Deposing for Self and Others in Common Defence No Ground to Reject Evidence of the other defendants; No Bar Under CPC: Andhra Pradesh High Court”
Kiran Raj
The Andhra Pradesh High Court has dismissed a civil revision petition filed under Article 227 of the Constitution of India challenging the trial court’s dismissal of an interlocutory application seeking to reject the affidavit of a defendant. The Single Bench, of Justice B S Bhanumathi, observed that “this Court does not see any illegality or irregularity in the order impugned.” The Court recorded that there is no prohibition under the Code of Civil Procedure, 1908 preventing a defendant from giving evidence even if another defendant has already deposed on behalf of all.
The trial court had earlier refused to reject the affidavit of the 1st defendant, who sought to testify after the 3rd defendant had already been examined as DW1 and had deposed on behalf of all the defendants in the case.
The order in question was challenged in the revision petition, where the petitioner contested the permissibility of the 1st defendant’s affidavit.
The dispute originated from a suit filed for permanent injunction. The plaintiff sought to restrain the defendants through this suit, which was opposed by the defendants through a written statement. During the course of the trial before the Junior Civil Judge, Nandikotkur, the 3rd defendant was examined as DW1. In his chief examination, DW1 stated that he was giving evidence for himself and also for the other two defendants.
Subsequently, the 1st defendant submitted an affidavit in evidence as DW2, stating that he intended to give evidence on his behalf and also on behalf of the other defendants 2 and 3. The plaintiff, in response, filed I.A. No.800 of 2023 under Section 151 of the Code of Civil Procedure, 1908, requesting the court to reject the affidavit of the 1st defendant. The petitioner’s argument was that the 1st defendant could not give evidence again on his own behalf and on behalf of DW1/defendant No.3. The plaintiff submitted that such a course of action was unknown to law.
The petition was opposed by the defendants, who filed a counter stating that all the defendants had a common defence. It was stated that initially, defendant No.3 was examined as DW1 and exhibits B1 to B8 were marked during his examination, and that DW1 deposed on behalf of all the defendants. It was also submitted that the 1st defendant’s proposed evidence as DW2 was intended to corroborate the evidence given by DW1. The defendants stated that there was no merit in the petition, which was filed with an intention to delay the proceedings.
After hearing both parties, the trial court dismissed the plaintiff’s application. The trial court recorded that all the defendants shared a common defence and that merely because one defendant deposed on behalf of the others, this did not prevent other defendants from giving evidence as well. The trial court also noted that no injustice would be caused to the plaintiff by allowing the 1st defendant to submit evidence.
The petitioner then approached the High Court, filing the revision petition under Article 227 of the Constitution of India.
Before the High Court, the petitioner advanced arguments similar to those made before the trial court, while the respondents defended the trial court’s order on similar lines.
Justice B S Bhanumathi observed that “a fact can be proved by examining any witness or filing a document. The manner of proving a fact is governed by the Evidence Act, 1872 or the Bharatiya Sakshya Adhiniyam, 2023, as the case may be.” The Court referred to Section 3 of the Evidence Act, 1872, and Section 2 of the Bharatiya Sakshya Adhiniyam, 2023, noting that “a fact is said to be proved when, after considering the matter before it, the Court, either believes it to exist, or consider its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.”
The Court further stated that “whether a fact is proved or not depends on the quality but not quantity of evidence. It depends on the trustworthiness of evidence.” Justice B S Bhanumathi also recorded that “evidence of even a single witness is sufficient, provided trustworthy, to prove a fact. But evidence of a witness, on corroboration by evidence of other witness(es), renders more believable.”
The judgment additionally noted that “though corroboration is not required as a matter of law, more than one witness are usually examined as a matter of practice to ensure quality of evidence by eliminating doubt to meet the standard of a prudent man.” On this basis, the Court observed that “it cannot be said, therefore, that since the 3rd defendant gave evidence on behalf of the other defendants also, other defendant(s) cannot give evidence.”
In examining procedural rules, the Court referred to the Code of Civil Procedure, 1908, specifically Order XVIII, rules 1, 3, and 3A. Justice Bhanumathi excerpted the provisions, noting that “Order XVIII, rule 3A prescribes that without permission of Court, a party cannot be examined after examination of witness for him.” The Court stated, “the said permission can be accorded even after examination of such witness, but before examination of the party.”
On the specific facts before the Court, Justice Bhanumathi observed that “so, even if the 3rd defendant is first examined before the 1st defendant in the present case, there is no legal impediment to examine the 1st defendant thereafter as they have a common defence and all of them have right to give evidence.” The Court further recorded that “just because they give evidence not only for oneself, but also for the others, it cannot be rejected.”
The Court concluded that “except the above limited bar under rule 3-A, there is no other bar in the Code of Civil Procedure to prevent a party from giving evidence.”
Based on these findings, the High Court found no procedural irregularity in the trial court’s dismissal of the plaintiff’s application.
Justice Bhanumathi stated, “therefore, this Court does not see any illegality or irregularity in the order impugned. As such, the revision petition is liable to be dismissed.”
The civil revision petition was accordingly dismissed without an order as to costs.
Advocates Representing the Parties
For the Petition: Budige Bhoja Raam
For the Respondent: V Farook
Case Title: Kote Krishnudu v. Mandleam Subba Reddy and Others
Neutral Citation No.: APHC010289562024
Case No.: Civil Revision Petition No. 1478/2024
Bench: Justice B S Bhanumathi
[Read/Download order]
