Andhra Pradesh High Court - Amravati
Varnakavi Surapa Raju vs Malladi Suryanarayana on 3 November, 2022
THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI
Civil Revision Petition No.2842 of 2019
ORDER:
This Civil Revision Petition under Article 227 of the Constitution of India by the unsuccessful petitioner/defendant is directed against the order, dated 30.08.2019, of the learned X Additional District Judge, at Narsapur, West Godavari District, passed in I.A.No.727 of 2019 in O.S.No.01 of 2017, filed under Order XVI Rule 14 CPC read with Section 151 CPC to order for issuance of summons to Ardhani Santakumari @ Santi W/o Srinivas, 5th Ward, Guda Narayanamurthy Street, Madhavayapalem, Narasapur, West Godavari District, to examine her as a court witness.
2. Heard Sri Saraschandra Babu Jakkamsetty, learned counsel for the revision petitioner/defendant and Sri Sai Gangadhar Chamarty, learned counsel for the respondent/plaintiff. Hereinafter, the parties shall be referred as the plaintiff and the defendant.
3. The facts, in brief, are as follows:
(a) Ardhani Santakumari @ Santi engineered the present suit through her viyyanka, by name, Malladi Suryanarayana, on the basis of a fabricated suit pro-note, dated 09.04.2015. Another suit 2 BSB, J C.R.P.No.2842 of 2019 in O.S.No.76 of 2017 was also filed by her on the file of the Court of Senior Civil Judge, Narsapur, on the basis of another fabricated pro-
note, dated 22.10.2015, for a principal sum of Rs.10,00,000/-. The said Ardhani Santakumari @ Santi was running a chit business and out of undue influence and close association with the petitioner and his wife, she obtained signatures of the petitioner over several blank pro-note forms and blank papers during the chit and other financial transactions. Taking advantage of the custody of the blank pronotes signed by the petitioner and fabricating the same, the said Ardhani Santakumari played crucial role in filing the suits against the petitioner. During the pendency of the suit, the petitioner secured certain documents containing the handwriting of Santakumari. When the request of the petitioner to receive the said documents was rejected, he approached this Court and as per orders, dated 28.06.2019 in C.R.P.Nos.1360, 1366, 1390 and 1391 of 2019, DW1 was recalled and was further examined and documents exhibits B5 to B8 were marked and his evidence is closed. The suit is coming up for arguments. At this stage, the petitioner filed the present petition to order for issuance of summons to Ardhani Santakumari @ Santi W/o Srinivas, 5 th Ward, Guda Narayanamurthy Street, Madhavayapalem, Narasapur, West Godavari District, to examine her as a court witness, in the light of 3 BSB, J C.R.P.No.2842 of 2019 the defence taken by him, more particularly pertaining to documents marked on his side.
(b) The plaintiff filed counter opposing the petition and contending that the present petition is purposefully filed to drag on the matter, as she had filed an independent suit, which is pending on the file of the Court of Senior Civil Judge, Narsapuram. The plaintiff cannot seek to summon the witness on the ground that that his counsel did not pursue the matter effectively in O.S.No.76 of 2017, as there is nothing common in both suits, i.e., O.S.No.1 of 2017 and 76 of 2017. They are filed in different courts. Except the oral assertions of the plaintiff that the said Santha Kumari is the viyyanka of the plaintiff in this suit, no material documents are filed. There no merits in the petition. The petition is liable to be dismissed.
4. On merits, the trial Court dismissed the petition holding that there are no bona fide and tenable grounds, either on facts or under law, to examine Ardhani Santakumari @ Santi, as a court witness.
5. Having been aggrieved of the impugned order, the revision petitioner preferred this revision reiterating his submissions.
6. It is contended by the learned counsel for the revision petitioner that the trial Court ought to have allowed the petition and 4 BSB, J C.R.P.No.2842 of 2019 summoned the witness as a Court witness, since the witness may not support the party who summoned her.
7. As contested in the counter, it is submitted by the learned counsel for the respondent that there is no need for examining the said witness and moreover, as a court witness, as both suits are independent. It is also contended that the petitioner cannot file an application for exercising jurisdiction of the Court to call a witness as a court witness at the instance of one of the parties. In support of his submissions, learned counsel placed reliance on the decisions in Kailasa Bhoomaiah v. Kailasa Eashwaralingam 1, N. Balaraju & others v. G.Vidhyadhar2.
8. The argument that a Court cannot exercise its jurisdiction under Order XVI Rule 14 CPC, at the instance of an application of a party, cannot be countenanced since it is settled law as decided by the Hyderabad High Court in Meka Krishnaveni v. Geddam Kanaka Durga Devi3.
"13. As per the principle enunciated in the cases cited supra, legally there is no bar to file an application under Order 16 Rule 14 CPC by any party to the proceedings to summon any person, to give evidence, as Court witness."1
1989 (1) ALT 487 2 AIR 2004 AP 516 3 2017 (3) Civil Court Cases 306 5 BSB, J C.R.P.No.2842 of 2019
9. When the party has an apprehension of the witness speaking adverse to the party calling the witness, law has already taken care of such situation, as indicated in paragraph Nos.17 and 18 of the decision in Meka Krishnaveni (3rd supra), which read as under:
"17. ......The Court, while exercising the jurisdiction under Order 18 Rule 17 CPC, can summon any witness already examined. A perusal of Order 18 Rule 17 clearly demonstrates that a witness, who was recalled under this provision, cannot be treated as a Court witness. Order 16 Rule 14 CPC deals with summoning any person, to give evidence, as a Court witness basing on the application filed by the parties to the proceedings or suo motu by the Court. A witness recalled under Order 18 Rule 17 CPC cannot be equated with the witness summoned under Order 16 Rule 14 CPC. These two provisions operate in two different situations. A witness who was examined on behalf of either party may be summoned for the purpose of further chief-examination or further cross-examination, as the case may be, if examination of such witness is imperative for proper adjudication of the lis involved in the suit. A party to the proceedings, who examined a person as his own witness, is not entitled to cross-examine him is a general principle. Cross-examination of a witness by a party, who called him as his own witness, is an exception that too with the leave of the Court.
18. If the Court permits a party to the proceedings, while exercising discretionary power under Order 16 Rule 14 CPC, to summon any person as a Court witness, is entitled to examine and cross-examine the witness. This provision is an exception to the general provisions of CPC. The 6 BSB, J C.R.P.No.2842 of 2019 Legislature in its wisdom visualized certain circumstances wherein a party to the proceedings may be compelled to cross-examine his own witness to elicit the relevant information or the truth which eventually may throw some light on the core issue involved in the suit. Therefore, the Legislature incorporated Order 16 Rule 14 CPC to facilitate the party to the proceedings to overcome such an adverse situation due to the reasons beyond his control. In certain circumstances, a party to the proceedings may be forced to examine a person with whom he may not have cordial relation for obvious reasons. He may have apprehension that if that particular person is called as his own witness, he may not speak the relevant facts or truth in his chief- examination for obvious reasons, which ultimately weakens his case, if the veracity of the testimony of that witness is not tested by way of cross-examination. If a party who called a person as his own witness, is permitted to cross- examine him, to certain extent he may set right the things by eliciting some admissions by putting suggestions in the cross-examination. The underlying object of Order 16 Rule 14 CPC is to protect the interest of the party to the proceedings, who summons a person as his own witness. Wittingly or unwittingly, the respondent filed an application under Order 18 Rule 17 CPC. Allowing of such an application is nothing short of granting a relief under Order 16 Rule 14 CPC. The trial Court has lost sight of this vital aspect. The trial Court, without considering the distinction between Order 18 Rule 17 CPC and Order 16 Rule 14 CPC, allowed the petition filed by the respondent."
10. Insofar as the necessity to call the witness is concerned, if at all, the petitioner intends to call a third party as a witness to the 7 BSB, J C.R.P.No.2842 of 2019 suit, appropriate step should have been taken at the trial itself and not at the fag-end of the case, i.e., at the stage of argument.
11. Merely because the name of a witness is not shown in the list of witnesses, it cannot bar a party from examining a witness and on that ground, petition cannot be resisted, but since there is no merit in the petitioner's request to issue summons to Ardhani Santakumari @ Santi, to examine her as a court witness under Order XVI Rule 14 CPC, the revision petition is liable to be dismissed. Thus, this Court finds no irregularity or illegality in the impugned order warranting interference in exercise of powers under Article 227 of the Constitution of India.
12. Accordingly, the Civil Revision Petition is dismissed.
There shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
__________________ B. S. BHANUMATHI, J 03rd November, 2022 RAR