BARNALA LAKSHMANA RAO Vs. SARNALA CHINA JAMALAYYA

JUDGEMENT

(1.) The orders passed by the Junior Civil Judge, Nuzvid, on the Memo, filed by the respondent herein with regard to eschewing the evidence relating to PW2, has led to the filing of the present revision under Section 115 of CPC.

(2.) According to the learned Counsel for the revision petitioner, the respondent filed a suit in OS No.99/92 before the learned Junior Civil Judge, Nuzvid, for a permanent injunction. Written statements were filed and issues were also framed by the Court. On behalf of the respondent-plaintiff PW1 was examined in chief and he was also cross-examined on behalf of the defendant-petitioner herein. The second witness on behalf of the plaintiff was examined in Chief as PW2 on 26-2-1998. However, despite several adjournments, the plaintiff was unable to procure the presence of PW2 for cross-examination on behalf of the petitioner-defendant herein. According to the learned Counsel for the petitioner, the respondent presented a Memo, before the Court below on 2-7-1998 stating - "In the above said matter the second witness did not turn up to give and complete his evidence as he was win over by the defendant. As such his evidence may be eschewed and the plaintiff may be permitted to adduce further evidence." The lower Court reacting on the Memo filed by the respondent, accepted the said Memo and passed an order on 2-7-1998 indicating that the evidence of PW2 shall stand eschewed and further directed the matter to be listed on 16-7-1998 for further evidence on behalf of the plaintiff.

(3.) Learned Counsel for the petitioner submits that when a witness has been examined-in-Chief on behalf of a party, if the said witness fails to subject himself for further cross-examination on behalf of the opposite party, the procedure required to be followed is under Order XVI Rule 10 CPC that is, to issue necessary summons to such witness. In this case, according to the learned Counsel for the petitioner, the Court instead of following this procedure, has only eschewed the evidence of PW2 who is the witness on behalf of the plaintiff, with the result, the advantage the petitioner-defendant would get from the evidence of PW2 in-Chief is lost. According to the learned Counsel, the procedure followed by the trial Court is not permissible and therefore contends that the order impugned in this revision has to be set aside.