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2017 DIGILAW 1044 (JK)

Nek Ram v. Bharat Bhushan

2017-12-02

JANAK RAJ KOTWAL

body2017
JUDGMENT : Janak Raj Kotwal, J. 1. Rule-4 of Order XVIII Code of the Civil Procedure, Svt. 1977 (CPC) as substituted by the Civil Laws (Amendment) Act, 2009 (Act VI of 2009), provides that in civil cases examination-in-chief of the witnesses shall be on their affidavits, copies whereof shall be supplied to the opposite party and cross and re-examination shall be recorded either by the court or by the commissioner appointed by the court. The issue raised in this petition under section 104 CPC read with Article 227 of the Constitution of India filed by the defendants involves a situation where a witness, whose examination-in-chief has been tendered on affidavit, dies before he could be produced before the court for cross-examination. A few facts leading to the situation, as it has arisen, are that in the suit filed by the plaintiffs, herein respondents, in the court of Munsiff, Billawar against the defendants, herein petitioners, the defendants tendered examination-in-chief of their witnesses on their sworn affidavits. Plaintiffs' evidence was closed on 19.03.2016 and thereafter commenced the cross-examination of the defendants' witnesses. Two witnesses of the defendants, namely, Ratan Chand S/o. Balak Ram and Ratan Chand S/o. Timbo Ram, however died on 29.10.2016 and 28.12.2016 respectively, before their cross-examination was recorded in the court. Defendants' counsel moved an application in file No. 60/civil misc. seeking permission to prove the affidavits tendered by these two witnesses in terms of section 33 of the Evidence Act, though by a subsequent application, they sought the application to be treated as one for permission to prove the affidavits in terms of section 32 of the said Act. In the course of arguments before the learned trial court, counsel for the defendants also tried to draw support from section 65 of the Evidence Act and submitted that section 65 clearly provides that document can be proved by secondary evidence. 2. While dealing with the aforementioned application, the learned trial court framed propositions as to whether "affidavit is evidence under the provision of law", whether "examination-in-chief of the witness shall covered under the definition of statement or document" and whether "affidavit of deceased person not cross examined by other side is admissible under law" and dismissed the application vide order dated 12.08.2017, which is impugned in this petition filed by the defendants. 3. 3. Learned trial court held, firstly, that generally the affidavits are not included in definition of evidence, but an affidavit is admissible as evidence if the court has directed any party to the proceedings to file the same or if law permits to prove a fact by filing affidavits. In regard to the affidavits tendered by aforementioned two witnesses, learned trial court held that in case defendants are allowed to prove these affidavits by secondary evidence, plaintiffs will not have the opportunity to cross-examine the witnesses, which will cause injustice to them. Learned court also noticed that the case was pending in the court for last seventeen years and the application was filed by the defendants only to delay the trial. Learned trial court, therefore, dismissed the application. 4. In this petition, the defendants (petitioners) have sought to draw support from chapter V of the Evidence Act relating to the documentary evidence. The petitioners have also drawn support from section 35 of the Evidence Act relating to relevancy of entries in public record. It is also contended by the petitioners that a statement made on affidavit is relevant in terms of sub-section (7) of section 33 of the Evidence Act and statement of a dead person is relevant under section 32 also. The petitioners have also relied upon section 80 of the Evidence Act. 5. Mr. P.N. Goja, learned counsel for the petitioners in general reiterated the contentions stated in the petition. Learned counsel urged that the affidavits sworn in by the two witnesses are admissible as evidence. They are couched in the presumption of truth under sections 32, 33, 35, 65 and 80 of the Evidence Act and can be proved by leading secondary evidence in terms of section 65(C) of the Evidence Act. Mr. Goja relied upon Supreme Court judgment in Bhogilal Chunilal Pandya v. State of Bombay, AIR 1959 SC 356 . 6. Per contra, Mr. R.K.S. Thakur, learned counsel appearing on behalf of the plaintiffs (respondents) urged that an affidavit is not evidence within the meaning of section 3 of the Evidence Act and cannot be proved or relied upon. Mr. Thakur relied upon Supreme Court judgment in Ayaaubkhan Noorkhan Pathan v. The state of Maharashtra and others, (2013) 4 SCC 465 . Mr. R.K.S. Thakur, learned counsel appearing on behalf of the plaintiffs (respondents) urged that an affidavit is not evidence within the meaning of section 3 of the Evidence Act and cannot be proved or relied upon. Mr. Thakur relied upon Supreme Court judgment in Ayaaubkhan Noorkhan Pathan v. The state of Maharashtra and others, (2013) 4 SCC 465 . Mr. Thakur argued further that the said two witnesses having not been cross-examined by the plaintiffs, the statements contained in their affidavits cannot be given the status of the plaintiffs' evidence and are inadmissible. 7. In terms of sections 137 and 138 of the Evidence Act, Svt. 1977, evidence of a witness, both in civil and criminal cases, comprises of his examination-in-chief, cross-examination and re-examination. The examination-in-chief is conducted by the party who brings/calls the witness, which is followed by the cross-examination by the opposite party. After cross-examination of the witness, the party bringing/calling the witness may re-examine him. Once a witness is examined by the party bringing/calling the witness, the opposite party has a right to cross-examine him, whereas the re-examination is subject to the leave of the court. 8. Order XVI CPC deals with summoning and attendance of witnesses in civil cases and Order XVIII CPC deals inter alia with examination of the witnesses. Rule-1 of Order XVI mandates the parties to a suit to present in the court list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summons for their attendance in the court within fifteen days after the date on which issues are settled. Rule-4 of Order XVIII deals with recording of the evidence of the witnesses. Under Rule-4 as it existed prior to the Act No. VI of 2009, the entire evidence of a witness, that is, examination-in-chief, cross-examination and re-examination was taken orally in the open court. This practice, however, has been changed to the extent of recording of the examination-in-chief of a witness with substitution of Rule-4 by Act No. VI of 2009. Under Rule-4 as it existed prior to the Act No. VI of 2009, the entire evidence of a witness, that is, examination-in-chief, cross-examination and re-examination was taken orally in the open court. This practice, however, has been changed to the extent of recording of the examination-in-chief of a witness with substitution of Rule-4 by Act No. VI of 2009. Rule-4 in its present form by virtue of its sub-rule (1) provides that in every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party, who calls him for evidence and by virtue of sub-rule (2) the cross-examination and re-examination of the witnesses, whose evidence (examination-in-chief) by affidavit has been tendered in the court, shall be taken either by the court or by a commissioner appointed by the court. 9. Sections 137 and 138 of the Evidence Act and Rule-4 of Order XVIII CPC have been enacted in keeping with the principles of natural justice to afford opportunity to a party to litigation to adduce evidence in support of his case inter alia by producing the witnesses and rebut the evidence of the opposite party inter alia by cross-examining the witnesses produced by him. Right of cross-examination, therefore, is ingrained in and is integral part of the constitutional principles of natural justice and fair trial. 10. The cardinal principle of the Evidence Act in conformity with the principles of natural justice and fair trial is that witnesses produced by a party should be examined in presence of the opposite party, except where the opposite party after service of notice on him has opted not to take part in the proceedings and has been set ex parte and that the opposite party should be afforded opportunity to cross-examine the witnesses produced by a party. The Act No. VI of 2009, however, has dispensed with the requirement of producing the witnesses before the court for recording their examination-in-chief and has made a provision for tendering the examination-in-chief of the witnesses on affidavit and producing them for their cross-examination before the court or before a commissioner to be appointed by the court. 11. The Act No. VI of 2009, however, has dispensed with the requirement of producing the witnesses before the court for recording their examination-in-chief and has made a provision for tendering the examination-in-chief of the witnesses on affidavit and producing them for their cross-examination before the court or before a commissioner to be appointed by the court. 11. In backdrop of the aforementioned statutory position, any attempt to draw support from section 32, 35, 65 and 80 of the Evidence Act in dealing with the situation involved in this case would not be apt for the reason that the affidavits of the aforementioned two witnesses cannot be treated as the statements of dead persons as contemplated under section 32 or any documentary evidence as contemplated under sections 35, 65 or 80. I would rather have no hesitation in observing that the learned counsel on each side as also the learned trial court has been unable to address the matter in its real perspective inasmuch as the propositions framed by the learned trial court do not reflect the situation in its true perception. The learned counsel as well as the learned trial court has addressed the situation from wrong angle. 12. The two affidavits of the two witnesses tendered on behalf of the defendants are nothing more than the examination-in-chief of the said two witnesses, who could not be produced for cross-examination due to their death during proceedings in the suit so the proposition arising for consideration is as, how to deal with these affidavits. Whether the statements in examination-in-chief made on affidavits by the said two witnesses can be used as evidence in the case without their cross-examination, is the abstract question? 13. Importance of cross-examination of a witness has been considered by the Supreme Court in the judgment in Ayaaubkhan Noorkhan Pathan (supra). Hon'ble Court has referred to the constitution Bench judgment of the Court in State of Madhya Pradesh v. Chintaman Sadashiva Waishampayan, AIR 1961 SC 1623 where it has been held that "the rules of natural justice, require that a party must be given the opportunity to adduce all relevant evidence upon which he relies, and further that, the evidence of the opposite party should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party. Not providing the opportunity to cross-examine the witness, would violate the principle of natural justice". On surveying the earlier decisions, Supreme Court in Ayaaubkhan Noorkhan Pathan has concluded that: "30. The aforesaid discussion makes it evident that, not only should the opportunity of cross-examination be made available, but it should be one of effective cross-examination, so as to meet the requirement of the principles of natural justice. In the absence of such an opportunity, it cannot be held that the matter has been decided in accordance with law, as cross-examination is an integral part and parcel of the principles of natural justice." 14. Evidence of the aforementioned two witnesses cannot be said to have been completely recorded as they could not be produced for cross-examination due to their death and the opposite party, that is, the plaintiffs, could not get opportunity to cross-examine them. The important aspect, however, is that they could not be produced before the court due to their death and not due to refusal or failure on the part of the defendants to produce them. Examination-in-chief of a witness, who could not be produced before the court for cross-examination due to unavoidable reasons, like his death, incapacity to give evidence etc. cannot be treated and rejected at par with examination-in-chief of a witness, who deliberately is not produced for his cross-examination by the party, who produced him in the examination-in-chief. Experience has shown that quite often the examination-in-chief and the cross-examination of a witness, both in civil and criminal cases, is not completed in the same sitting of the court for one or the other reason, like paucity of time or absence of counsel for the opposite party. In Sessions Trials, trial court under section 272(2) Cr.P.C. is vested with discretion to permit the defence to defer cross-examination of a witness until any other witness or witnesses is/are examined and in such cases possibility of the said witness dying or going beyond the reach of the court before his cross-examination is recorded cannot be ruled out. In Sessions Trials, trial court under section 272(2) Cr.P.C. is vested with discretion to permit the defence to defer cross-examination of a witness until any other witness or witnesses is/are examined and in such cases possibility of the said witness dying or going beyond the reach of the court before his cross-examination is recorded cannot be ruled out. In criminal cases, section 512 Cr.P.C. permits recording of evidence of the witnesses in absence of the accused where the accused has absconded and there is no immediate prospect of arresting him and using one such statement as evidence after arrest of the accused without cross-examination, if the witness "is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable." 15. Rejecting the examination-in-chief in such cases altogether would mean the loss of valuable evidence and will cause prejudice to the party producing the witness or having tendered his examination-in-chief on affidavit. The evidence in examination-in-chief of a witness, may it be one recorded before the court or tendered on affidavit, where the witness could not be produced before the court for unavoidable reasons, like his death, will not become totally useless and cannot be wholly excluded from consideration. It can well be read and considered along with other evidence though it cannot be used as substantive evidence sufficient to prove a fact in issue. There are sufficient authorities to support this view. 16. I may usefully refer to Supreme Court judgment in Rajiv Arora v. Union of India & Ors., AIR 2009 SC 1100 where it is clearly indicated that a situation may arise in which unavailability of a witness for a cross-examination can be condoned. It has been held: "Effective cross-examination could have been done as regards the correctness or otherwise of the report, if the contents of them were proved. The principles analogous to the provisions of the Indian Evidence Act as also the principles of natural justice demand that the maker of the report should be examined, save and except in cases where the facts are admitted or the witnesses are not available for cross-examination or similar situation. No reason has been assigned as to why the named witnesses who only could prove the change had not been examined. Indisputably, they were the prime witnesses. No reason has been assigned as to why the named witnesses who only could prove the change had not been examined. Indisputably, they were the prime witnesses. The High Court in its impugned judgment proceeded to consider the issue on a technical plea, namely, no prejudice has been caused to the appellant by such non-examination. If the basic principles of law have not been complied with or there has been a gross violation of the principles of natural justice, the High Court should have exercised its jurisdiction of judicial review." (underlining by me) 17. High Court of Patna in a similar fact situation in Srikrishun Jhunjhun wala v. Emperor, AIR (33) 1946 Patna has referred with approval to a judgment of Allahabad High Court in following manner in para 2 of the reporting: "In AIR 1944 ALL 188 it was decided that when a witness died after he had been examination-in-chief and before his cross-examination has been concluded, his evidence was admissible, but degree of weight to be attached to it depending upon the circumstances of the case." 18. In Ahmed Ali v. Jyoti Prasad, AIR 1944 ALL 188 , the witness namely, Wazir Singh, produced by the plaintiff therein died before he could be cross-examined and it was urged on behalf of the defendants that his evidence is not admissible. Learned Division Bench of the Allahabad High Court in this case after surveying the available authorities on the point held: "all relevant authority and also the provisions of the Evidence Act would support the proposition that the evidence of a witness in these circumstances is admissible and the Judge who is dealing with it must decide for himself whether he believes the facts stated or does not believe them. I hold, therefore, that learned Judge was entitled in this case to take evidence of Wazir Singh into consideration and that we are not entitled to ignore it although we may, if we chose, think that it is of little value." 19. In this regard, High Court of Calcutta in Devar Park Building Pvt. Ltd. v. Smt. Madhuri Jalan, AIR 2002 Calcutta 281 has held that there is no provision under law that if witness is not cross-examined either in full or part his evidence would be absolutely rendered inadmissible. How much weight shall be attached to his evidence should be decided considering other facts and circumstances of the case. How much weight shall be attached to his evidence should be decided considering other facts and circumstances of the case. 20. To summarize thus, the legal status of the aforementioned two affidavits is that of the examination-in-chief of the two witnesses of the defendants, who could not be produced for cross-examination due to their death and plaintiffs could not get opportunity to cross-examine them. These affidavits need not be rejected wholly, though they cannot be used as substantive evidence in proof of the fact/facts sought to be proved by the defendants. Trial court has to accord consideration to the statements contained in these two affidavits along with other evidence though, having regard to the facts and circumstances of the case as also to the fact that truthfulness of their evidence has not been tested in cross-examination. 21. However, before the said two affidavits can be put to aforementioned use, the defendants have to prove by leading evidence that the said two witnesses have died and that these affidavits have been executed and sworn in by the said witnesses. The impugned order passed by the learned trial court, therefore, needs to be modified accordingly. 22. For all that said and discussed above, the order dated 12.08.2017 passed by the learned trial court in file No. 60/civil misc. is modified by providing that learned trial court shall allow the defendants (petitioners) to lead evidence to prove the execution of aforementioned affidavits by the said two witnesses as also the factum of their death and shall use these affidavits in the manner stated above. 23. Besides the order passed in file No. 60/civil misc., petitioners have challenged another order of even date passed by the learned trial court in the main suit file. Having heard learned counsel for the petitioners and accorded consideration to his anxiety, this petition to this extent is disposed of by providing that learned trial court shall not close evidence of any witness, who is called under the process of the court, without passing a speaking order in this regard. Disposed of.