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Andhra High Court · body

2007 DIGILAW 989 (AP)

K. YESHWANTH RAO v. T. JAYASIMHA REDDY

2007-10-05

G.ROHINI

body2007
( 1 ) THIS Civil Revision Petition is directed against the order of the learned i-Additional Senior Civil Judge, Warangal, dated 26-4-2007 thereby rejecting the request of the Revision petitioner/1st defendant in O. S. No. 262 of 1996 to declare D. W. 7 as hostile. ( 2 ) THE facts, in brief, are as under : the plaintiff/1st respondent herein filed O. S. No. 262 of 1996 on the file of the Court of I-Additional Senior Civil Judge, Warangal, for eviction and recovery of vacant possession of Plaint B-Schedule Property and for permanent injunction restraining the 1st defendant/revision petitioner from interfering with the plaintiff's possession and enjoyment of Plaint A-Schedule Property and for other reliefs. The suit claim was based upon a Registered Sale Deed, dated 16-1-1995, executed by the defendants 2 and 3. The 1st defendant/revision Petitioner filed written statement claiming title to the Suit schedule Property under a Registered Will, dated 24-1-1976 executed by his father and contending that the defendants 2 and 3 have no manner of right to alienate the Plaint B-Schedule Property which is a part and parcel of Plaint A-Schedule Property. ( 3 ) DURING the trial, the 1st defendant got himself examined as D. W. 2. On an application made by him one N. Balakrishna Rao, the attesting witness of the will, dated 24-1-1976, was summoned to give evidence as D. W. 7. He was partly examined in chief on 26-4-2007 and when he was recalled on 27-4-2007 for further chief-examination, the counsel for the defendant No. 1 requested the court to declare him as hostile. After hearing both the parties, the Court below, by order, dated 26-6-2007, declined to declare D. W. 7 as hostile. The said order is under challenge in this Civil Revision Petition. ( 4 ) I have heard the learned Counsel for both the parties and perused the material on record. No provision under the Evidence Act, 1872 contained the expression "declaring a witness hostile". However, Section 154 of the Evidence Act, 1872 provides for grant of permission by the Court to a party to put any questions to his own witness which might be put in cross-examination by the adverse party. This in popular language is described as declaring a witness as hostile. Section 154 of the Indian Evidence Act, 1872 runs as under: 154. This in popular language is described as declaring a witness as hostile. Section 154 of the Indian Evidence Act, 1872 runs as under: 154. Question by party to his own witness :- The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. " ( 5 ) IN SAT PAUL v. DELHI ADMINISTRATION while observing that the discretion under section 154 of the Evidence Act is unqualified and untrammeled, the Supreme court held thus : "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 the witnesse's demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or 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. Therefore, in the order granting such permission, it is preferable to avoid the use of expressions, such as "declared hostile", "declared unfavourable", the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that had so long vexed the English Courts. " ( 6 ) IN R. K. DEY v. STATE OF ORISSA, the Supreme Court held that Section 154 confers a judicial discretion on the Court and explained as to how such discretion has to be exercised. "it may be rather difficult to lay down a rule of universal application as to when and in what circumstances the Court will be entitled to exercise its discretion under Section 154 of the Evidence Act and the matter will largely depend on the facts and circumstances of each case and on the satisfaction of the Court on the basis of those circumstances. Broadly, however, this much is clear that the contingency of cross-examining the witness by the party calling him is an extraordinary phenomenon and permission should be given only in special cases. Broadly, however, this much is clear that the contingency of cross-examining the witness by the party calling him is an extraordinary phenomenon and permission should be given only in special cases. It seems to us that before a Court exercises discretion in declaring a witness hostile, there must be some material to show that the witness has gone back on his earlier statement or is not speaking the truth or has exhibited an element of hostility or has changed sides and transferred his loyalty to the adversary. Furthermore, it is not merely on the basis of a small or insignificant omission that the witness may have made before the earlier authorities that the party calling the witness can ask the Court to exercise its discretion. The Court, before permitting the party calling the witness to cross-examine him, must scan and weigh the circumstances properly and should not exercise its discretion in a casual or routine manner. " ( 7 ) FROM the above, it is clear that the matter is entirely in the discretion of the court whether to permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. It is also clear that such discretion has to be exercised by the Court before which the matter comes up judiciously on being satisfied that the witness really bears a hostile animus to the party calling him. Such satisfaction of the court naturally depends upon the hostility or adverseness displayed by the witness to the party on whose behalf he has come to give evidence. Inference of hostility is a matter for the Court to decide and can only be drawn from the answers given by the witness. ( 8 ) IN the case on hand, D. W. 7, who was the attesting witness of Ex. B-157 Will, was summoned to give evidence on behalf of the defendant No. 1. In the chief-examination he deposed as under : "i know D. 1. I know P. W. 1. I did not see the father of the defendant No. 1 by name Madhusudhan Rao. My father in law Seetharama Rao brought a document to me and obtained my signature on it as 2nd attesting witness. (The witness shown Ex. B-157 and he was asked to identify his signature on it. I know P. W. 1. I did not see the father of the defendant No. 1 by name Madhusudhan Rao. My father in law Seetharama Rao brought a document to me and obtained my signature on it as 2nd attesting witness. (The witness shown Ex. B-157 and he was asked to identify his signature on it. After going through the document the witness identified his signature as 2nd witness in the said document.)The 3rd attesting witness signature on Ex. B-157 is the signature of my father in law Seetharama Rao. I heard about Seetharamchander Rao who was a document writer. I got enrolled myself as an Advocate in the year 1979. " ( 9 ) AT that stage, the further chief-examination was deferred on a request made by the Counsel for the defendant No. 1 stating that he intended to gather some information. However, on the next day when D. W. 7 was recalled for further chief-examination, the Counsel for the 1st defendant requested the Court to declare him hostile. ( 10 ) AS noticed above, a party can be allowed to cross-examine his own witness only when the Court is satisfied that the witness demonstrated hostility to the person who called him as a witness. In other words, either from the evidence already recorded or from the attitude and demeanour of the witness, the Court must be satisfied that the witness is hostile to the person who called him as a witness. ( 11 ) IN the instant case, the Court below, on application of mind to the facts and circumstances of the case, particularly the evidence already on record, found that the evidence of D. W. 7 in his chief-examination did not reflect any hostility towards the 1st defendant. May be that the testimony of D. W. 7 was unfavourable to the 1st defendant who called him as witness. However, that by itself cannot be a ground to conclude that D. W. 7 was not speaking the truth. Such attitude, if adopted, would seriously undermine the integrity of a witness in a Court of Law. ( 12 ) HOWEVER, the learned Counsel for the petitioner contended that the Court below committed an error in assuming that D. W. 7 was speaking the truth merely on the ground that he was an advocate by profession. Such attitude, if adopted, would seriously undermine the integrity of a witness in a Court of Law. ( 12 ) HOWEVER, the learned Counsel for the petitioner contended that the Court below committed an error in assuming that D. W. 7 was speaking the truth merely on the ground that he was an advocate by profession. ( 13 ) IT is true that the fact that D. W. 7 happened to be an advocate by profession is not a relevant factor to assess the veracity of his testimony. However, since the conclusion of the Court below was not based only on the said ground, it cannot be held that the Court below failed to exercise the discretion judiciously and properly. From the reasons assigned in the order under Revision, it is evident that even otherwise the Court was of the opinion that no permission could be granted to the 1st defendant to put questions to D. W. 7 which might be put in cross-examination by the adverse party. Hence, I do not find any justifiable reason to hold that the order under Revision suffers from any error warranting interference by this Court in exercise of the power of superintendence under Article 227 of the Constitution of India. Accordingly, the Civil Revision Petition is dismissed. No costs.