Andhra HC (Pre-Telangana)
Chava Seethamma And Ors. vs Kolaguntla Malakonda Reddy And Anr. on 21 July, 1993
Equivalent citations: 1993(3)ALT182
ORDER M.N. Rao, J.
1. This civil revision petition is directed against the order passed by the Principal Munsif Magistrate, Narasaraopet in I.A.-No. 591 of 1991 in O.S.No. 173 of 1988 scoring out the evidence of D.W.1 under Order 18 Rule 3-A of the Code of Civil Procedure (for short "the Code").
2. The suit, O.S.No. 173 of 1988, was instituted for recovery of possession in respect of the plaint schedule land. The petitioners herein are the defendants in the suit, O.S.No. 141 of 1988, was instituted by the present petitioners in respect of the same land seeking permanent injunction against the respondents-plaintiffs in O.S.No. 173 of 1988. After the evidence of plaintiffs' witnesses was over in O.S.No. 173 of 1988, the third defendant came forward to give evidence as D.W.1 without obtaining the permission of the Court. Before his evidence could be completed1, an interlocutory application, I.A.No. 591 of 1991, was filed on behalf of the plaintiffs to exclude his evidence from consideration on the ground that when defendants 1 and 2 also are going to give evidence after the third defendant the required permission under Order 18 Rule 3-A of the Code ought to have been obtained. Sustaining that objection, the learned Principal Munsif Magistrate allowed the said LA. Aggrieved by that, the present civil revision petition was filed.
3. Order 18 Rule 3-A of the Code is in the following terms:
"Party to appear before other witnesses:-
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 reasons to be recorded, permits him to appear as his own witness at a later stage."
When the evidence of the plaintiffs was over, it was open to defendants 1 and 2 in that order to figure as witnesses. If defendant 3 wants to give evidence in the first instance as D.W. 1, he must necessarily obtain permission of the Court, it is obligatory on the part of the Court to state reasons for according such a permission. Evidently this procedure is intended to advance the cause of justice, where there are more than one defendant, in the order, in which the defendants are arrayed, they should give evidence, otherwise there is every likelihood of gaps in the evidence being filled up. Same reasoning applies if there are more than one plaintiff. If the procedure as contemplated under Rule 3-A of Order 18 of the Code is not adhered to, there is every likelihood of the parries insisting upon, at every stage, the court to grant permission to lead rebuttal evidence.
4. The reason stated for defendants 1 and 2 not coming forward to give evidence earlier than defendant 3, is absolutely immaterial. What is material is that the permission of the Court had not been obtained. Even if such a permission were to be sought, it would be highly doubtful whether the Court would accede to such a request; when the first defendant is said to be an old woman suffering from cardiac ailment, it does not stand to reason that she should be examined after the evidence of all the defendants' witnesses is over. The reasons given for the second defendant not coming forward also does not appear to be sound. If he is a boy unacquainted with the worldly affairs, no convincing reason is forthcoming as to why he would like to figure as witness at the end.
5. The view taken by the learned Principal Munsif Magistrate in I. A.No. 591 of 1991 in O.S.No. 173 of 1988 does not suffer from any legal infirmity. This civil revision petition, therefore, fails and is accordingly dismissed. No costs.