Research › Search › Judgment

Tripura High Court · body

2016 DIGILAW 16 (TRI)

Anal Roy Choudhury v. Madhab Saha

2016-01-25

DEEPAK GUPTA

body2016
JUDGMENT : The petitioner, by means of this petition, had prayed for the grant of various relief’s and had specifically prayed that the order under challenged is illegal and not in accordance with law. 2. I had heard the matter on 4th January, 2016 and I was not in agreement with the learned counsel for the petitioner and according to me the order was a very legitimate and proper order. No party can try to overreach the Court by almost threatening that either its request be accepted or the Judge rescue from the case. 3. On going through the records I find that the main dispute was with regard to the recording the cross-examination of a witness. In cross-examination the witness stated that he did not personally know the defendant. Thereafter, a suggestion was put to him that he had stated a lie in the affidavit wherein it was mentioned that he knew the parties. The answer of the witness was that since the name of the defendant who is the Editor of a well known Paper is printed in the newspaper he had stated that he knows the defendant but not that he personally knew the defendant. 4. The learned trial Court has recorded the statement as follows: “I have no personal identification or relation with defendant and I do not know him personally. I know the defendant and I stated the same in my examination in chief because I read his name and I came to know about him from the news paper.” The way in which the answer has been recorded, in my opinion is the only proper way of recording the answer. 5. The submission made by the petitioner is that first the suggestion should have been either answered in Yes or No and then the further clarification of the witness could have been recorded. In the first part of the cross-examination the witness has very clearly stated that he has no personal identification or relation with the defendant and he does not know him personally. In my opinion that itself was a complete answer in itself. 6. His second answer is that in his affidavit he stated that he knew the defendant because he read his name in the newspaper. The explanation will have to be part of the answer. It cannot be separately recorded. In my opinion that itself was a complete answer in itself. 6. His second answer is that in his affidavit he stated that he knew the defendant because he read his name in the newspaper. The explanation will have to be part of the answer. It cannot be separately recorded. The sum and substance of the cross-examination has been recorded properly and I am constrained to observe that the behavior of the counsel was also not proper inasmuch as he virtually threatened the Judge that either the Judge should record the cross-examination as suggested by the counsel or the Court should transfer the case to this Court. 7. I fail to understand how the learned counsel could have raised such an objection. The answers have been properly recorded. Since the counsel was aggrieved by the manner in which the statement of the witness was recorded he made a request to the Court and thereafter, the learned Judge passed the impugned order, relevant portion of which reads as follows: “While examining PW.2 Sri Nantu Ch. Das the first question asked by Ld. Counsel mr. Bhattacharjee is that whether he has personal knowledge or relation with defendant Sri Anal Roy Chowdhury and the witness answered that he has no personal knowledge or relation with defendant and he does not know him and accordingly the same is recorded. The next question asked is that in examination in chief filed by way of affidavit in para-1 the witness Nantu Ch. Das stated that he knows the defendant and the same is false as he has no personal knowledge about him but the witness answered that he know the defendant and he stated the same in his examination in chief because he read the name of the defendant and came to know about the defendant from the newspaper and the same is accordingly recorded. At that point Ld. Counsel Mr. Bhattacharjee submitted that the Court cannot record the answer given in the way the same is recorded but the same is to be recorded like that “my statement made in examination in chief as to the fact that I know the defendant is not true”. But this Court is of the view that the manner of recording the statement as stated by Ld. Counsel of the defendant Mr. But this Court is of the view that the manner of recording the statement as stated by Ld. Counsel of the defendant Mr. Bhattacharjee cannot be allowed because the answered given by the witness is to be recorded and not the answered expected by Ld. Cross examining counsel. At this point Ld. Counsel Mr. Bhattacharjee submitted that he would not cross examine the witness Nantu Ch. Das and other two witnesses in this Court and he would file necessary application before this Court. I am of the view that ld. Counsel for the defendant is at liberty and it is his discretion to decide whether he is to cross examine the witness or not. However the witnesses are present they are examined in chief and cross examination is deem to be refused and, thus, dispensed with as per Order 17, Rule 1, Sub Rule (2)(e) of CPC. However, necessary further order will be passed on receipt of the application, if any, from the side of the defendant.” In my opinion the learned Judge has been rather liberal with the petitioner. He has recorded all the objections raised by the counsel for the petitioner and then has clearly explained why he recorded the answer in that particular manner. Every suggestion cannot be answered by a simple Yes or No. To repeat an of repeated suggestion nobody can give an answer in Yes or No to the following suggestion- “have you stopped beating your wife?” 8. An answer either yes or no would mean that the person beats his wife. Therefore, the explanation has to be part of the answer itself and here the suggestion was have you made a false averment in the affidavit or not. The witness was explaining why he had said that he knew the defendant and that was part of the explanation and therefore, to castigate and cast aspersions on the Judge was highly unfortunate. 9. Therefore, on 4th January, 2016 only I had made it clear that I shall uphold the order and at that stage learned counsel had prayed that he limited his prayers to the limited extent that now he may be permitted to cross-examine the witness. Though the conduct of the defendant petitioner has not been above board, in the larger interest of justice I am granting 1(one) further opportunity to the defendant respondent to cross examine the witnesses whose examination was recorded. Though the conduct of the defendant petitioner has not been above board, in the larger interest of justice I am granting 1(one) further opportunity to the defendant respondent to cross examine the witnesses whose examination was recorded. However, the cost of summoning the witnesses, if any, shall be borne by the defendant and the defendant petitioner shall also pay Rs.2,000/-(Rupees two thousand) as cost to the respondent plaintiff. 10. The parties through their counsel are directed to appear before the learned trial Court on 29th February, 2016, on which date, the defendant must pay the cost to the plaintiff-respondent and thereafter, the learned trial Court shall fix one date in the month of March, 2016 for cross-examination of the witnesses. 11. With these observations and directions the petition stands disposed of. 12. Send down the LCRs forthwith.