NAMALA GOVINDU Vs. B LAKSHMANNA

JUDGEMENT

(1.) REVISION petitioner filed a suit for redemption of a mortgage initially against the first respondent and later impleaded the second respondent as a party to the suit on the ground that the second respondent purchased the mortgaged property from the first respondent. After the revision petitioner closed his evidence, the suit is posted for evidence on behalf of the respondents. Second respondent (second defendant) filed her affidavit in lieu of chief-examination. Revision petitioner took an objection that the second respondent cannot be examined without the first respondent examining himself as a witness in the first instance. Initially, the revision petitioner filed a memo taking such objection and the respondents filed a counter memo. After considering the objections, the learned trial judge gave a finding that the revision petitioner cannot compel the defendants as to which defendant has to be examined in the first instance. Subsequently, the revision petitioner filed a petition under Section 151 cpc requesting the Court to pass appropriate orders as per law on the contention raised by him. The trial Court by the order under revision dismissed the said petition. Hence, the revision petition.

(2.) THE contention of Sri A. V. Sivaiah, learned Counsel for the revision petitioner, is that as the idea behind examining the second respondent in the first instance is to fill up the lacunae, if any brought out in her evidence by examining the first defendant later, the trial Court was erred in not upholding the objection of the revision petitioner and should have directed the first respondent/ first defendant to adduce evidence first and that the second respondent can adduce evidence only after closure of the evidence on behalf of the first respondent.

(3.) I am unable to agree with the contention of the learned Counsel for the revision petitioner. Both the respondents admittedly are appearing through the same counsel and their defence is the same. As per Rule 3 (A) of Order 18 CPC, if a party wishes to appear as a witness, he has to examine himself before any other witness on his behalf is examined, unless the Court permits him to appear as his own witness at a later stage. Which of the several defendants in a suit has to lead evidence in the first instance is not laid down by CPC or the Civil Rules of Practice, but where some of the defendants support the case of the plaintiff and where some of the defendants oppose the case of the plaintiff, defendants who support the case of the plaintiff should lead evidence in the first instance before the defendants, who are opposing the case of the plaintiff lead their evidence. As among the defendants who are opposing the claim of the plaintiff, they can lead evidence as per their choice. Neither the Court nor the plaintiff can compel any such defendant to lead evidence in the manner stated by him. In this case, both the defendants are opposing the case of the revision petitioner/plaintiff, and are appearing through the same advocate. So, it is for them to choose who should lead the evidence in the first instance. Question of first defendant filling the lacunae, if any, brought out in the cross-examination of the second defendant does not arise, because second defendant purchased the property from the first defendant.