Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 683 (HP)

Dinesh Kumar v. Vipan Kumar

2017-06-19

AJAY MOHAN GOEL

body2017
JUDGMENT : Ajay Mohan Goel, J. 1. By way of this petition, the petitioner has challenged order, dated 3rd February 2017, passed by the learned Civil Judge (Junior Division), Barsar, District Hamirpur (H.P.) in Civil Suit No. 82 of 2012, titled as Dinesh Kumar vs. Vipan Kumar and Others, vide which the learned Trial Court has rejected the application filed by the present petitioner under Section 138 of the Indian Evidence Act, whereby the petitioner had prayed for reexamination of PW-1, namely Shri Chander Kant, and PW4, namely Shri Ram Dayal. 2. I have heard learned counsel for the parties. 3. A perusal of the record appended with the petition demonstrates that the application under Section 138 of the Indian Evidence Act was filed by the present petitioner on 20th April, 2016. Further perusal of the record demonstrates that the statement of PW-1, Shri Chander Kant, was recorded before the learned Trial Court on 14th January, 2015, whereas the statement of PW-4, Shri Ram Dayal, was recorded on 13th May, 2015. Their cross-examinations were also conducted on the same dates and apparently, no request was made for the reexamination of these witnesses on the said dates. 4. As I have already mentioned above, the application under Section 138 of the Indian Evidence Act for reexamination of these two witnesses was filed on 20th February, 2016. A perusal of the averments made therein demonstrates that the reason as to why their reexamination has been sought by the petitioner was that as the said witnesses, in the course of their cross-examination, had admitted the fact that no payment pertaining to the agreement in issue was made in their presence, it was necessary to explain the facts qua the payment of consideration amount and to clear and clarify the ambiguity. There is no explanation given in the application as to why these witnesses were not reexamined on the respective dates of their examination itself and further why the application was filed at such a belated stage. 5. Be that as it may, Section 138 of the Indian Evidence Act contemplates that the witnesses shall be first examined-in-chief, then, if the adverse party so desires, cross-examined and then, if the party calling him so desires, reexamined. It is obvious that reexamination has to be directed towards the explanation of those matters, which are referred to in cross-examination. 6. Be that as it may, Section 138 of the Indian Evidence Act contemplates that the witnesses shall be first examined-in-chief, then, if the adverse party so desires, cross-examined and then, if the party calling him so desires, reexamined. It is obvious that reexamination has to be directed towards the explanation of those matters, which are referred to in cross-examination. 6. Now, a perusal of the cross-examination of these two witnesses demonstrates that they have stated that no consideration amount was paid in their presence. Records further demonstrate that the learned counsel for the plaintiff, i.e. the present petitioner, was present at the time when both these witnesses were examined and no request was made for the reexamination of the said witnesses. In these circumstances, filing of an application under Section 138 of the Indian Evidence Act with the prayer that PW-1 and PW-4 be permitted to be reexamined, is nothing, but an abuse of the process of law and an attempt not only to delay the matter, but also probably to fill up the lacunae. 7. In my considered view, the intent and content of Section 138 of the Indian Evidence Act is not for the said purpose. This provision cannot be allowed to be used by a party either to prolong the matter or to fill up the lacunae in its case. The right of reexamination conferred upon a party has to be exercised after the cross-examination of a witness takes place and it is not as if after a slumber, once a party realizes that a witness has probably not deposed what it wanted the witness to depose, that it can move an application under Section 138 of the Indian Evidence Act calling upon the Court to allow it to reexamine the witness in order to fill up the lacunae. 8. Therefore, in view of the above discussion, as there is neither any merit in the present petition nor, in my considered view, there is any infirmity with the order passed by the learned Trial Court, the present petition is dismissed. Miscellaneous applications, if any, are also disposed of accordingly. No order as to costs.