Andhra HC (Pre-Telangana)
Naseem Noorullah vs Abdul Salam on 15 March, 2002
Equivalent citations: 2002(3)ALD326
ORDER Dubagunta Subrahmanyam, J.
1. This revision petition is filed against the order dated 10-9-1999 in IA No. 870 of 1999 in OS No. 885 of 1995 on the file of the III Additional Junior Civil Judge, Visakhapatnam.
2. The plaintiff is the revision petitioner. She filed the petition in IA No,870 of 1999 under Section 151 CPC requesting the trial Court to permit her husband to adduce evidence in the suit on her behalf in the interest of justice, equity and good conscience. The said petition was opposed by the respondent-defendant. The trial Court dismissed the said application by order-dated 10-9-1999. Aggrieved by that order, this revision petition is filed.
3. As per Section 120 of the Indian Evidence Act, 1872, in all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In the present case, the plaintiff wants to examine her husband as a witness on her behalf. He is a GPA holder of the plaintiff. Even if he is not a GPA holder of the plaintiff, he is a competent witness to give evidence on behalf of the plaintiff.
4. In the impugned order, the learned Junior Civil Judge placed reliance on a judgment of a learned single Judge of this Court in K. Bharathi v. Labour Officer, . In that decision, it was held that a power of attorney holder of a party is not entitled to appear as a witness on behalf of the party in the capacity of that party. It was further held that the party cannot stay back without entering into the witness box and subjecting herself to cross-examination. It was also held that if for any reason the party cannot give evidence, the party can file a petition to record the evidence of the party on commission.
5. The suit is not filed by the plaintiff represented by her GPA holder. The plaintiff wants to examine her husband as a witness. The learned Counsel for the respondent invited the attention of this Court to the averment in the affidavit filed by the petitioner. She stated in her affidavit that she is well acquainted with the facts of the case. According to the learned Counsel for the respondent, as the plaintiff is well aware of the facts of the case, she should appear as witness and give evidence and she cannot be permitted to stay back and examine her husband as a witness. In my considered opinion, if any person having knowledge of the facts of the case and especially a party with full knowledge of the facts of the case fails to appear and give evidence in support of his case, it is a circumstance to be taken note of by the Court while appreciating the evidence adduced by both the parties and dispose of the suit finally. The Court is competent to draw art adverse inference against the party concerned for not appearing before the Court and for not giving evidence without any reasonable or justifiable cause. That is a different aspect.
6. In my considered opinion, just because the plaintiff is aware of the full facts of the case, the plaintiff cannot be prevented from examining her husband or any other person as a witness on her behalf. After the parties adduce evidence, any party to the suit is at liberty to request the Court to draw adverse inference, if a competent witness is not examined by any of the parties in the suit without valid or justifiable ground. In my considered opinion, there is no need for any party to file a petition and seek permission of the Court to examine a particular witness in a case.
7. The learned Counsel for the respondent invited the attention of this Court to a decision of the Supreme Court in Kundan Lal v. Custodian, Evacuee property, AIR 1961 SC 1316. In that decision, the Supreme Court made a reference to a judgment of the Privy Council in Murugesam Pillai v. Gnan Sambandha Pandara Sannadhi, AIR 1917 PC 6. The Privy Council held that a practice has grown up in Indian procedure of those in possession of important documents or information lying, by trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to the Courts the best material for its decision. There can be no objection whatsoever for the above principle of law stated by the Privy Council. I have already stated supra that if the best evidence is withheld by any party, the other party is at liberty to request the Court to draw adverse inference against the party concerned for not producing the best evidence available on record.
8. By Amendment Act 104 of 1976, the Parliament introduced a new provision, namely Order 18, Rule 3-A CPC. As per that provision, 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 the reasons to be recorded, permits him to appear as his own witness at a later stage.
9. If the plaintiff in the present suit wants to give evidence as a witness in her suit, she has to give evidence at the first instance. If she does not wish to examine herself as a witness in the suit, she is directed to file an affidavit to that effect in the trial Court, and then, examine the other witnesses she chooses including her husband. The decision relied upon by the trial Court did not take into consideration the above aspects. In the above decision, it was not considered whether a Court has got power to prevent a party from examining a competent and relevant witness before the Court. The Court has no power to prevent any competent and relevant witness being examined by any party to a suit. As that aspect was not considered in the above decision of a learned single Judge of this Court, I am not following the above decision in rendering a decision in the present revision petition. There is also one other reason. The effect of the amended provision in Order 18, Rule 3-A CPC was also not considered in the above decision. Therefore, I am not following the above decision and applying those principles to the facts of the present case. It is not the plea of the defendant that the husband of the plaintiff is not competent or relevant witness to give evidence in the suit. Being the husband of the plaintiff, naturally and in all probability, he would be aware of the relevant facts relating to the dispute in the suit. Therefore, by no stretch of imagination, the plaintiff cannot be prevented from examining the said competent and relevant witness on her behalf.
10. In the result, the revision petition is allowed. The impugned order is set aside. The plaintiff is directed to file an affidavit in the trial Court if she does not wish to examine herself as a witness on her behalf and then she is at liberty to examine any other competent and relevant witness including her husband as a witness on her behalf. It is open for the Court to draw necessary inferences as per law against the conduct of the plaintiff, without sufficient or valid reason, in not giving evidence in her suit. This clarification is given on the request of the learned Counsel for the respondent. If the plaintiff wants to treat her husband as her GPA holder, she has to follow the procedure prescribed in Rule 38 of the Civil Rules of Practice. No costs.