IMPORTANT POINT
Permission to examine a witness can be granted before or after examination, with careful consideration to avoid prejudice, as highlighted in various legal precedents.

JUDGMENT

1. This civil revision petition is filed under Article 227 of the Constitution of India against the order dtd. 12/3/2021 passed in I.A. No.58 of 2021 in O.S. No.58 of 2013 on the file of the Court of Junior Civil Judge, Mummidivaram, filed by the defendant under Order XVIII Rule 3-A of the Code of Civil Procedure, 1908 ('CPC') for granting permission to him to be examined as a witness.

2. Heard Sri T.V.Jaggi Reddy, learned counsel for the revision petitioners and Sri Rambabu Koppineedi, learned counsel for the respondent.

3. The revision petitioner is the plaintiff and the respondent is the defendant in the suit.

4. The plaintiff filed a suit against the defendant for the relief of the declaration of ABCD and EFGH marked portion of the plaint plan, for the relief of a mandatory injunction to remove the unauthorised formation of the red metal gravel on ground, and also for permanent injunction. Pending suit, the defendant filed I.A. No.512 of 2019 under Order XVIII Rule 3-A under Sec. 151 CPC to permit his younger brother by name Sri Guddati Pallamraju to be examined on behalf of the defendant as D.W.1 on the ground that the defendant was suffering from liver infection and was taking treatment for one year by then and so he was unable to give evidence, and further that his brother knows the facts of the case and physical features of the property and is willing to give the evidence on his behalf. The petition was allowed and the brother of the defendant was examined as D.W.1. Thereafter, the defendant filed the present petition in I.A. No.58 of 2021 seeking permission to examine himself as a witness on his behalf as D.W.2 on the ground that recently the evidence of D.W.1 was closed and he recovered his health and is able to give evidence and that he is a fit person to bring real facts before the Court to protect his rights over the property and that unless he is given permission, he would lose his case.

5. The petition was opposed by the plaintiff by filing a counter denying the contents of the affidavit and further stating that the application was filed at a belated stage and that when the matter was posted for adducing evidence on the defendant's side, the defendant did not take steps to reserve his right to give evidence, but straight away examined his brother as D.W.1 and D.W.1 was cross-examined and now this application is filed intending to cover up the lacuna crept during the cross-examination of D.W.1 and therefore, if the petition is allowed, much prejudice will be caused to the plaintiff.

6. After hearing both parties, the trial Court allowed the petition, observing that the medical record placed by the defendant shows that he was discharged from the hospital after liver transplantation on 4/11/2019 and thereafter, D.W.1 was examined on 27/1/2021 and therefore, non-examination of the defendant at the initial stage is for a clear and convincing reason. Having been aggrieved by the order, the plaintiff filed this revision petition.

7. The learned counsel for the revision petitioner/plaintiff submitted that the defendant ought to have sought permission to examine the witness before the party as a witness, however, in the earlier application he sought permission to examine his brother as a witness on his behalf and therefore, the present application is only to fill up the lacuna in the evidence stated in the cross-examination of D.W.1. In this regard, he submitted that D.W.1 stated in his cross-examination that his brother, i.e., defendant had given instructions for preparation of his (D.W.1's) affidavit and that he had put his signature on the affidavit, and further he stated that he had not gone through the documents filed in the suit. As such, he vehemently contended that at this juncture, if permission is granted to the defendant, he would fill up the gaps in the evidence.

8. Order XVIII Rule 3-A CPC is extracted hereunder:

Order XVIII: Hearing of the suit and examination of witnesses

Rule 3-A: Party to appear