Judgment:
ORDER
C.V. Ramulu, J.
1. This civil revision petition is filed under Article 227 of the Constitution of India being aggrieved by an order dated 1-11-2004 made in O.S. No. 641 of 1990 on the file of the learned I Additional Senior Civil Judge at Vijayawada.
2. Defendants 4 and 5 in the suit filed by the 1st respondent are the petitioners in this revision. Respondent No. 1 laid a suit for specific performance of an agreement of sale. Defendants 4 and 6 filed written statement supporting the claim of the plaintiff. After the plaintiff's evidence was closed, defendants 2, 4 and 5 adduced their evidence and it was also closed. Though defendants 4 and 6 supported the case of the plaintiff, after the evidence of the contesting defendants was closed, they wanted to lead their evidence. At that stage, defendant No. 1 filed a memo praying the Court to pass necessary orders for disentitling defendants 4 and 6 to adduce evidence. It is stated by the 1st defendant that if the petitioner-defendants 4 and 6 wanted to adduce evidence, they could have adduced evidence even prior to adducing of evidence by contesting defendants. Since petitioner-defendants 4 and 6 are supporting the case of the plaintiff, they have no right to adduce evidence after the closure of the evidence of the contesting defendants. Petitioners filed objections saying that the Memo is misconceived. The law provides a right to the parties to lead evidence at any stage and as such, the memo is liable to be rejected. After hearing both parties, the Court below upheld the objection raised by the contesting defendants and recorded a finding that petitioner-defendants 4 and 6 have no right to adduce evidence at that stage. Aggrieved by the said order, the present civil revision petition is filed.
3. Sri C. Ramachandra Raju, learned Counsel for the petitioners, strenuously contended that the Court below has grossly erred in not exercising jurisdiction vested in it on proper lines. It also failed to see that the 1st defendant ought to have raised an objection when the matter was posted for his evidence that the evidence of the petitioner-defendants 4 and 6 has to be adduced first and thereafter, his evidence has to be recorded. When no objection was taken at the time of leading their evidence by the contesting defendants, they cannot have any objection when defendants 4 and 6 were sought to be examined in their due turn. He also submitted that the procedure also can be made applicable with retrospective effect.
4. Learned Counsel for the respondents reiterated the same stand as was taken in the Court below and supported the impugned order.
5. The question whether the provisions of the amended Civil Procedure Code or the provisions, which stood prior to amendment on 1-7-2002, are applicable to the present case has no relevance, since Sub-rule (4) of Rule 2 of Order XVIII, which has been omitted by the Amendment Act, vis-a-vis the same as that of the Explanation appended to Rule 2 of Order XVIII has been added by Madras Amendment, which is adopted by A.P. High Court, which reads as under:
Explanation : Nothing in this rule shall affect the jurisdiction of the Court for reasons to be recorded in writing to direct any party to examine any witnesses at any stage.
Thus, the only amendment made is adding of Sub-rule (3A), (3B), (3C) and (3D) in Order XVIII, which has no relevance for our purpose.
6. Rule 2 of Order XVIII of the Civil Procedure Code would make it clear that the party having the right to begin shall state his case and produce his evidence in support of the issues, which he is bound to prove. Generally speaking, the rule is that the plaintiff has to prove his claim by positive proof, because the Court has to see whether there is proof of claim or not before enquiring into the truth or otherwise of the defence. Further, as seen from Explanation added to Rule 2, which is made applicable to Andhra Pradesh also, the Court for reasons to be recorded in writing, direct any party to examine any witness at any stage. This, in my opinion, also includes that the Court has power to consider for rejection or grant of relief on an application being filed by the parties, for examining a particular witness or for objecting to examine a particular witness. Though the Court has power to examine any witness at any stage, it can also reject examining of a particular witness at a particular stage, either on an application filed by a party or otherwise, in the interests of justice.
7. Learned Counsel for the respondents in support of his arguments relied upon a reported judgment of this Court in G. Venkatakrishnam Raju v. B. Jayalakshmi 1988 (1) APLJ 6 (SN), wherein it was held as under:
Sub-rule (4) of Rule 2 of Order 18 C.P.C. merely enacts an exception to Order 18. As Order 18 does not deal with this question at all, its exception cannot apply to this situation. Sub-rule (4) of Order 18 does not in express terms authorize the supporting defendants to lead evidence after the closure of the evidence of the contesting defendants. But, this is not to deny the Court's inherent powers to permit a party or any other person to lead evidence in the interest of justice at any stage of the trial. That is an inalienable right of the Courts which should always be upheld and should be jealously guarded Such inherent power cannot be allowed to be used by a scheming party to fill up the blanks and close the gaps created by them willingly or unwillingly but certainly knowingly.
In the said case, it was observed as under:
The question as to who should be permitted to lead evidence and at what stage is not exhaustively dealt with by the provisions of the Civil Procedure Code, the writ of which does not lie in its brevity. This statute which is the great source of all our major legal disputations over the questions of proper procedure to be applied by the Court in trying the civil suits, has only one provision dealing with this question. Order 18 Rule 1 CPC recognizes generally the plaintiffs right to begin the case, because it is on him the law places burden of proving his case. Rule 2 of Order 18 succumbing to the pressure of request for adjournment says that either on the day fixed for the trial of the suit or any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence and thereafter the rival party should state its case and lead evidence. The party beginning will have a right to reply generally. The evidence is then closed. These provisions work well enough when all the parties are nearly arraigned either on the side of the plaintiffs or defendants. But when there are non-co-operating defendants having common interests with the plaintiffs, the situation gets complicated. Order 18 provides no express guidance in dealing with that situation. Nor does it tell us when a Court witness should be examined. One cannot find anything in support of or in opposition to the claims of a supporting defendant to lead evidence after the evidence of the contesting defendants is over. These questions have therefore to be decided upon by the Courts on the basis of general principles of fair procedure and sense of justice.....
He further relied upon another reported judgment in Hiralal v. M.G. Pathak : AIR1964Guj26 , wherein it was held as under:
So far as the defendants go, the question which of the defendants should begin has not been dealt within Order 18. But, on general principle, if any of the defendants supports the plaintiff in whole or in part, then he should address the Court and lead his evidence first before the other defendants who do not support wholly or in part of the plaintiffs case. If all the defendants completely oppose the plaintiff's case, then the question of Order of leading evidence amongst the defendants is immaterial. It is only when the defendants are divided into two groups, one group consisting of the defendants supporting the plaintiff's case in part and the other group consisting of defendants, who do not support the plaintiff's case in any part that the question of order of leading evidence becomes imparted. In such cases, among defendants the order of leading evidence as follows : (1) Those defendants who fully support the case of the plaintiff; (2) Those defendants who partly support the case of the plaintiff; (3) Those defendants who do not support the case of the plaintiff in any part.
and submitted that since petitioner-defendants 4 and 6 are fully supporting the case of the plaintiff, they cannot be permitted to lead evidence after the evidence of the contesting defendants. Either they could have been examined immediately after the evidence of the plaintiff or otherwise they cannot be permitted to examine after the contesting defendant's evidence is recorded, as it amounts to allowing defendants 4 and 6 to fill up the blanks created by the plaintiff willingly or unwillingly, but certainly knowingly.
8. Learned Counsel for the petitioners raised yet another argument stating that the procedural law also has retrospective operation and in this regard, he relied upon a judgment of a Larger Bench of this Court in Vallabhaneni Lakshmana Swamy and Anr. v. Valluru Basavaiah 2004 (5) ALD 807 (LB). Strictly speaking, that question does not arise for consideration in this case, since unamended Civil Procedure Code and amended Code take care of the situation of this nature. In the unamended Code, Sub-rule (4) of Rule 2 of Order XVIII was available, but in the CPC (Amendment) Act, 1999, the said sub-rule was omitted and to the same effect Explanation was added after Rule 2 (for Andhra Pradesh and Madras). Therefore, there is no necessity of going into this aspect.
9. What is to be seen in a contingency like this, is whether the contesting defendants, who are fully supporting the case of the plaintiff could be permitted to lead evidence after the evidence being let in by the contesting defendants. In this case, admittedly, defendant No. 1-contesting defendant has filed the present Memo when defendants 4 and 6 came forward to adduce evidence on their behalf after the evidence of the contesting defendants was closed. When defendants 4 and 6 are fully supporting the case of the plaintiff, they could have examined themselves or lead their evidence before the evidence of the contesting defendants commenced. But, they did not avail such opportunity and, in fact, they wanted to play a role to fill up the gaps in the evidence of the plaintiff, after the evidence of the contesting defendants was closed.
10. Assuming the argument of the learned Counsel for the petitioner that petitioner-defendants 4 and 6 are entitled to lead their evidence in their own turn after the evidence of contesting defendants 1 to 3 was closed, is correct, defendant No. 4 could have come forward and asked for his right to lead evidence. In fact, he also waited till the 5th defendant-contesting defendant could lead his evidence and then only defendants 4 and 6 have come forward to lead evidence. This is nothing but abuse of process of law and any such permission to lead evidence at that stage would definitely cause prejudice to the interest of the contesting defendants. May be, every defendant has right to lead evidence. But, it cannot be said that the defendants, who are supporting the plaintiff, can also lead evidence after the closure of the evidence of the contesting defendants. The Court below has furnished cogent and convincing reasons for not allowing the petitioner-defendants 4 and 6, who are fully supporting the case of the plaintiff, to lead evidence after the evidence of the contesting defendants is closed. However, the observation of the Court below that 'so, this Court has no such power to permit the contesting parties at any stage to lead evidence' is not correct, since under Explanation added after Rule 2 of Order XVIII, the Court has power to permit the party to examine any witnesses at any stage, but only after recording reasons, though Sub-rule (4) of Rule 2 of Order XVIII has been omitted. Assuming that under Explanation to Rule 2 of Order XVIII, the Court can, for reasons to be recorded, allow any party to lead evidence at any stage, but, in this case, in view of the discussion made above, there are no reasons to allow the petitioner-defendants 4 and 6 to lead evidence after the evidence of contesting defendants is closed. The Court below has not committed any error in upholding the objection raised by the petitioner. There are no grounds to interfere with the impugned order, under Article 227 of the Constitution of India and the civil revision petition is devoid of merit and liable to be dismissed.
11. Accordingly, the civil revision petition is dismissed. No order as to costs.