IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE FIRST DAY OF DECEMBER TWO THOUSAND AND NINE HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.1395 of 2009 Between: K. Vidyasagar Rao and 2 others .. Petitioners AND P.V. Sahith and another .. Respondents ORDER: Heard Sri N. Vasudeva Reddy, learned counsel for the revision petitioners and Sri A. Sudershan Reddy, learned senior counsel for the first respondent. None appeared for the second respondent in spite of repeated issuance of notices by this Court. The revision petitioners, who are defendants 1 to 3, approached the trial Court with a request to examine the second respondent/fourth defendant in the suit as court witness, which request was negatived by the trial Court, while leaving the liberty to the petitioners to examine the said Ch. Rajabhoomaiah, Director of the second respondent company, as a witness on behalf of any of the defendants. The trial Court also expressed its readiness to consider any application filed to examine the said person on behalf of the defendants and issue summons to him. The grievance of the petitioners is that it was the proposed witness, who allegedly executed four registered sale deeds in favour of respective plaintiffs in the four suits being jointly tried by the trial Court and who again cancelled the same and executed registered sale deeds in favour of the third petitioner. The suits involved a decision on the request by the respective plaintiffs for declaring the cancellation of the sale deeds in their respective favour as illegal and void and for consequential recovery of possession of their respective agricultural lands (Mango gardens). The plaintiffs did not examine the fourth defendant/second respondent herein as a witness and the petitioners herein contend that he is the crucial witness, who can throw convincing light on the probabilities of the truth and acceptability of the contentions of either party. The jurisdictional error said to have been committed in not considering the request of the petitioners/defendants 1 to 3 made under Order XVI Rule 14 of the Code of Civil Procedure is the subject matter of the consideration in this revision. In the impugned order, the trial Court referred to the precedents relied on by either party and the principles laid down therein and felt that the application filed in the middle of the proceedings without closing the evidence on behalf of defendants 1 to 3 cannot be considered, as it was the specific case of the plaintiffs that the proposed witness Ch. Rajabhoomaiah colluded with the third defendant in executing the sale deeds in his favour and the specific case of defendants 1 to 3 is that the third defendant is a bonafide purchaser for valuable consideration. The trial Court felt that the witness cannot be said to be in the hands of the plaintiffs or any person related to them and the first defendant and the proposed witness resides in the same village. In the absence of any reason to believe the witness to be acting against the interests of defendants 1 to 3 and in the light of fourth defendant represented by the proposed witness avoiding service of summons in spite of being a party to the suits, the trial Court was not persuaded and convinced to summon the witness as a Court witness. The trial Court at the same time made it clear that he can be examined as witness for the defendants for which appropriate application can be filed and considered. As held in Lingamdinne Rama Reddy v. Vongole Venkatarami Reddy[1], a party cannot compel the Court to examine any individual as Court witness and a court witness is only one whom the Court intends to examine on its own accord. In C.R.P.Nos.3175 of 2009 and 3207 of 2009, Hon’ble Sri Justice P.S. Narayana by the common order dated 30-07-2009 (unreported), with reference to the precedential law, had concluded that the exercise of judicial discretion by the trial Court, if it were judicious and after recording convincing reasons, is not to be interfered with normally under Article 227 of the Constitution of India. Bearing this caveat in mind, it is to be noted that the trial Court gave its reasons for declining to summon the witness as a court witness and without any deeper probe into the justification or otherwise for its prima facie conclusions, it has to be observed that the reasons assigned cannot be considered irrelevant or illegal. At the same time, the trial Court made it clear that if an application is filed to examine the proposed witness on behalf of defendants 1 to 3, the court can consider and issue summons to the said witness obviously indicating its mind to extend all permissible legal assistance to defendants 1 to 3 in summoning the proposed witness as their witness. Sri N. Vasudeva Reddy, learned counsel for the revision petitioners was apprehensive on two counts, firstly, about the possibility of the proposed witness still avoiding to come to the witness box notwithstanding being summoned and the possibility of the petitioners being unable to secure his presence without the assistance of the Court. The learned counsel was also apprehensive about the possible necessity to cross-examine the proposed witness, if he were to resile from his earlier statements or documents, which the trial Court may or may not permit. Insofar as the first apprehension is concerned, there need not have been any apprehension in view of the positive expression of its opinion by the trial Court that if such an application is filed, the Court can consider and issue summons to the witness. In fact, it is the duty of the Court to assist the parties to secure the presence of the persons proposed to be examined by them before the Court, as the various provisions of Order XVI of the Code of Civil Procedure would, ex facie, indicate. Therefore, if defendants 1 to 3 so desire, they can definitely apply to the trial Court to summon the proposed witness and if the summons do not achieve the intended result, they have to apply to the Court to secure the presence of the witness with reference to the compulsive processes provided under Order XVI of the Code of Civil Procedure. Insofar as the apprehensions about the hostility of the witness are concerned, the learned senior counsel for the first respondent brought to notice that it is also the very claim of the plaintiffs in all the four suits that initially, documents of sale were executed in their favour and that on cancellation of the same, documents of sale were executed in favour of the third defendant. If the proposed witness resiles from any statement previously made by him or any document previously executed by him during his examination in chief at the instance of defendants 1 to 3, the defendants 1 to 3 can always make a request to the trial Court under Section 154 of the Evidence Act to declare the witness as hostile and to permit him to be cross-examined. In fact, such a course of action would give more liberty to both parties to cross- examine the proposed witness in depth about the transactions in question than when he were summoned to be a court witness. Therefore, while not interfering with the impugned order, it is suffice to make it clear that the request of defendants 1 to 3 for summoning the witness shall be considered by the trial Court, if such a request were to be made and that the Court shall extend all permissible legal assistance for securing the presence of the proposed witness under Order XVI of the Code of Civil Procedure, if such a request is necessitated and is made. Similarly, any request from defendants 1 to 3 for any permission to put questions to the proposed witness, which might be put to the witness by the adverse party, the Court shall exercise its jurisdiction in accordance with the well settled principles under Section 154 of the Evidence Act. Subject to the above observation, the Civil Revision Petition is disposed of. No costs. _____________________ G. BHAVANI PRASAD, J Date: 01-12-2009 Ksn [1] 2009 (4) ALD 560