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2023 DIGILAW 1423 (AP)

A. P. Bhakathavasthalam v. Jabbala Chandramma

2023-11-02

K.SREENIVASA REDDY

body2023
JUDGMENT 1. This Civil Revision Petition has been filed against the docket order, dtd. 24/1/2023, passed in IA No.19 of 2023 in OS No.28 of 2016 by the learned Additional Junior Civil Judge, Puttur. 2. Respondent herein filed the aforesaid suit seeking permanent injunction restraining the defendant, his men, agents, assignees, servants or anybody claiming under them from in any way interfering with the peaceful possession and enjoyment of the plaintiff in respect of the plaint schedule mentioned property. After filing of written statement by petitioner/defendant, trial began in the suit. P.W.1 was examined. When affidavit in lieu of examination-in-chief of P.W.2 is filed, counsel for petitioner/defendant endorsed on the same that the said witness, who is son of P.W.1, was sitting in the Court hall during the cross-examination of P.W.1 and observed all material cross-examination done by the counsel for the defendant, and hence, his chief affidavit is to fill up lacunae and requested to reject the chief affidavit of P.W.2. Thereupon, the petitioner/defendant filed IA No.19 of 2023 has praying to reject the chief affidavit of PW2, by stating the aforesaid facts. It is stated by the learned counsel for the petitioner/defendant that instead of addressing the grievances of the petitioner herein, the learned Judge appointed an Advocate Commissioner to record the evidence of plaintiff and defendant and to mark documents. By the impugned docket order dtd. 24/1/2023, the learned Judge directed to lodge the said petition in the records holding that the above objections, if any, shall be decided at the stage of arguments in main suit, as the aforesaid suit is a pre-2018 suit which shall be disposed of by 30/4/2023 in view of the Circular of the High Court dtd. 23/11/2022. 3. Heard both the counsel. Perused the record. 4. Learned counsel appearing on behalf of the petitioner relied upon a decision of this Court in M.Venkataratnam Reddy Vs. P.L.Manogaran & Ors., Order dtd. 8/2/2013 in CRP No.253 of 2013. Wherein it was held that: "The cross-examination of a witness has its own significance. Several important aspects will be elicited from the witnesses and the strength or weakness of the suit would depend upon the extent, to which the information is elicited in the cross-examination. For all practical purposes, the chief-examination has been reduced to an empty formality with the creation of facility of filing of affidavits in lieu of chief examination. Several important aspects will be elicited from the witnesses and the strength or weakness of the suit would depend upon the extent, to which the information is elicited in the cross-examination. For all practical purposes, the chief-examination has been reduced to an empty formality with the creation of facility of filing of affidavits in lieu of chief examination. If a party to a suit intends to examine more witnesses than one, the basic requirement is that when one of the witnesses is being examined. Others who are proposed to be examined as witnesses, are not present in the Court. If they are present, they would naturally become alert and fill the lacunae, that may be left in the evidence of the person, who is already examined as a witness. The Law does not permit this. However, exactly the same thing has happened in the instant case. When the cross examination of DW2 was in progress, a person who is proposed to be examined as DW3, was present in the Court through out. The trial Court has taken correct view of the matter, when it held that the evidence of DW3 cannot be recorded at all and that the affidavit filed by him in lieu of chief-examination is liable to be eschewed from consideration. If at all anything, the trial Court has only enforced a fundamental principle and basic tenet of law of evidence. The petitioner has to blame himself for not ensuring that a witness, who is proposed to be examined by him, is not in the Court, when the other witness is being cross-examined." 5. It is a basic and fundamental principle of law of evidence that when one of the witnesses is being examined, the other person, who is proposed to be examined as a witness on behalf of the said party, is not expected to be present in the Court. If such witness is present, it is natural that he would become alert and fill up lacunae, if any, that may be left in the evidence of witness already examined. 6. Learned counsel appearing on behalf of the respondent relied upon on a decision in BIPIN SHANTILAL PANCHAL Vs STATE OF GUJARAT, 2001 LawSuit (SC) 332. If such witness is present, it is natural that he would become alert and fill up lacunae, if any, that may be left in the evidence of witness already examined. 6. Learned counsel appearing on behalf of the respondent relied upon on a decision in BIPIN SHANTILAL PANCHAL Vs STATE OF GUJARAT, 2001 LawSuit (SC) 332. wherein it was held that: "It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fall out of the above practice is this: Suppose the trial court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or revisional court, when the same question is re-canvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial court. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-moulded to give way for better substitutes which would help acceleration of trial proceedings. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the judge or magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. If the court finds at the final stage that the objection so raised is sustainable the judge or magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed." Learned counsel for the respondent, by relying upon on the said judgment, strenuously contended that it is obligatory on the part of the Court below that when an objection has been raised during evidence taking stage regarding admissibility of any material or item of oral evidence, the trial Court has to make note of such objection and the same has to be decided at the final judgment. The practice is being adopted so as to, not to dodge with the trial. In case, if the Court below comes to a conclusion at the final stage the said evidence can be excluded. 7. In the present case on hand, it is not the case of admissibility of any material or item of oral evidence. It is the specific case of the petitioner/defendant that throughout the cross examination of PW1, the proposed witness (PW2) was present in the Court. Such practice is not legal and the same is against the principles of natural justice. The Court below ought not to have entertained the same. An objection has been raised by the petitioner herein during the cross examination of PW1, with regard to presence of PW2 in the Court. It is pertinent to mention here that whether such an objection has been raised at the relevant point of time or subsequently, has to be gone into. In view of the same, it is essential that the issue has to be decided at that stage only but not beyond. It is needless to mention here that a party should not be kept under mirage whether an Order would be passed in its favour or not, in future, for the reason that allowing P.W.2 to sit in the Court hall while crossexamination of P.W.1 was going on, goes to the root of the case. It is needless to mention here that a party should not be kept under mirage whether an Order would be passed in its favour or not, in future, for the reason that allowing P.W.2 to sit in the Court hall while crossexamination of P.W.1 was going on, goes to the root of the case. The Court below ought not to have adjourned decision on the said objection, on the pretext that the same would be decided at the stage of arguments of the main suit. 8. In view of the said reasons, the impugned Order is set aside. The matter is remanded back to the Court below with a direction to pass appropriate orders in accordance with law in I.A.No.19 of 2023 in O.S.No.28 of 2016 on the file of the Additional Junior Civil Judge, Puttur, as to whether the evidence of PW2 is to be eschewed or not, within a period of two (2) weeks from the date of receipt of a copy of this order. The learned Judge is further directed to give an opportunity to the respondent/plaintiff for filing counter. The parties shall co-operate with the disposal of the I.A. as well as the suit expeditiously. 9. Accordingly, the Civil Revision Petition is disposed of. There shall be no order as to costs. As a sequel thereto, the miscellaneous applications, if any, pending in this Civil Revision Petition shall stand closed.