Order:

This Civil Revision Petition has been filed against the docket order, dated 24.01.2023, passed in IA No.19 of 2023 in OS No.28 of

2016 by the learned Additional Junior Civil Judge, Puttur.

2. Respondent herein filed the aforesaid suit seeking permanent injunction restraining the defendant, his men, agents, assignees, servants or anybody claiming under them from in any way interfering with the peaceful possession and enjoyment of the plaintiff in respect of the plaint schedule mentioned property. After filing of written statement by petitioner/defendant, trial began in the suit. P.W.1 was examined. When affidavit in lieu of examination-in-chief of P.W.2 is filed, counsel for petitioner/defendant endorsed on the same that the said witness, who is son of P.W.1, was sitting in the Court hall during the cross-examination of P.W.1 and observed all material cross-examination done by the counsel for the defendant, and hence, his chief affidavit is to fill up lacunae and requested to reject the chief affidavit of P.W.2. Thereupon, the petitioner/defendant filed IA No.19 of 2023 has praying to reject the chief affidavit of PW2, by stating the aforesaid facts. It is stated by the learned counsel for the petitioner/defendant that instead of addressing the grievances of the petitioner herein, the learned Judge appointed an Advocate Commissioner to record the evidence of plaintiff and defendant and to mark documents. By the impugned docket order dated 24.01.2023, the learned Judge directed to lodge the said petition in the records holding that the above objections, if any, shall be decided at the stage of arguments in main suit, as the aforesaid suit is a pre-2018 suit which shall be disposed of by 30.04.2023 in view of the Circular of the High Court dated 23.11.2022.

3. Heard both the counsel. Perused the record.

4. Learned counsel appearing on behalf of the petitioner relied upon a decision of this Court in M.Venkataratnam Reddy Vs.

P.L.Manogaran & Ors1, Wherein it was held that:

“The cross-examination of a witness has its own significance. Several important aspects will be elicited from the witnesses and the strength or weakness of the suit would depend upon the extent, to which the information is elicited in the cross-examination. For all practical purposes, the chief-examination has been reduced to an empty formality with the creation of facility of filing of affidavits in lieu of chief examination. If a party to a suit intends to examine more witnesses than one, the basic requirement is that when one of the witnesses is being examined. Others who are proposed to be examined as witnesses, are not present in the Court. If they are present, they would naturally become alert and fill the lacunae, that may be left in the evidence of the person, who is already examined as a witness. The Law does not permit this. However, exactly the same thing has happened in the instant case. When the cross-

1 Order dated 08.02.2013 in CRP No.253 of 2013

examination of DW2 was in progress, a person who is proposed to be examined as DW3, was present in the Court through out. The trial Court has taken correct view of the matter, when it held that the evidence of DW3 cannot be recorded at all and that the affidavit filed by him in lieu of chief-examination is liable to be eschewed from consideration. If at all anything, the trial Court has only enforced a fundamental principle and basic tenet of law of evidence. The petitioner has to blame himself for not ensuring that a witness, who is proposed to be examined by him, is not in the Court, when the other witness is being cross-examined.”

5. It is a basic and fundamental principle of law of evidence that when one of the witnesses is being examined, the other person, who is proposed to be examined as a witness on behalf of the said party, is not expected to be present in the Court. If such witness is present, it is natural that he would become alert and fill up lacunae, if any, that may be left in the evidence of