SRINTVAS Vs. VIJAYA S NAYAK

JUDGEMENT

(1.) HEARD on merits by consent.

(2.) THE petitioner who is the plaintiff in O. S. No. 5523 of 1994 on the file of the City Civil Judge, Bangalore, filed an application for striking down the evidence of D. W. 2-Shanthappa R. Nayak, husband of Vijaya s. Nayak-D. W. 1 who is plaintiff in O. S. No. 2666 of 1995, on the ground that when D. W. 1-Vijaya S. Nayak was examined as a witness in the case D. W. 2 her husband was present in Court and subsequently D. W. 2 was also examined. The proposed examination of D. W. 2 was not communicated to the petitioner herein at the time D. W. 1 was examined and it is stated that at the time D. W. 1 was examined D. W. 2 was present and his presence was objected to and the Trial Court did not uphold the objection and directed the plaintiff to go on with the case and that is how d. W. 1's evidence was affected by the presence of D. W. 2 in the Court hall. Thereafter, D. W. 2 was examined as witness in the case. At the stage, when D. W. 2 was to be cross-examined, the petitioner filed the application for striking out the evidence of D. W. 2 on the ground that d. W. 2 was present during the examination of D. W. 1. The learned Trial judge by the order dated 6-7-1999 held that when the examination of d. W. 1 proceeded, D. W. 2 was present in Court and his presence was not objected to by or on behalf of the petitioner. The Court further observed that even when D. W. 2 was examined no objection was raised for the examination; while a statement is stated to have been made by the petitioner's Counsel that he had no objection for further evidence being recorded of D. W. 2. Consequently, the learned Trial Judge dismissed the application. Hence, this revision.

(3.) THE learned Counsel for the petitioner has sought to rely upon the two decisions in support of his contention which he states supports his contention. Achyutana Pitchaiah Sarma v Gorantla Chinna Veerayya, is a decision rendered under Section 135 of the Evidence Act. The relevant portion of the judgment reads as follows :