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2017 DIGILAW 358 (ORI)

Ramamani Pradhan v. Premalata Pradhan

2017-04-05

D.DASH

body2017
JUDGMENT : In this application under Article 227 of the Constitution, the petitioners being the legal representatives of the original defendant no.4 coming to be substituted as defendant no. 4(a) to 4(d) in T.S. No. 43 of 1991 impeach the order passed by the learned Civil Judge (Senior Division), IInd Additional Court Cuttack, in the said suit rejecting their petition to expunge the evidence of P.W.3 on record for being eschewed from consideration in deciding the suit. 2. It may be stated that one Kasinath was the original plaintiff. On his death, the present opposite parties no. 1 to 5 having came to be substituted, are pursuing the suit. 3. The suit is one for partition and the subject matter of the same are the property described in schedule ‘B’ and ‘C’ of the plaint. In so far as schedule ‘B’ property is concerned, there remains no such dispute with regard to its nature and thus there stands no contentious issue on the score that the schedule ‘B’ property is liable to be partitioned. The dispute centers round the properties described in scheduled ‘C’ of the plaint. When the plaintiffs claim it to be the joint family property liable for partition amongst the members of the family entitling them with their share as per law, these petitioners representing the branch of defendant no.4 with defendants no. 11, 13 to 16 and 17 claim it to be the self acquired and thus exclusive property of Brandaban, one amongst the four brothers being the one of the sons of common ancestor Krushna. For better appreciation, it may be also stated that when Kasinath’s branch claim the said property as such to be the joint family property liable for partition amongst the members of the family in accordance with the share that they are legally entitled to get, the members of the branch of Brundaban except one seriously contest that factual aspect in further claiming the same as the exclusive property of Brundaban not available in the hands of all the members of other branches of the family. The members of other two branches having been splintered go to support. 4. The hearing of the suit commenced with the examination of the witnesses on behalf of the plaintiffs. The stage arrived when the plaintiffs citing the defendant no.3 as a witness on their behalf brought him to the witness box as P.W.3. The members of other two branches having been splintered go to support. 4. The hearing of the suit commenced with the examination of the witnesses on behalf of the plaintiffs. The stage arrived when the plaintiffs citing the defendant no.3 as a witness on their behalf brought him to the witness box as P.W.3. His examination-in-chief continued on few days whereby as finds mention in his deposition eleven paragraphs have been so recorded. After that, the defendants supporting the plaintiffs and not contesting the claim as laid by the plaintiffs when declined to cross-examine the said witness, the term came for these petitioners (defendants) to cross-examine. The cross-examination commenced from 20.09.2001. The cross-examination has been made on 10.10.2001, 11.10.2001, 12.10.2001, 16.10.2001, 17.10.2001, 16.11.2001, 20.11.2001, 21.11.2001, 22.11.2001, 23.11.2001, 28.11.2001, 03.12.2001 and 04.12.2001. The cross-examination was made on thirteen dates beginning from third week of September, 2001 to first week of December, 2001. At this juncture, it may be indicated that after the cross-examination continued on five dates followed by recording of eight paragraphs and then the recording of evidence of P.W.3 stood closed. It is submitted at the Bar that on one date prior to 16.11.2001 when the witness (P.W.3) was to be further cross-examined as earlier fixed, since there came no response from these petitioners who were then cross-examining, the evidence of P.W.3 had been closed. However, these petitioners again prayed to recall P.W.3 for further cross-examination. It having been permitted the recording of evidence of P.W.3 was taken up on 16.11.2001 first after said recall. Then again it continued on 20.11.2001, 21.11.2001, 22.11.2001, 23.11.2001, 28.11.2001 and 03.12.2001. Thereafter on account of absence of Presiding Officer the case faced few adjournments and when it was fixed to 04.01.2002, memos were filed intimating the factum of death of that witness in the meantime. 5. In view of the death of P.W.3 (defendant no.3), the matter arose for consideration on being moved by the petitioners as to if his evidence would be eschewed and expunged from being taken into consideration in the suit standing for decision on the settled issues or not. The trial court has rejected the move saying that on the face of record when it is found that there has been extensive cross-examination of P.W.3, the testimony of P.W.3 cannot be said to be an unfinished one. The trial court has rejected the move saying that on the face of record when it is found that there has been extensive cross-examination of P.W.3, the testimony of P.W.3 cannot be said to be an unfinished one. In that view of the matter, the petition of these petitioners to expunge the testimony of P.W.3 has been rejected by the order under Annexure-5 which has been impeached herein. 6. Learned counsel for the petitioners submits that since that P.W.3 died at the time when his cross-examination was very much in progress, his testimony has to be taken as unfinished one and therefore it being not admissible, the same ought to be expunged as otherwise consideration of the said evidence for the purpose of decision on the contentious issue would seriously prejudice the petitioners (defendants). In support of his contention, he has placed reliance in the case of Narasingh Das vrs. Gokul Prasad and others, AIR 1928 Allahabad 140; Diwan Singh & others vrs. Emperor, AIR 1933 Lahore 561 and Sundara Rajali vrs. Gopala Thevan and another, AIR 1934 Madras 100. Learned counsel for the opposite party no. 6 and 7 contends all in favour of the sustainability of the impugned order. Other opposite parties are absent and have gone without being represented through any counsel during hearing. 7. On the undenied facts as narrated relating to the subject matter in question, let me first of all take note of the position of law vis-a-vis the facts and circumstances of the cited cases. 8. In case of Narasingh (supra), the witness was examined in chief and cross-examined in part on commission on a particular day. When it came around 9.00 PM, the parties wished to separate. The witness was also unwell. The cross-examining counsel when wanted it to be taken up on the next date, the learned counsel for the party on whose behalf the witness was being examined stated about his other engagements. So lastly the matter was left open. When it stood thus the witness died after four days. The court refused to take into consideration, the evidence holding it to be incomplete in the facts and circumstances as above presented. In case of Diwan (supra), in private prosecution, the witness was required to be examined under section 540 Cr.P.C., 1898. He was examined and cross-examined in part. When it stood thus the witness died after four days. The court refused to take into consideration, the evidence holding it to be incomplete in the facts and circumstances as above presented. In case of Diwan (supra), in private prosecution, the witness was required to be examined under section 540 Cr.P.C., 1898. He was examined and cross-examined in part. But before completion, the witness had to leave on Government work and go abroad. So examining the provision of section 540 of the Code, the statement was held to be admissible for the purpose. In case of Sundara (supra), it was found that the burden of proof of loss of pronote was on the plaintiff. In an earlier trial one of the plaintiffs had stated so. Therefore, it was prayed for acceptance of said evidence in the later suit. The court rejected the same. The defendant had executed the note. It having been pointed out, the court first of all concluded that the admission of the defendant as regards the execution of the pronote cannot be taken as an admission that it was lost by the plaintiff. So, the evidence of one of the plaintiffs in the earlier proceeding where there was no opportunity to the adversary to cross-examine the witness was held to be inadmissible in the subsequent suit. 9. Though it is not strictly in accordance with Evidence Act to rely upon the rules of English Law upon this point yet the evidence of a witness who has been examined in open court is not inadmissible in England merely because it is impossible afterwards to cross-examine him. The following few passage in para 1469 in the tenth edition of Taylor’s Law of Evidence may be quoted. . “In the event of the death or serious illness of a witness between his examination in chief and his cross-examination……… in England both a late Master of the Rolls and a late Vice Chancellor have in a civil case held that the evidence previously given by him is admissible, though the degree of weight to be attached to it is of course a question of fact”. There is a similar statement in Phipson’s Law of Evidence, Edn. There is a similar statement in Phipson’s Law of Evidence, Edn. 7, page 459:-that the evidence in such circumstances is admissible but that the weight to be attached to it depends on the circumstances of each case as has been held in Mangal Sen v. Emperor, AIR 1929 Lah. 840, following the case in Maharaj of Kolhapur v. Sundaram Ayer, AIR 1925 Madras 497 and 48 Madras-I, in Mt. Horil v. Rajab Ali, AIR 1936 Pat. 34-where English authorities are quoted. The difference between rejecting the evidence on the ground that it is legally inadmissible and ignoring it upon the ground that it should not be believed may often be of very little importance in practice but the distinction is important in principle because if the evidence is inadmissible the court is not entitled to consider it at all whereas if it is admissible the court must decide on the circumstances of each case whether any weight should be attached with the authority and provision of the Evidence. Act would support the proposition that the evidence of a witness in these circumstances is admissible and the Judge dealing with it must decide for himself whether he believes the facts stated or does not believe them. 10. It has been observed in an American case cited at page 330 of Sarkar’s Law of Evidence, Edn. 5 that no general rule can be laid down in respect of unfinished testimony. If it is substantially complete and the witness is prevented by sickness or death or other causes mentioned in section 33 of the Evidence Act from finishing his testimony, whether viva voce or by deposition, it ought not to be rejected entirely, but submitted to the jury with such observations as the particular circumstances may require. But if not so far advanced as to be substantially complete, it must be rejected. 11. Adverting to the preset case, it is noticeable that after quite lengthy and extensive cross-examination stretching over a long period of time, as submitted at the Bar in view of the absence of the petitioners as well as their learned counsel, thus showing no such anxiety to cross-examine any more, the recording of P.W.3 had been closed. So for this the petitioners have to thank themselves or their learned counsel for not coming to cross-examine further on the adjourned date when P.W.3 was present. So for this the petitioners have to thank themselves or their learned counsel for not coming to cross-examine further on the adjourned date when P.W.3 was present. The court is not bound to wait for any length of time and thus waste public time if the party or his learned counsel do not turn up in court at the right moment. After that the question of cross-examination at least cannot be taken as a matter of right. Be that as it may, in the instant case, further opportunity had been so provided as is seen from the record, on a subsequent move in that regard. In my considered view, the death of the witness having taken place thereafter and after cross-examination of P.W.3, on seven more dates, the petitioners in this case can be said to have made extensive and substantial cross-examination. The opportunity to exercise the right appears to have been amply provided. They cannot take the court into ride that they would have been so allowed till they like until then when they would have gone to say ‘No Further,’ wholly, at their pleasure. The right cannot be stretched to that extent as unfettered. 12. The provision of section 138 of the Evidence Act declaring the principle confers the valuable right upon the party to cross-examine a witness examined by the opposite party. The exercise of the right however is the desire of the adversary. So the right is depending upon his desire to exercise it, where the adversary does not desire to cross-examine the witness, it cannot be said that the right of the cross-examination has been denied or that the statement is not complete for want of cross-examination. The scope of that provision of Section 138 of the Evidence Act is enlarged by the section 146 of the Evidence Act by permitting a party to put the question to the witness during the cross-examination to test his veracity. The object is to impeach accuracy, credibility and weight of evidence. But then again, it is depending upon the desire of a party to exercise the right to cross-examine. When the opportunity to cross-examine a witness was granted and cross-examination does not take place; there can be no complaint for denial of such right even though valuable. The object is to impeach accuracy, credibility and weight of evidence. But then again, it is depending upon the desire of a party to exercise the right to cross-examine. When the opportunity to cross-examine a witness was granted and cross-examination does not take place; there can be no complaint for denial of such right even though valuable. Where the opportunity to cross-examine a witness is granted and cross-examination did take place to some extent but is not completed and is deferred to a later date on the request of the party so cross-examining; then that party on whose behalf witness was examined as well as the trial court cannot be saddled with the responsibility for the cross-examination remaining incomplete in any subsequent eventuality coming to happen. More over such a right to cross-examine the witness cannot be exercised at the sweet will, desire or pleasure of the party. So for the denial to provide such an opportunity to exercise the right, the party can claim prejudice and in order to redress that grievance, the court in that event may ignore the evidence of the witness going without any cross-examination and without being tested as to correctness or veracity of his evidence. But that cannot be equated with the situation like this case in hand where for days together; the party has gone to cross-examine the witness when the issue remains only one and then on a fine morning remaining absent where after coming again to cross-examine being so permitted, in the meantime the witness dies. 13. It is pertinent at this juncture further to take note of the provision contained in Order 17, Rule 1 of the Code of Civil Procedure which in my considered opinion is of great relevance in the contextual facts and the objection raised. In the trial of a suit, as provided in proviso (e) to sub rule 2 of rule 1 of Order 17, where a witness is present in court but a party or his pleader is not present or the party or his pleader being present is not ready to examine or cross-examine the witness, the court is empowered to exercise the discretion even in recording his statement and dispense with the evidence-in-chief or cross-examination of the witness as the case may be, by the party or his pleader not present or ready as aforesaid. So in that situation said statement remaining on record cannot be so taken to be of no evidentiary value. After this exercise of discretion, if the court thereafter allows the party to examine-in-chief or cross-examine the witness as the case may be and the party for some reasons beyond his control or the witness for any such reason is not in a position to depose either on account of his death or otherwise, the party who has later on had permitted to examine-in-chief or cross-examine as the case may be certainly is not permitted in law to take advantage in urging that whatever statement of the witness has been so recorded by the court would stand expunged and eschewed from consideration for its evidentiary value to be judged and considered accordingly. If this is so taken, then the provision as aforesaid would be rendered nugatory and such a view would stand to frustrate in that eventuality. Further it would elbow the object behind the provision so empowering the court to act in that way in said eventuality, into winds when the provision has been engraftment in the court to meet the challenges and hurdles and prevent the abuse of law. The position at the same time is well settled that merely upon failure of a party to cross-examine the witness will not always amount to acceptance of testimony of the said witness. For example, the story when the witness tells is itself of an incredible or romancing character, the facts and circumstances narrated by the witness are inherently incredible. Failure to cross-examine the witness on a particular aspect as stated in the evidence in-chief does not thus necessarily amount to acceptance of his testimony on that score and the party can urge for its non-acceptance and non-reliance by pointing out that its inherently incredible or by critically getting it testing with other evidence on record etc. as unacceptable and unreliable. 14. The matter in hand being thoroughly examined in the touch stone of the above settled law with the aforesaid discussion, my considered view remains that the evidence of P.W.3 is not inadmissible simply because of his death when the cross-examination was continuing having traversed for fourteen sittings followed by recording of twenty three paragraphs by holding to be incomplete. 14. The matter in hand being thoroughly examined in the touch stone of the above settled law with the aforesaid discussion, my considered view remains that the evidence of P.W.3 is not inadmissible simply because of his death when the cross-examination was continuing having traversed for fourteen sittings followed by recording of twenty three paragraphs by holding to be incomplete. However, the value to be attached to it is a matter primarily for the Court after considering the contention raised by the parties and testing it with other evidence on record and upon analysis of the same which the trial court in its order has hinted. Thus for repelling the move made by the petitioner by filing the application to expunge/eschew the evidence of P.W.3 from consideration in the suit by treating it as incomplete evidence and the prayer to that effect having not been accepted, the trial court can neither be said to have acted beyond the bounds of its authority nor it is noticed that by such order there has occasioned miscarriage of justice. 15. In the result, the writ application stands dismissed. Viewing the age of the suit, the trial court is directed to proceed with the suit with expediency for its early disposal in accordance with the law, preferably within a period of eight months being computed with effect from the date of appearance of the parties. In order to hasten the process, the petitioner as also the opposite parties no. 6 and 7 who have addressed the court in this proceeding through their learned counsel are directed to appear before the trial court on 20.04.2017 to receive further instructions.