Andhra Pradesh High Court - Amravati
Karri Vijaya Bhaskar Reddy vs Karre Sree Lakshmi on 26 February, 2024
APHC010012372024
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
(Special Original Jurisdiction)
[ 3299 ]
MONDAY ,THE TWENTY SIXTH DAY OF FEBRUARY
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
CIVIL REVISION PETITION NO: 76 OF 2024
Between:
KARRI VIJAYA BHASKAR REDDY ...PETITIONER(S)
AND
KARRE SREE LAKSHMI AND OTHERS ...RESPONDENT(S)
Counsel for the Petitioner(s):SRI. P RAJASEKHAR Counsel for the Respondents:
The Court made the following:
Heard Sri P. Rajasekhar, learned counsel for the petitioner.
2. The petitioner is the plaintiff in O.S.No.6 of 2015 pending in the Court of IV Additional District Judge, Kakinada. The suit is for declaration that the cancellation deed dated 08.01.2015 is not valid as unilateral cancellation and settlement deed is not permissible under law. At the stage of evidence, defendant No.1 was examined as DW.1. Defendants also examined the Sub-Registrar, Samalkota as DW.2.
3. I.A.No.929 of 2023, dated 26.09.2023 was filed by the defendant Nos.1 to 4 to examine defendant No.3 as DW.3, under Order 18 Rule 3-A C.P.C.
4. The plaintiff/petitioner filed objection/counter submitting inter alia that before the examination of DW.2, the defendants did not reserve the right for examination of the party defendant afterwards. Objection was also raised that the reasons assigned seeking permission for examination of the defendant No.3 as DW.3 after examining their witness DW.2, was not sufficient and the permission could not be granted.
5. I.A.No.929 of 2023 has been allowed by the learned trial Court by the impugned order dated 08.11.2023.
6. Sri P. Rajasekhar, learned counsel for the petitioner submits that in view of Order 18 Rule 3-A, 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. Before the examination of DW.2, any such application had not been filed by the defendants. The Court had also not permitted the defendant No.3 as DW.3, at a later stage.
7. Sri P. Rajasekhar further submits that the Court has simply by saying that "the reasons mentioned in the affidavit are convincing and bona fide in nature"
allowed I.A.No.929 of 2023. He submits that those reasons were neither bona fide nor convincing. Further the objection of the petitioner with respect to the reasons assigned by the defendants in the affidavit in support of the application have not been considered by the learned Court, which objection should have been dealt with and then the Court could have for the recorded reasons, either allowed the application or rejected the same.
8. So far as the first submission of the learned counsel for the petitioner is concerned, in the case of John Susheel Kale & Another vs. S. Devarajulu & Another1, this Court placing reliance on the Division Bench judgment in Devarapalli Pattabhi Ramaiah v. D. Lakshmi Prasanna and others2, held that the application under Order 18 Rule 3-A need not be filed prior to the examination of the third party as witness. The party to the suit can examine himself as a witness even if he makes an application after examination of some witnesses on his behalf and even if he has not sought such permission before commencement of examination of his witnesses. Consequently, I am of the view that subsequent to the examination of witness, the application can be filed at a later stage. On that aspect, the view taken by the trial Court is as per the law laid down by the Division Bench of this Court, binding on this Court. In the first submission, this Court do not find force that before the examination of DW.2 the right of the party defendant No.3, should have been reserved for his examination as DW.3.
1 2(1997) 6 ALT 475 (DB)
9. So far as the second submission is concerned, prima facie the Court find force. The learned trial Court in Para 11 of the judgment held that the reasons mentioned in the affidavit are convincing and bona fide in nature. In John Susheel Kale (supra), this Court after placing reliance in the Division Bench judgment of this Court further held that the Court while according permission to depart from the general rule enshrined under Rule 3-A of C.P.C is required to record reasons and such reasons must be cogent and germane to the issue. Once the reasons are recorded, they are open to scrutiny by the appellate Courts. This Court is of the view prima facie that the learned trial Court ought to have considered the reasons assigned by the defendants in their application as also the objections raised by the plaintiffs which objections were raised in detail and on consideration of those objections ought to have arrived at the conclusion, if the permission was to be granted or not. The said exercise is lacking in the impugned order.
10. The matter requires consideration in this aspect after the appearance of the respondents.
11. Issue notice to the respondents.
12. In addition to the normal mode of service the petitioner is permitted to take out personal notice by Registered Post with Acknowledgment Due and file proof of service by the next date.
13. List on 25.03.2024.
14. As an interim measure, the petitioner is granted liberty to file application for adjournment before the learned trial Court and on such application being filed, the trail Court shall post the suit after the date fixed in the present case.
________ RNT,J Scs