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2019 DIGILAW 1245 (RAJ)

Govindlal Soni v. Ambalal Laxmi Lal Ji

2019-04-25

PUSHPENDRA SINGH BHATI

body2019
JUDGMENT Pushpendra Singh Bhati, J. - The petitioner has preferred this writ petition claiming the following reliefs: "1. That the impugned order dated 03.04.2017 (Annex-10) passed by learned Additional District Court No.4, Udaipur in Civil Original 389/2012 allowing the application under Section 137 and 138 of the Indian Evidence Act, may kindly be quashed and set aside. 2. Any other appropriate order which this Hon'ble Court consider just and proper in the facts and circumstances of the present case, may kindly be passed in favour of the appellant." 2. The petitioner filed a civil suit No.389/2012 before the learned District Court, Udaipur for partition of property and permanent injunction against the non-petitioners. 3. The bone of contention in the matter is that during pending of the suit, the respondents opposed partition on count of a Will in their favour. The petitioner objected the veracity of the said Will. DW-4 Anandi Lal, during his cross examination, has deposed that at the time when he attested the Will, the signature of testator, Laxmi Lal was not there. The defendant-respondent filed an application under Sections 137 & 138 of the Indian Evidence Act for re-examination of DW-4 Anandi Lal claiming that on a conjoint reading of examination and cross examination, it is clear DW-4 Anandi Lal wanted to depose that the signatures of testator were made in front of him. The said application was allowed vide the impugned order passed by the learned court below. 4. Learned counsel for the petitioner has made a submission that once during the cross examination an opportunity for disproving the Will was availed by the defendant, then it was not open for him to seek re-examination to undo the advantage, which had accrued to the plaintiffs. 5. Learned counsel for the petitioner has relied upon the judgment rendered by Hon'ble Delhi High Court in Simrin Singh Vs. Amrit Srinivasan & Anr. [CS(OS) 2258/2010] on 23.01.2018, the relevant portion of which reads as under: "5. PW-3 is a witness to prove the document claimed to be the Will and on going through his deposition, I am of the view that what the plaintiff is seeking to do by way of reexamination is to take away the advantage if any which has accrued to the defendants no.1&2 from the cross-examination which has already been conducted. PW-3 is a witness to prove the document claimed to be the Will and on going through his deposition, I am of the view that what the plaintiff is seeking to do by way of reexamination is to take away the advantage if any which has accrued to the defendants no.1&2 from the cross-examination which has already been conducted. The scope of re-examination, in my view, is certainly not to undo the cross-examination done. 6. As far as the contention, of the witness having got confused owing to his advance age, is concerned, it is not as if the witness at the time of re- examination would be any younger. It will be open to the plaintiff to, at the stage of final arguments, refer to the said aspect and to also show law in support of the objection taken as to the mode in which the document was put by the cross-examining counsel to the witness. 9. Though Section 138 supra permits re-examination 'to explain the matters referred to in cross-examination' and permits further cross- examination of the witness thereafter, only if the Court has in re-examination permitted new matters to be introduced (else, after reexamination, there is no right of further cross-examination) but in my opinion, the words 'explain matters referred to in cross-examination' cannot be interpreted so widely as to permit in routine, re-examination of witness and in the name of re- examination, undo what has been achieved/revealed in cross-examination. In my view, re-examination, particularly in civil cases, has to be permitted rarely. I say so because civil proceedings are essentially adversarial, as distinct from adjudication of criminality, which, with the passage of time, is more inquisitorial than adversarial, with the prosecution as well as the Judge being in search of truth, rather than letting a finding on criminality being returned for failure and defaults of the accused." 6. Learned counsel for the respondents however, submitted that the scope of Sections 137 and 138 of Indian Evidence Act is very wide and the Hon'ble Apex Court had laid down the precedent law that the very purpose of re-examination is to explain the matters which have been brought down in cross examination. 7. Learned counsel for the respondents further submitted that it is an erroneous impression that re-examination should be confined to clarification of ambiguities which have been brought down in the cross examination. 8. 7. Learned counsel for the respondents further submitted that it is an erroneous impression that re-examination should be confined to clarification of ambiguities which have been brought down in the cross examination. 8. Learned counsel for the respondents has also relied upon the judgment rendered by Hon'ble Apex Court in Rammi alias Rameshwar Vs. State of M.P., (1999) AIR SC 3544 , the relevant portion of which reads as under: "16. The very purpose of re-examination is to explain matters which have been brought down in cross-examination. Section 138 of the Evidence Act outlines the amplitude of re-examination. It reads thus: "Direction of re-examination.- The reexamination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is, by permission of the Court, introduced in reexamination, the adverse party may further cross-examine upon that matter." 17. There is an erroneous impression that re-examination should be confined to clarification of ambiguities which have been brought down in cross-examination. No doubt, ambiguities can be resolved through re-examination. But that is not the only function of the re-examiner. If the party who called the witness feels that explanation is required for any matter referred to in cross-examination he has the liberty to put any question in re-examination to get the explanation. The Public Prosecutor should formulate his questions for that purpose. Explanation may be required either when ambiguity remains regarding any answer elicited during cross-examination or even otherwise. If the Public Prosecutor feels that certain answers require more elucidation from the witness he has the freedom and the right to put such questions as he deems necessary for that purpose, subject of course to the control of the court in accordance with the other provisions. But the court cannot direct him to confine his questions to ambiguities alone which arose in cross-examination. 18. Even if the Public Prosecutor feels that new matters should be elicited from the witness he can do so, in which case the only requirement is that he must secure permission of the court. If the Court thinks that such new matters are necessary for proving any material fact, courts must be liberal in granting permission to put necessary questions." 9. If the Court thinks that such new matters are necessary for proving any material fact, courts must be liberal in granting permission to put necessary questions." 9. After hearing learned counsel for the parties as well as perusing the record of the case, this Court is of the opinion that the powers under Section 137 & 138 of the Indian Evidence Act are very wide and the Hon'ble Apex Court through the aforementioned precedent law has kept the door wide open for the scope of re-examination of the witness, and particularly, when DW-4 Anandi Lal had mentioned in his examination-in-chief that he was supporting the Will and that, mere slight variations from the cross-examination, that had occurred due to old age does not mean that the opportunity of re-examination of witness is not available. 10. This Court thus, does not find any illegality in the impugned order. Hence, no interference is called in the present petition and the same is accordingly dismissed. However, the learned court below shall make all endeavour to decide the suit in an expeditious manner, strictly in accordance with law. Stay Petition No.5186/2017 also stands dismissed accordingly.