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2007 DIGILAW 2141 (MAD)

Mathuresan v. Duraisamy

2007-07-11

S.NAGAMUTHU

body2007
Judgment :- 1. The first defendant in O.S.No.121 of 2001, on the file of the learned Additional District Munsif, Karaikudi, is the petitioner herein. The respondent is the plaintiff in the suit. The petitioner challenges the order dated 18.03.2005 made in I.A.No.93 of 2005. 2. The respondent has filed the above suit for declaration of title and for recovery of possession of the suit property from the defendants and also for mesne profits. It is the case of the plaintiff that he has purchased the suit property from one Rasu Nadar and others by means of a registered sale deed dated 27.07.2000. The title so claimed by the plaintiff is disputed by the defendants. 3. During the trial, the above said Rasu Nadar was examined as D.W.3 on the side of the defendants. A proof affidavit was filed by way of chief examination, where he has stated that the sale deed said to have been executed in favour of the plaintiff, was not consciously executed and as a matter of fact, by misrepresentation, his signature was obtained in the sale deed and he has also stated that the possession was with the defendants. But, during cross examination by the learned counsel for the plaintiff, D.W.3 has stated that the suit property was sold in favour of the plaintiff and from that date onwards, the plaintiff has been in possession of the suit property. Though he has stated in the chief examination that without reading the sale deed, he signed the same, in cross examination he has stated that he has signed the document only after consciously knowing the contents of the same. He has further stated that in the proof affidavit filed by way of chief examination, he has signed the same only because of the intimidation of the petitioner herein by keeping him at Devakottai. 4. Realising that during cross examination, D.W.3 has shown hostility by giving a go by to his evidence in chief examination, the petitioner has filed I.A.No.93 of 2005, seeking permission of the Court to cross examine him as a provided under Section 154 of the Evidence Act, by treating him as hostile witness. The said application was however, dismissed by the lower Court. Challenging the same, this revision has been filed. 5. The said application was however, dismissed by the lower Court. Challenging the same, this revision has been filed. 5. The learned counsel for the petitioner would take me through the entire evidence of D.W.3 to show that D.W.3 has shown hostility towards the petitioner during cross examination, inasmuch as he has given a go by to his evidence in the chief examination and he has given evidence during cross examination supporting the case of the plaintiff. The learned counsel would further take me through the impugned order of the lower Court wherein, the Lower Court has curiously stated that Section 154 of the Evidence Act, is applicable only to criminal trails and not for civil suits. He would therefore, submit that the order of the Lower Court is not sustainable and the same should be set aside. He would further rely on the judgment of this Court reported in 1997(1) LW 92 (Shanmuganathan Vs. Vellaisamy) to substantiate his arguments. 6. Per contra, the learned counsel for the respondent would submit that there is a vast difference between a witness who can be called as a "hostile witness" and a witness who can be called as an "unfavourable witness". He would draw my attention to the judgment of the Hon’ble Supreme Court reported in AIR 1976 SUPREME COURT 294 (Sat Paul, v. Delhi Administration) wherein, the Hon’ble Supreme Court has discussed about these two kinds of witnesses and has pointed out that, according to English Law in the case of an unfavourable witness, the party calling him was allowed to contradict him by producing evidence aliunde but, the prohibition against the cross examination by means of leading questions or by contradicting him with his previous inconsistent statements or by asking questions with regard to his discreditable past conduct or previous conviction continued. But, in the case of a hostile witness, the judges could permit his examination-in-chief to be conducted in the manner of cross examination to the extent to which he considered necessary in the interests of justice. Relying on the said judgment, the learned counsel would submit that in the case on hand, D.W.3., at the most can be branded as an unfavourable witness and therefore, he should not be allowed to be cross examined but he should be allowed to be re-examined only. 7. Relying on the said judgment, the learned counsel would submit that in the case on hand, D.W.3., at the most can be branded as an unfavourable witness and therefore, he should not be allowed to be cross examined but he should be allowed to be re-examined only. 7. The learned counsel would further submit that assuming that D.W.3 is a hostile witness, he cannot be allowed to be cross examined by the defendants after the cross examination of the said witness by the plaintiff was already over. In nutshell, the learned counsel would submit that a witness can be allowed to be cross examined by the party who called him only before he is put to cross examination by the other party i.e., only during the chief examination itself and not after the cross examination of the said witness by the other party. 8. I have considered the rival submissions urged by the learned counsel for both parties. 9. As narrated above, the entire evidence of D.W.3 would go to show that he has to be branded only as a hostile witness. The reason being that in the chief examination, he has stated that without reading a sale deed in question, he signed the same whereas, in the cross examination, he has stated that having gone through the entire document, he signed the same. Further, in chief examination, he has stated that the possession was with the defendants wherein in cross examination he has stated that the plaintiff is in possession. Further, during cross examination he has stated that the entire chief examination which, is in the form of affidavit was signed by him only because of the coercion on the part of the petitioner by keeping him at Devakottai. All these evidences both in chief examination and cross examination would clearly establish that necessarily he has to be cross examined to extract the truth to do justice. 10. As rightly pointed out by the learned counsel for the petitioner, this Court had an occasion to deal with a similar situation in the case reported in 1997 (1) LW 92 (Shanmuganathan Vs. Vellaisamy) wherein, this Court has elaborately dealt with the scope of Section 154 of the Evidence Act, and it has been held that the adverse party has got a right to cross examine the hostile witness. Vellaisamy) wherein, this Court has elaborately dealt with the scope of Section 154 of the Evidence Act, and it has been held that the adverse party has got a right to cross examine the hostile witness. On my part, I have to refer to the judgment of the Hon’ble Supreme Court reported in AIR 1977 SC 170 (Rabindra Kumar Dev Vs. State of Orissa) wherein, also the Hon’ble Supreme Court has held that, the Court may, in its discretion permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party. The Supreme Court had cautioned that the said discretion is to be exercised judiciously. The Hon’ble Supreme Court has further stated that merely because a witness in an unguarded movement speak the truth which may not suit the prosecution or which may be favourable to the accused to allow the party concern to cross examine its own witness cannot be allowed. Applying the said principles, if the evidence of D.W.3 is looked into, I am of the clear opinion that discretion of the Court should have been exercised in favour of the defendants to permit them to cross examine the said witness. A close scrutiny of the evidence of D.W.3 would go to establish that it is not as if in an unguarded movement he has spoken the truth which is not in favour of the defendants. But, deliberately he has given contradictory evidence to what he has stated in the chief examination. It is to be remembered at this juncture that in chief examination, he has stated that without reading the document he has signed thereby consciously indicating that the said sale deed is a void contract. But in the cross examination, he says that the sale deed was validly executed. More than this, there cannot be any sign of hostility on the part the witness. Therefore, I have no hesitation to hold that this witness has to be allowed to be cross examined by the adverse party as held by the Hon’ble Supreme Court in the above case. 11. The contention of the learned counsel for the respondent that there is a vast difference between a hostile witness and an unfavourable witness, cannot be accepted at all. 11. The contention of the learned counsel for the respondent that there is a vast difference between a hostile witness and an unfavourable witness, cannot be accepted at all. Even in the judgment relied on by the learned counsel for the respondent in Sat Paul v. Delhi Administration ( AIR 1976 SC 294 ), the Honble Supreme Court has held that terms "hostile" witness, "adverse" witness, "unfavourable" witness have relevance only in English law and not in Indian Evidence Act. In paragraph No.37, of the judgment, it has been held as follows:- "37. To steer clear of the controversy over the meaning of the terms "hostile" witness, "adverse" witness, "unfavourable" witness which had given rise to considerable difficulty and conflict of opinion in England, the authors of the Indian Evidence Act, 1872 seem to have advisedly avoided the use of any of those terms so that, in India, the grant of permission to cross-examine his own witness by a party is not conditional on the witness being declared "adverse" or "hostile". Whether it be the grant of permission under Sec.142 to put leading questions, or the leave under Section 154 to ask questions which might be put in cross-examination by the adverse party, the Indian Evidence Act leaves the matter entirely to the discretion of the Court (see the observations of Sir Lawrence Jenkins in Baikuntha Nath v. Prasannamoyi), AIR 1922 PC 409. The discretion conferred by Section 154 on the court is unqualified and untrammelled, and is apart from any question of "hostility". It is to be liberally exercised whenever the court from witnesses demeanour, temper, attitude, bearing or the tenor and tendency of his answers, or from a perusal of his otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does not amount to an adjudication by the court as to the veracity of the witness.........." 12. The contention that D.W.3 is only an "unfavourable" witness and so, he should not be allowed to be cross examined is only to be rejected. As stated in the above judgment, D.W.3 should be allowed to be cross examined by the petitioner to elicit the facts and to contradict him. 13. The contention that D.W.3 is only an "unfavourable" witness and so, he should not be allowed to be cross examined is only to be rejected. As stated in the above judgment, D.W.3 should be allowed to be cross examined by the petitioner to elicit the facts and to contradict him. 13. The next contention of the learned counsel for the respondent is that a witness can be allowed to be treated as hostile only during chief examination and not after he was cross examined by the other party. The said contention also cannot be accepted. It is well settled law and repeatedly held by the Hon’ble Supreme Court, that a witness can be allowed to be cross examined by the party who has called him as a witness even after the said witness has been cross examined by the other party. Therefore, the second limb of the argument of the learned counsel for the respondent also is liable to be rejected. I am also not able to countenance the argument of the learned counsel for the respondent that the witness has to be allowed to be re-examined by the petitioner. It is needless to say that re-examination is at the discretion of the party who called him as a witness as provided under Section 138 of the Evidence Act, which does not require any permission from the Court. Therefore, the said contention of the learned counsel for the petitioner that the witness should be allowed only to be re-examined also cannot be accepted. 14. The learned counsel for the respondent would lastly contend that there would be no purpose in allowing the said witness to be cross examined by the defendants by treating him as hostile. It need not be over stressed at this juncture that the purpose of cross examination is to elucidate the facts as provided under Section 146 of the Evidence Act. Therefore, by allowing the said witness to be cross examined by the defendants, the defendants may be in a position to elucidate the facts which are very relevant for the appreciation of his evidence as well as the other materials on record. 15. At this juncture, I have to say something about the order of the Lower Court. The Lower Court has misdirected itself by misunderstanding the provisions contained in Section 154 of the Evidence Act. 15. At this juncture, I have to say something about the order of the Lower Court. The Lower Court has misdirected itself by misunderstanding the provisions contained in Section 154 of the Evidence Act. The Lower Court has held that the said provision is applicable only to the criminal trials and not for civil cases. I am not able to appreciate the said stand taken by the Lower Court which is totally misconceived. I want to make it clear that Section 154 of the Act, is a procedure common to all kinds of trials wherever a witness is examined under law. 16. In the result, the order passed by the learned District Munsif, Karaikudi dated 18.03.2005 made in I.A.No.93 of 2005 in O.S.No.121 of 2001 is set aside. I.A.No.93 of 2005 stands allowed. The civil revision petition is allowed. No Costs. Consequently, the connected C.M.P. is closed.