A witness can be permitted to state on oath about an error crept in the affidavit already filed and allow him to make his own statement about the said fact, and proceed thereafter for cross-examination instated of eschewing the affidavit already filed and taking a fresh affidavit.

ORDER :

This revision, under Article 227 of the Constitution of India, is filed by the unsuccessful defendant feeling aggrieved by order, dated 16.10.2019, passed in I.A.No.217 of 2019 in O.S.No.214 of 2016 on the file of the Court of the learned Principal Senior Civil Judge, Anakapalle.

2. Heard Sri Mangena Sree Rama Rao, learned counsel appearing for the revision petitioner/defendant and Sri Ghantasala Udaya Bhaskar, learned counsel for the respondent/plaintiff. The parties shall hereinafter be referred to as the plaintiff and defendant for convenience and clarity.

3. The facts that lead to filing of this revision by the revision petitioner/defendant, in brief, are as follows:

The respondent/plaintiff filed a suit in O.S.No.214 of 2016 on the file of the Court of Principal Senior Civil Judge, Anakapalle, for recovery of a sum of Rs.5,15,400/- and subsequent interest thereon basing on a promissory note, dated 30.12.2013. The defendant contested the suit by filing a written statement and specifically pleading that the suit promissory note is fabricated. While so, the plaintiff, after adducing his evidence as PW1, filed the chief affidavit of PW2 who is one of the attestors of exhibit A1, suit promissory note. Thereafter, the plaintiff found that there are certain clerical and typographical mistakes in the evidence of PW2. In view of the ambiguity on account of mistakes occurred in the chief affidavit of PW2, the plaintiff intended to adduce evidence of Paila Sanyasi Rao who is one of the attestors of suit pronote, exhibit A1, for better appreciation of his case after eschewing his earlier evidence filed in the form of affidavit. For that purpose, the plaintiff filed I.A.No.217 of 2019 under Section 151 CPC seeking to permit him to adduce of the evidence of Paila Sanyasi Rao in the correct form, as he is an essential witness.

4. The defendant filed counter opposing the petition and contending that once the witness files an affidavit on oath before the Court and confronted with his chief examination, the same is binding on him and it cannot be eschewed. Even otherwise, once evidence is eschewed on behalf of a witness, he has no opportunity to give evidence in the same case again on his behalf. According to the defendant, once the evidence affidavit in chief examination was filed by a party, the party is bound by the affidavit and to complete the evidence, but cannot change the evidence subsequently. The petition is not maintainable and is liable to be dismissed.

5. The trial Court, upon hearing the contentions of the parties, allowed the petition, taking all the facts and circumstances of the case into consideration, with the observations that the entire evidence affidavit of witness PW2 is not changing and due to clerical and typographical mistakes only it is typed as ‘defendant’ in place of ‘plaintiff’ and ‘plaintiff’ instead of the ‘defendant’.

6. Before this Court, it is vehemently argued by the learned counsel for the revision petitioner that when once evidence of a witness is eschewed, evidence of the same witness cannot be taken and since in the present case, the evidence of PW2 in the form of affidavit has already been taken on file, he cannot again be permitted to file fresh affidavit. In support of his contention, he placed reliance on the decision of High Court in V. Rama Naidu and another v. V. Ramadevi, 2018 (5) ALD 87.

7. On the other hand, learned counsel for the respondent/plaintiff contended that a memo has been filed by the respondent/plaintiff before the trial Court informing the Court about the typographical error crept in the affidavit filed earlier and seeking permission to file a fresh affidavit by eschewing the earlier affidavit taken on file, but no order was passed on the memo, and further the plaintiff filed I.A.No.217 of 2019 to permit him to adduce evidence of the same witness by filing correct form of affidavit.

8. Learned counsel for both the parties admitted that objections were filed by the defendant on t