Andhra HC (Pre-Telangana)
Barnala Lakshmana Rao vs Sarnala China Jamalayya And Others on 9 July, 1999
Equivalent citations: 1999(4)ALD429, 1999(4)ALT581
ORDER
1. The orders passed by the Junior Civil Judge, Nuzvid, on the Memo, filed by the respondent herein with regard to eschewing the evidence relating to PW2, has led to the filing of the present revision under Section 115 of CPC.
2. According to the learned Counsel for the revision petitioner, the respondent filed a suit in OS No.99/92 before the learned Junior Civil Judge, Nuzvid, for a permanent injunction. Written statements were filed and issues were also framed by the Court. On behalf of the respondent-plaintiff PW1 was examined in chief and he was also cross-examined on behalf of the defendant-petitioner herein. The second witness on behalf of the plaintiff was examined in Chief as PW2 on 26-2-1998. However, despite several adjournments, the plaintiff was unable to procure the presence of PW2 for cross-examination on behalf of the petitioner-defendant herein. According to the learned Counsel for the petitioner, the respondent presented a Memo, before the Court below on 2-7-1998 stating - "In the above said matter the second witness did not turn up to give and complete his evidence as he was win over by the defendant. As such his evidence may be eschewed and the plaintiff may be permitted to adduce further evidence." The lower Court reacting on the Memo filed by the respondent, accepted the said Memo and passed an order on 2-7-1998 indicating that the evidence of PW2 shall stand eschewed and further directed the matter to be listed on 16-7-1998 for further evidence on behalf of the plaintiff.
3. Learned Counsel for the petitioner submits that when a witness has been examined-in-Chief on behalf of a party, if the said witness fails to subject himself for further cross-examination on behalf of the opposite party, the procedure required to be followed is under Order XVI Rule 10 CPC that is, to issue necessary summons to such witness. In this case, according to the learned Counsel for the petitioner, the Court instead of following this procedure, has only eschewed the evidence of PW2 who is the witness on behalf of the plaintiff, with the result, the advantage the petitioner-defendant would get from the evidence of PW2 in-Chief is lost. According to the learned Counsel, the procedure followed by the trial Court is not permissible and therefore contends that the order impugned in this revision has to be set aside.
4. I have heard the Counsel for the respondent Sri Shekar who opposes the submission made in this regard on behalf of the petitioner. The CPC visualises all such contingencies as and when required and provides safeguards, the present contingency is the plaintiff's inability to secure the presence of his own witness, that is, PW2 for cross-examination on behalf of the defendant. Though the plaintiff stated before the lower Court through the Memo that PW2 has been won over by the defendant, the procedure contemplated in this regard is to summon such a witness before the Court insisting his presence for further evidence. This is precisely what is contemplated under Order XVI, Rule 10 CPC which provides:
(1) Where a person to whom summons have been issued either to attend to give evidence or to produce a document, fails to attend or to produce the document in compliance with such summons, the Court:
(a) shall, if the certificate of the serving officer has not been verified by affidavit or if service of the summons has been effected by a party or his agent; or
(b) may, if the certificate of the serving officer has been so verified, examine on oath the serving officer or the party or his agent, as the case may be, who has effected service or cause him to be so examined by any Court touching the service or non-service of the summons.
(2) Where the Court sees reason to believe that such evidence or production is material and that such person has, without lawful excuse, failed to attend or to produce the document in compliance with such summons or has intentionally avoided service, it may issue a proclamation requiring him to attend to give evidence or to produce the document at a time and place to be named therein and a copy of such proclamation shall be affixed on the outer door or other conspicuous part of the house in which he ordinarily resides;
(3) In lieu of or at the time of issuing such proclamation, or at any time afterwards, the Court may, in its discretion, issue a warrant, either with or without bail, for the arrest of such person and may make an order for the attachment of his property to such amount as it thinks fit, not exceeding the amount of the costs of attachment and of any fine which may be imposed under Rule 12.
5. In other words, if a witness if not present, it is open to the party to file an application seeking issuance of summons to the witness, who shall be bound to appear before the Court. Failure on the part of such witness to appear, the procedure contemplated under law shall be followed.
6. It is no doubt true that no application has been filed by the respondent herein seeking to summon the witness and that in the absence of any application the procedure to be followed under Order XVI, Rule 10 CPC cannot be insisted. It is obvious that if a party makes an attempt to eschew the evidence which is against such party, a duty is also cast on the Court to infer that the party is trying to defeat the advantage that the other party is likely to get as a result of not producing that witness for cross-examination. In the present case, the respondent has not filed a petition seeking to summon PW2 with the sole intention to defeat the advantage the petitioner-defendant is likely to get as a result of the deposition made by PW2 in his Chief-examination. Looking from the procedure contemplated under Order XVI, Rule 10 CPC there is no room for arriving at a conclusion that the Courts are not empowered to insist, filing a petition or permitting the parties to file a petition under Order XVI, Rule 10 CPC requiring the presence of the witnesses who fail to make their appearance for further examination on behalf of the parties.
7. Keeping the above aspects in view I must say the order passed by the trial Court is contrary to the procedure provided under Order XVI Rule 10 CPC. As such the order passed, eschewing the evidence of PW2, who was examined in chief on behalf of the respondent, cannot be sustained and it is accordingly quashed. However, it would be open to the respondent herein to proceed to examine the other witnesses, if any, and complete the evidence on his behalf. It is made clear that the petitioner herein is entitled to take whatever advantages he gets on account of the deposition made by PW2 in Chief.
8. The CRP is allowed as indicated above. No costs.