The absence of a specific legal provision to strike down the evidence of a witness on certain grounds makes it impossible to grant such a request.

S. R. VENKATESHA MURTHY, J.

( 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 :"the first question for consideration is whether a Court has got power to order unexamined witnesses out of Court until their evidence is taken. Neither the Evidence Act nor the Code of Civil and Criminal Procedure contain any section or rule for ordering witnesses out of Court although it is generally done by the Courts as a matter of practice. In my view, the Court has inherent power to regulate the business of the Court in the way it thinks best or to make any order that may be necessary for the ends of justice". Apparently this decision was rendered at a time when the Order 18 of the Civil Procedure Code had not been amended making a specific provision for examination of a party as his first witness. The Court held that the Court had power to direct that no witness who has to give evidence should be present when the evidence of other witnesses is being recorded and the parties are obliged to comply with the direction given by the Court. The other aspect of the matter that was dealt with by the Court is whether an unexamined witness present in Court could be asked to quit the Court hall during the examination of the other witness and the relevant portion of the observation in Achyutana pitchaiah's case, supra, at para 3 reads as follows:"the authority for this is stated to be Selfe v Issaccson. Again in Halsbury's Laws of England, Vol. 10, at p. 470, it is stated that unexamined witnesses may be ordered out of Court at the request of either party. It is therefore clear that the Court has power to order unexamined witnesses out of Court at any time during the trial on the application of either party".

( 4 ) ON the basis of these observations, it was sought to be contended that the presence of D. W. 2 at the time D. W. 1 was examined, disqualified him from being examined as a witness later on, in the absence of a witness list having been given, and on that ground that evidence of D. W. 2 ought to have

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