invoking powers conferred under Order XVIII Rule 3A of C.P.C. According to the learned Counsel, the request of the claim petitioners can be considered at the most under Order XVI Rule 1(2) of C.P.C. and the bailiff could have been summoned for cross-examination after the claim petitioners entered the witness box and gave their evidence. In support of his submission, the learned Counsel has relied upon a decision of this Court in V. Devi Ravindra Prasad v. Rukmini Bayamma, 2006 (5) ALD 112 and a decision of the High Court of Bombay in Sanjay Narayanrao Barde v. Sau Vimal Keshaorao Bairam, 2000 (1) LAWS (Bom.) 33. 6. Sri K.B. Ramanna Dora, the learned Counsel appearing for the petitioners in the other revision petitions has also made his submissions on the same lines. 7. 6. Sri K.B. Ramanna Dora, the learned Counsel appearing for the petitioners in the other revision petitions has also made his submissions on the same lines. 7. On the other hand, Sri P. Shiv Kumar, the learned Counsel appearing for the respondents/claim petitioners while relying upon Garigipati Kesava Rao v. Prathipati Srilakshmi, 2006 (3) ALD 66 = 2006 (3) ALT 596 and G. Balaiah v. G. Ramchander, 1997 (5) ALD 683 = 1997 (5) ALT 463 , sought to justify the orders under revision. 8. As noticed from the submissions made by the learned Counsel for the petitioners, the only grievance of the petitioners is that the bailiff cannot be examined at the first instance i.e., even before the witnesses on behalf of the claim petitioners are examined. In other words, though the right of the claim petitioners to seek the bailiff to be summoned to give evidence is not in dispute, the only controversy is at what stage the bailiff can be examined. 9. For proper appreciation of the controversy involved, it would be appropriate to refer to Order 18 Rule 3A of C.P.C. as well as Order 16 Rule 1 of C.P.C. Order 18 Rule 3A. Party to appear before other witnesses.––Where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined, unless the Court, for reasons to be recorded, permits him to appear as his own witness at a later stage. Order 16 Rule 1. List of witnesses and summons to witnesses.––(1) On or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court. (2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned. (2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned. (3) The Court may, for reasons to be recorded, permit a party to call whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list. (4) Subject to the provisions of sub-rule (2) a summonses referred to in this rule may be obtained by the parties on an application to the Court or to such officer as may be appointed by the Court in this behalf. 10. Order 16 Rule 1 (2) and (3) of CPC provides for summoning through Court a witness at the instance of a party to the suit. Whereas sub-rule (2) entitles the party to seek attendance of any person by summoning through Court stating the purpose for which the witness is proposed to be summoned, under sub-rule (3), the parry is permitted to call any witness by summoning through Court if sufficient cause to the satisfaction of the Court is shown for omission to mention the name of such witness in the list of witnesses. 11. Coming to Order 18 which provides for examination of witnesses, Rule 3A makes it clear that where a party himself wishes to appear as a witness he shall so appear before any other witness on his behalf has been examined. Therefore, all other witnesses will normally come into the witness box after the party to the proceedings who wishes to appear as a witness gives his evidence. However, in exceptional circumstances the parry to the proceedings may seek permission of the Court as provided under the later part of Rule 3A to appear as a witness on his behalf at a later stage. 12. The above procedure prescribed under Order 18 Rule 3A of C.P.C. is with regard to the examination of the witnesses whom a party wants to examine on his behalf. 12. The above procedure prescribed under Order 18 Rule 3A of C.P.C. is with regard to the examination of the witnesses whom a party wants to examine on his behalf. The scope of Rule 3A and at what stage such power can be exercised by the Court has been considered by this Court in V. Devi Ravindra Prasad's case (supra) and Garigipati Kesava Rao's case (supra) and the ratio laid down therein is not in dispute. 13. The contention of the learned Counsel for the petitioners is that though normally the bailiff is a Court witness, in the facts of the present case he has to be treated only as a witness sought to be examined by a party on his behalf and therefore under no circumstances he can be permitted to depose even before the party-witness is examined. 14. Order 16 Rule 14 of C.P.C. empowers the Court to summon any person who is not called as a witness by a party to the suit, to give evidence or to produce any document in his possession on a day to be appointed by the Court. Such power can be exercised by the Court of its own motion, however the same shall be subject to the provisions of C.P.C. as to attendance and appearance of the witnesses. A witness so summoned by the Court on its own motion is considered to be a Court witness and as per Order 16 Rule 14 of C.P.C. examination of even a Court witness shall be subject to the other provisions of the C.P.C. To put it in a different way, the examination of even a Court witness can be after examination of a party-witness unless the Court for the reasons to be recorded is of the opinion that such Court witness shall be examined in the first instance. 15. So far as the present case is concerned, the bailiff who is stated to have delivered the possession to the decree-holders in execution of the warrants issued by the executing Court, is indisputably a Court witness and he will be invariably examined after the evidence is adduced by both the parties. However, this is a case where the claim petitioners made several allegations against the bailiff and they wanted to summon the bailiff through Court to give evidence. 16. However, this is a case where the claim petitioners made several allegations against the bailiff and they wanted to summon the bailiff through Court to give evidence. 16. Even assuming that the bailiff in the peculiar facts and circumstances of the case cannot be considered as a Court witness, nothing prevents the Court to exercise the power conferred under Order 18 Rule 3A of CPC and to examine him even before the party-witnesses are examined. However, the condition precedent to exercise the said power is to record the reasons therefor. 17. Having carefully gone through the order under revision, this Court is satisfied that valid reasons were assigned by the Court below for summoning the bailiff to appear as a witness in the first instance. 18. In the totality of the facts and circumstances of the case, the Court below cannot be held to have committed any error in accepting the request of the claim petitioners to summon the Court bailiff to give evidence at the first instance. 19. For the aforesaid reasons, particularly in view of the fact that no prejudice can be said to have been caused to the decree-holders by examining the Court bailiff at the first instance, I do not find any justifiable reason to interfere with the orders under revision. 20. Accordingly, all the civil revision petitions are dismissed. No costs. 21. Consequently the miscellaneous petitions, if any, pending in all these civil revision petitions shall stand closed.