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2010 DIGILAW 701 (MP)

Ramhet v. Rampyari

2010-07-15

S.K.GANGELE, S.S.DWIVEDI

body2010
ORDER S.S. Dwivedi, J -- 1. The petitioners have filed this petition under Article 227 of the Constitution of India, aggrieved by the order dated 21.8.2008, passed by the Civil Judge, Class-II, Sabalgarh, District Morena in Civil Suit No. 66-A/2006, whereby allowing the application for taking on record statement of Rampyari Bai, the plaintiff recorded in another Civil Suit No. 41-A/05 but rejected the prayer for further cross-examination of plaintiff Rampyari Bai on the basis of her statement. 2. Brief facts of the case are that the present suit has been filed by one Rampyari Bai against the petitioners/defendants for declaration and injunction. Similarly, another suit has been tiled by the defendants for declaration and injunction which has been registered as presently new No. 41-A/05. In the present case, the petitioners/defendants filed a certified copy of the statement of Rampyari Bai, which has been recorded and completed on 3.5.2008. Similarly, in the present case, her statement has been completed on 19.2.1998. Thereafter, the petitioners/defendants filed an application under Order 18 Rule 17 of CPC and filed certified copy of the statement of plaintiff Rampyari Bai recorded in the aforesaid another suit and prayed for further cross-examination on Rampyari Bai in the present case. The learned trial Court by impugned order partly allowed the application, taken the certified copy of the statement of Rampyari Bai on record but rejected the prayer of the defendants for further cross-examination of Rampyari Bai. Therefore, aggrieved by only that part of the impugned order, the petitioners/defendants came up before this Court by this writ petition. 3. Heard learned counsel for the petitioners as well as learned counsel for the respondents and perused the record. 4. It is submitted on behalf of the petitioners/defendants that Rampyari Bai had given the statement in the present suit as well in the another suit filed by the petitioners/defendants, there are some material contradictions in both of these statements, therefore, unless these material contradictions will be brought on record in the present case that cannot be looked into. In such circumstances, the petitioners have filed the aforesaid application for the permission of further cross-examination on Rampyari Bai, the plaintiff. The learned trial Court has wrongly rejected the aforesaid prayer. Hence, petitioners prayed for setting aside the impugned order. 5. Learned counsel for the respondents supported the impugned order and prayed for dismissal of the petition. 6. In such circumstances, the petitioners have filed the aforesaid application for the permission of further cross-examination on Rampyari Bai, the plaintiff. The learned trial Court has wrongly rejected the aforesaid prayer. Hence, petitioners prayed for setting aside the impugned order. 5. Learned counsel for the respondents supported the impugned order and prayed for dismissal of the petition. 6. After hearing learned counsel for the parties, we are of the considered opinion that section 145 of the Evidence Act, clearly provides the object of cross-examination on the basis of previous statement made by the party in some other inquiry or judicial proceeding. It will be useful to quote here the relevant provisions of section 145 of the Evidence Act. "145. Cross-examination as to previous statements in writing -- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved be called to those parts of it which are to be used for the purpose of contradicting him." 7. On perusal of the aforesaid provisions of section 145 of the Evidence Act, it is apparent that the previous statement of a person can be used for the purpose of impeaching credit of the statement given by the person concerned and for this purpose only certified copy of the statement produced by the party concerned shall not serve the purpose, unless an opportunity for cross-examination should be given to him. 8. Learned counsel for the respondents stressed upon the fact that that provisions of section 145 of the Evidence Act can only apply to the previous statement. 9. We are unable to accept the aforesaid contention of learned counsel for the respondents. When application for further cross-examination has been filed on behalf of the petitioner/defendants, at this stage, the statement of Rampyari Bai recorded in the separate suit becomes the previous statement of Rampyari Bai. Therefore, at the time of further cross-examination, this will be deemed to be the previous statement of the party concerned. Thus, the provisions of section 145 of the Evidence Act will be applicable in the present facts of the case. 10. Therefore, at the time of further cross-examination, this will be deemed to be the previous statement of the party concerned. Thus, the provisions of section 145 of the Evidence Act will be applicable in the present facts of the case. 10. Learned counsel for the respondents placed reliance on a decision of the Hon'ble apex Court in the case of Mishrilal and others v. State of M.P. and others, [2005 (2) Vidhi Bhaswar 147 = (2005) 10 SCC 701 ], wherein the Hon'ble apex Court held that:-- "Once the witness was examined-in-chief and cross-examined fully, such witness cannot be recalled and re-examined to deny the evidence he had already given before the Court as per the provisions of section 311 of Code of Criminal Procedure." 11. The facts of the aforesaid case are different to the facts of the present case. In the aforesaid case, one witness has been examined during trial against accused persons and he has also given statement in the juvenile Court for some other co-accused who is found to be a juvenile. In that case, the Hon'ble apex Court held that he cannot be permitted to re-cross-examine on the basis of his subsequent statement. But, in the present, same witness has given different statement to call the plaintiff for further cross-examination, so that the party shall have an opportunity to explain that there are some contradictions in these two statements on certain facts. 12. The Hon'ble apex Court in the case of Kehar Singh & others v. The State (Delhi Admn.) AIR 1988 SC 1883 , while explaining the scope of sections 145,155 and 157 of the Evidence Act, held that: "A perusal of sections 145, 155 and 157 of the Evidence Act clearly indicates that there are two purpose for which a previous statement can be used. One is for cross-examination and contradiction and the other is for corroboration. When the defence wants to use the previous statement of a witness it could be only to contradict and not to corroborate." 13. One is for cross-examination and contradiction and the other is for corroboration. When the defence wants to use the previous statement of a witness it could be only to contradict and not to corroborate." 13. In view of the aforesaid provisions of sections 145, 155 and 157 of the Evidence Act, we are of the considered opinion that the learned trial Court has committed an error by rejecting the prayer of the petitioners/defendants for permission to further cross-examination on the statement of Rampyari Bai, the plaintiff on the basis of her statement recorded in the connected Civil Suit No. 41-A/05. 14. Consequently, the present writ petition succeeds and is hereby allowed partly. The part of the impugned order whereby the prayer for further cross-examination of plaintiff Rampyari Bai rejected by the learned trial Court is set aside with the following directions (1) The trial Court will recall plaintiff Rampyari Bai for the purpose of further cross-examination by the defendants on the basis of her statement given in the connected Civil Suit No. 41-N05. (2) Only one opportunity be given to the petitioners/defendants and they will have to complete further cross-examination of the aforesaid plaintiff within a specified Court hours' in one day. (3) The petitioners/defendants shall pay a cost of Rs. 2,000/- to the plaintiff for the purpose of aforesaid further cross-examination. Only on payment of the aforesaid cost of Rs. 2,000/-, the learned trial Court will permit the petitioners/defendants for further cross-examination on plaintiff Rampyari Bai. After completion of further cross-examination, the learned trial Court will proceed with the case according to law. 15. With the aforesaid, writ petition stands disposed of with no order as to costs.