A Witness Deposing For Himself As Well As Others Having Common Defence, Is No Ground To Reject His Evidence: Andhra Pradesh High Court

The Andhra Pradesh High Court has said that there is no provision controlling the order of examination of same class of parties though the usual practice is to examine those on the same side first.

The court further added that just because a witness gives evidence not only for themselves but also for others, the same cannot be a ground to reject their evidence. 

In doing so the court rejected the petitioner's (plaintiff) contention that defendant no. 1's  affidavit must be dismissed with as he cannot give evidence on his behalf and on behalf of defendant no. 3 (who are respondents before high court).

During the trial the third defendant was examined first and in his examination-in-chief he stated that he is deposing for himself and two other defendants (1 and 2). Later the first defendant proposed to give evidence and in his examination-in-chief stated that he is giving evidence on his behalf and also on behalf of the other defendants 2 & 3. The petitioner claimed that this was not recognised in law. 

Justice BS Bhanumathi in her order referred to Order XVIII, Rules 1, 3, and 3A Code of Civil Procedure (CPC) that collectively govern the serial order of witnesses.

Rule 1 grants the plaintiff the right to begin unless the defendant admits the plaintiff's facts but disputes the relief sought. Rule 3 allows the party beginning to either present all evidence initially or reserve it by way of answer to the evidence produced by the other party. Rule 3A further mandates that a party wishing to appear as a witness must do so before any other witness on his behalf has been examined, unless permitted by the Court to appear later with recorded reasons.

It thereafter said, "...it is a practice to first examine those who sail together and then those oppose. Order XVIII, rule 3A prescribes that without permission of Court, a party cannot be examined after examination of witness for him. The said permission can be accorded even after examination of such witness, but before examination of the party. 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. Just because they give evidence not only for oneself, but also for the others, it cannot be rejected. 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". 

The court was hearing a Civil Revision Petition challenging an order of the Junior Civil Judge, Nandikotkur, dismissing the petitioner's plea moved in a suit for permanent injunction, to reject the chief affidavit of the 1st defendant .

The Trial Court dismissed the plea holding that since all the defendants had a common defence and since merely one defendant mentioned that he deposed on behalf of the other defendants as well, it was not a bar for the other defendants to give evidence and that no injustice would be caused to the plaintiff. Against this the petitioner (plaintiff) moved the high court. 

The High Court meanwhile reiterated the settled law that the proof of a fact depends on the quality and trustworthiness of the evidence, rather than the quantity of the evidence. It further explained that,

“A fact can be proved by examining/filing one or more witness(es)/ document(s). So the number of witness(es) to be examined is nowhere prescribed. 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. Therefore, 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.”

Furthermore, the Court explained the grammar and applicability of Section 3 of the Indian Evidence Act, 1872, which corresponds to Section 2 of the Bharatiya Sakshya Adhiniyam, 2023, which governs the manner of proving a fact. It clarified that a fact can be proved either by examining any witness or by filing a document. It further stated that:

“A fact is said to be proved when, after considering the matter before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.”

Finding no irregularity with the trial court's order the high court dismissed the plea.

Case title: Kote Krishnudu v. Mandleam Subba Reddy and Others

CIVIL REVISION PETITION NO: 1478/2024

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