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2023 DIGILAW 1155 (AP)

Ponari Venkata Rao S/o. Danda Sai v. Katamreddy Malakonda Reddy S/o. Babi Reddy

2023-08-02

V.R.K.KRUPA SAGAR

body2023
ORDER : This Civil Revision Petition is filed under Article 227 of the Constitution of India by the 2nd plaintiff in the suit that is pending before the learned trial Court. Respondent Nos.1 to 3 are defendant Nos.1 to 3 in the suit. Respondent No.4 is 1st plaintiff in the suit. Respondent No.5 is 3rd plaintiff in the suit. In this revision petition, respondent Nos.4 and 5 are shown as not necessary parties. 2. Sri T.C.Krishnan, the learned counsel for revision petitioner and Sri P.Ganga Rami Reddy, the learned counsel for respondent No.1 submitted arguments. 3. This revision assails the order dated 31.12.2018 of learned I Additional Junior Civil Judge, Nellore in I.A.No.237 of 2018 in O.S.No.107 of 2013. By the said order, the application filed by the plaintiffs was dismissed by the learned trial Court. Aggrieved by it, the present revision is filed by the 2nd plaintiff in the suit. 4. O.S.No.107 of 2013 is a suit filed by plaintiffs to declare that the suit schedule property is a public road which could be used only for public purposes and for a permanent injunction restraining the defendants from interfering with the rights of plaintiffs and the public in making use of the suit schedule property and for costs and such other reliefs. 5. Both sides entered their pleadings, issues were settled and trial commenced. Two witnesses testified. Then Sri Ponari Venkata Rao, S/o. Danda Sai, who is the 2nd plaintiff in the suit, filed his examination-in-chief by way of affidavit. This was filed into Court on 06.12.2017. Thereafter, it was on 18.07.2018 the witness/PW.3/Sri Ponari Venkata Rao appeared before the Court. In continuation of his examination-in-chief affidavit, the learned counsel for plaintiffs continued examination-in-chief and the witness stated that he filed his evidence by way of affidavit and subscribed his signature on it. His own counsel then asked him whether he knew contents of evidence affidavit. The reply of the witness was that he did not know the contents. Though the witness so stated that he did not know the contents of his evidence affidavit, he was tendered for cross-examination. The witness was first examined in cross on behalf of defendant No.1. In this cross-examination, the witness said that the suit is filed concerning a road. The reply of the witness was that he did not know the contents. Though the witness so stated that he did not know the contents of his evidence affidavit, he was tendered for cross-examination. The witness was first examined in cross on behalf of defendant No.1. In this cross-examination, the witness said that the suit is filed concerning a road. When he was asked about the boundaries of the suit schedule property and its survey number, he stated that he did not know the survey number or the boundaries of the plaint schedule property. He was then asked about documents filed by the plaintiffs in the suit. Though he is one of the plaintiffs in the suit, his reply was that he did not know what were the documents filed by them in the suit. Thereafter, this witness was tendered for cross-examination on behalf of defendant No.2. It seems that defendant No.2 requested the trial Court to consider the cross-examination held for defendant No.1 applicable for defendant No.2. 6. In the above referred circumstances, where a party witness/2nd plaintiff as PW.3 though admitted his signature on his evidence affidavit, denied his knowledge of contents of what is written in his affidavit, he took recourse by filing an application in I.A.No.237 of 2018 in O.S.No.107 of 2013 under Section 151 C.P.C. before the learned trial Court. By that application he sought leave of the Court to permit him to file an additional affidavit of examination-in-chief. Defendants in the suit filed a counter and resisted the petition. After due enquiry, by an order dated 31.12.2018 the learned trial Court dismissed that petition. In the impugned order, the learned trial Court explained the principles contained in Sections 137 and 138 of the Indian Evidence Act, 1872 which hold the legislative mandate about examination of witnesses and their cross-examination and re-examination. It then stated that the provisions of law do not indicate any principle allowing a Court to receive additional evidence of chief examination subsequent to cross-examination of the witness by the adversary. It was in those circumstances, it dismissed the petition. 7. Aggrieved by it, the 2nd plaintiff has come up with this revision. 8. It then stated that the provisions of law do not indicate any principle allowing a Court to receive additional evidence of chief examination subsequent to cross-examination of the witness by the adversary. It was in those circumstances, it dismissed the petition. 7. Aggrieved by it, the 2nd plaintiff has come up with this revision. 8. Learned counsel for petitioner submits that the witness was illiterate and because of the time lapse between filing of the affidavit and cross-examination of the witness, he did not realize that he was asked about contents of his own affidavit and he simply denied its contents. Considering such factual situation, the learned trial Court ought to have permitted further examination-in-chief by way of affidavit and that could not have caused any prejudice to the opposite side but the learned trial Court erroneously dismissed the petition causing failure of justice and therefore, an opportunity be given to permit the plaintiffs to have further evidence of PW.3 by way of an additional examination of chief affidavit. 9. As against it, learned counsel for contesting respondent submit that the view taken by the trial Court is in accordance with law and no error of law is shown in this revision by the revision petitioner. It is further submitted that subsequent to the above referred events, the trial in the suit progressed, plaintiffs completed evidence on their behalf and the defendants adduced evidence on their behalf and now the suit stood posted to for hearing arguments on both sides. It is further submitted that subsequent to completion of evidence on both sides, the plaintiffs with a view to further protract the litigation also filed an application for appointment of commissioner and the learned trial Court dismissed that on merits. It is further stated that the present revision is one such method adopted to delay the disposal of the suit and when the trial Court acted in accordance with law, this Court cannot interfere with the impugned order. 10. Having considered the rival contentions and the material on record, the following aspects are to be stated: Order XVIII Rule 4 of Code of Civil Procedure provides that examination-in-chief of the witness shall be on an affidavit and copies of it should be served on the opposite side well in advance. Thereafter, the cross-examination of that witness would be conducted in the Court. Thereafter, the cross-examination of that witness would be conducted in the Court. In the present case, party witness tendered his evidence in chief by way of affidavit. After Court administered oath to the witness, his own counsel elicited from him that the signature on that affidavit was subscribed by the witness himself. Then when the witness was asked about his knowledge of the contents of his own evidence affidavit, the witness stated that he did not know the contents of his affidavit. Pausing here for a moment one shall see that earlier to the present method of recording evidence as provided in Order XVIII Rule 4 C.P.C. (the present Order XVIII Rule 4 C.P.C. was brought into statute book with effect from 01.07.2002 by virtue of Act 22 of 2002 which amended the Code of Civil Procedure) examination-in-chief of the witness was also recorded before the Court. With a view to achieve speedy disposal of the trials of the cases, more than two decades ago, legislature has introduced Order XVIII Rule 4 C.P.C. which is now available. All that is happened by virtue of change is that instead of recording the evidence before the Court, the duty is now placed on the legal profession, thereby meaning advocates appearing for the parties to follow the same procedure in their chambers. Meaning thereby that they have to personally examine the witness and get his statement recorded in his presence and then transcribe the same on an affidavit which is to be filed in the Court. Dispensation of oral evidence by way of examination-in-chief before the Court is not dispensing with the procedure for recording evidence. The place of recording evidence has only changed. The procedure for recording the evidence even at the stage of examination-in-chief remains substantially the same. This has been the view expressed in Shamrao Vishnu Kunjir v. Suresh Vishnu Kunjir, AIR 2005 Bom 294 . When this being the truth of the legal matter and when the witness said to his own counsel that he did not know the contents of his examination-in-chief affidavit, he was still tendered for cross-examination. A witness need not be tendered for cross-examination till his evidence is completed in chief. When the party witness was tendered for cross-examination, it implies that his evidence in chief was completed. In the case at hand, this party witness was questioned in cross on behalf of the defendants. A witness need not be tendered for cross-examination till his evidence is completed in chief. When the party witness was tendered for cross-examination, it implies that his evidence in chief was completed. In the case at hand, this party witness was questioned in cross on behalf of the defendants. Therefore there could be no further evidence in chief by an additional affidavit. It is thereafter the 2nd plaintiff filed the petition and invited the impugned order from the trial Court. 11. In the light of the purpose and object of Order XVIII Rule 4 C.P.C. and in the light of the law governing the legal profession with reference to witnesses and preparation of their affidavits by way of examination-in-chief, it does not lie within the competence of the revision petitioner to say that he is illiterate and did not know what was happening etc. Be it noted, trial proceeded further and now it stood posted to for hearing arguments on both sides. In the opinion of this Court, the reasons and conclusions arrived at by the trial Court in the impugned order cannot be said to be against law or suffer from impropriety or could be termed as irregular. In such circumstances, this Court finds no reason to revise the said order in terms of Article 227 of the Constitution of India. 12. In the result, this Civil Revision Petition is dismissed. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall stand closed.