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Saturday, June 25, 2016

eschewed the evidence in chief of D.W.3 and held that he shall not be entitled to depose as a witness in that suit as he was present through out the cross examination of DW2 =If a party to a suit intends to examine more witnesses than one, the basic requirement is that when one of the witnesses is being examined, others who are proposed to be examined as witnesses, are not present in the Court. If they are present, they would naturally become alert and fill the lacunae, that may be left in the evidence of the person, who is already examined as a witness. The Law does not permit this. However, exactly the same thing has happened in the instant case. When the cross-examination of D.W.2 was in progress, a person who is proposed to be examined as D.W.3, was present in the Court through out. The trial Court has taken correct view of the matter, when it held that the evidence of D.W.3 cannot be recorded at all and that the affidavit filed by him in lieu of chief-examination is liable to be eschewed from consideration. If at all anything, the trial Court has only enforced a fundamental principle and basic tenet of law of evidence. The petitioner has to blame himself for not ensuring that a witness, who is proposed to be examined by him, is not in the Court, when the other witness is being cross-examined.

THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY        

Civil Revision Petition No.253 of 2013

08.02.2013
       
M.Venkataratnam Reddy.  

P.L.Manogaran and others.

Counsel for the petitioner    : Sri Suresh Kumar Reddy Kalava

Counsel for respondent : ---

<GIST:

>HEAD NOTE:  

?Cases referred:

ORDER:
        The 1st respondent filed O.S.No.104 of 2007 in the Court of Senior Civil
Judge, Puttur against the petitioner and respondents 2 to 7 herein, for the
relief of perpetual injunction in respect of the suit schedule property. The
trial of the suit commenced.  The evidence on behalf of the 1st respondent was
concluded. The evidence on behalf of the defendants is in progress.  The cross-
examination of D.W.1 was also completed.      
        When D.W.2 was being cross-examined, a person who was sought to be  
examined as D.W.3 and filed affidavit in lieu of Chief-examination, remained in
the Court.  Taking that into account, the trial Court, through docket order,
dated 14.12.2012, eschewed the evidence in chief of D.W.3 and held that he shall
not be entitled to depose as a witness in that suit.  The same is challenged in
this revision.
        Heard Sri Suresh Kumar Reddy Kalava, leaned Counsel for the petitioner.
        The cross-examination of a witness has its own significance. Several
important aspects will be elicited from the witnesses and the strength or
weakness of the suit would depend upon the extent, to which the information is
elicited in the cross-examination. For all practical purposes, the chief-
examination has been reduced to an empty formality with the creation of facility
of filing of affidavits in lieu of chief examination.
        If a party to a suit intends to examine more witnesses than one, the basic
requirement is that when one of the witnesses is being examined, others who are
proposed to be examined as witnesses, are not present in the Court. If they are
present, they would naturally become alert and fill the lacunae, that may be
left in the evidence of the person, who is already examined as a witness.  The
Law does not permit this. However, exactly the same thing has happened in the
instant case. When the cross-examination of D.W.2 was in progress, a person who 
is proposed to be examined as D.W.3, was present in the Court through out.  The
trial Court has taken correct view of the matter, when it held that the evidence
of D.W.3 cannot be recorded at all and that the affidavit filed by him in lieu
of chief-examination is liable to be eschewed from consideration.    If at all
anything, the trial Court has only enforced a fundamental principle and basic
tenet of law of evidence.  The petitioner has to blame himself for not ensuring
that a witness, who is proposed to be examined by him, is not in the Court, when
the other witness is being cross-examined.
Hence, the Civil Revision Petition is dismissed. There shall be no order as to
costs.
        The Civil Miscellaneous Petitions filed in this civil revision petition
shall also stand disposed of.

        _____________________  
L. NARASIMHA REDDY, J    
February 8, 2013.

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