Kallettumkara Service Co-Operative Bank v. CKL Nidhi Limited
2022-05-24
A.BADHARUDEEN
body2022
DigiLaw.ai
JUDGMENT : In these original petitions filed under Article 227 of the Constitution of India, the petitioner, who had filed claim petitions, impugns separate orders passed in I.A.No.5 of 2022 in O.S.No.287 of 2018 dated 31.01.2022, I.A.No.6 of 2022 in O.S.No.353 of 2018 and I.A.No.6 of 2022 in O.S.No.354 of 2018 on the file of the Munsiff Court, Chavakkad. 2. Heard the learned counsel for the petitioner as well as the learned counsel for the first respondent/the plaintiff in the suit. No representation for respondents 2 and 3, though notice served on them. 3. Going by the orders impugned, it appears that respective petitions filed by the petitioner in the claim petition seeking permission to put leading questions to the witnesses shown in the list, was allowed by the learned Munsiff by a non-speaking order. The orders impugned in all these petitions is as under; “No counter. Heard. Allowed.” 4. It is submitted by the learned counsel for the petitioner that the court below went wrong in passing such an order, since putting leading questions directly to a witness is not permissible in the eye of law when there is objection by the other side and the procedure for the same is different. Accordingly, the learned counsel for the petitioner seeks interference in separate orders impugned. 5. Opposing this contention, the learned counsel for the first respondent/plaintiff would submit that since the first respondent apprehended that the witnesses in the list, sought to be examined, would not support the case of the plaintiff and in anticipation of the said fact, the plaintiff filed the above petitions to put leading questions during their examination. Therefore, the orders impugned do not require any interference. 6. In view of the rival contentions, the legal questions pose for consideration are; (1) What is a leading question? And when leading questions can be asked? (2) What is the procedure to be followed for asking leading questions, if putting leading questions objected by the adverse party? (3) What is the provision in the Evidence Act dealing with putting leading questions by the party to a witness who calls the witness? (4) Which provision in the Evidence Act enables the party who calls a witness to cross-examine his own witness?
(3) What is the provision in the Evidence Act dealing with putting leading questions by the party to a witness who calls the witness? (4) Which provision in the Evidence Act enables the party who calls a witness to cross-examine his own witness? (5) Can a party in a civil suit request the Court for permission to cross-examine the witness called by him, as provided under Section 154 of the Evidence Act? 7. In order to answer the above queries, reference to the relevant provisions of the Evidence Act is necessary. Section 135 of the Evidence Act provides that the order in which witnesses are to be produced and examined. It is provided that production and examination of witnesses shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the Court. 8. Order 18 of Code of Civil Procedure deals with the procedure of hearing of suits and examination of witnesses. As per Order 18 Rule 1, the plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin. Thus, normally, the right to begin examination of the witnesses is that of the plaintiff or the petitioner, as the case may be, subject to the condition stipulated in Order 18 Rule 1. 9. Examination of witnesses generally includes three stages as provided under Section 137 of the Evidence Act. Examination-in-chief or chief-examination is examination of a witness by the party who calls him. Cross-examination means examination of a witness by the adverse party and re-examination means examination of a witness by the party who called him subsequent to cross-examination. 10. Thus, it is clear that when a party summons or produces witness/witnesses, the said party shall examine the witness in chief and the adverse party has to cross-examine the witness/witnesses. 11. Coming to the definition of leading questions, Section 141 of the Evidence Act is relevant. Under Section 141, any question suggesting the answer which the person putting it wishes or expects to receive, is called a leading question. 12.
11. Coming to the definition of leading questions, Section 141 of the Evidence Act is relevant. Under Section 141, any question suggesting the answer which the person putting it wishes or expects to receive, is called a leading question. 12. Section 142 of the Evidence Act deals with the situation when leading questions must not be asked and it is provided that leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in a reexamination, except with the permission of the Court. It has been provided further that the Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved. Thus, it is clear that the leading questions must not be asked normally except in the context covered by Section 142 of the Evidence Act. At the same time, Section 142 carves out an exception thereby, leading questions can be put with the permission of the Court. But, the same is not a general permission throughout the examination of the witnesses and it can be in relation to certain questions which are necessary, for which, specific permission of the Court shall be obtained during the course of examination of the witnesses. No doubt, such permission can be sought orally and not in writing. 13. Section 143 provides that the leading questions may be asked in cross-examination. 14. In the case on hand, apprehending hostility of the witnesses, the plaintiff sought permission of the Court to put leading questions. Here, admittedly, the plaintiff filed petition to call the witnesses and therefore, the right to examine the witnesses in chief is that of the plaintiff. 15. Section 154 of the Evidence Act deals with situation when the Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. Here, even before the witnesses on the box, the court below granted permission to put leading questions. I do not think that such a procedure is correct.
Here, even before the witnesses on the box, the court below granted permission to put leading questions. I do not think that such a procedure is correct. The right of a party who calls the witnesses, to put leading questions would come into play, under Section 142 of the Evidence Act and the right of a party who calls the witnesses to cross-examine the witnesses is provided under Section 154 of the Evidence Act, and the said situation will arise only when the witness is on the box and during examination-in-chief. Thus, it appears that, if the plaintiff herein in the present case is having apprehension or otherwise, in the matter of evidence to be given by the witness, he shall wait till the time for examination of the witnesses and if a situation arises to invoke the permission of the Court provided under Section 142 or under Section 154 of the Evidence Act, the same can be resorted to. 16. Another relevant point is; can a party in a civil suit request the Court for permission to cross-examine the witness called by him, as provided under Section 154 of the Evidence Act? This legal position has been settled by a decision of this Court reported in [ 2001 (1) KLT 776 ], Thankamani v. Prabhakaran and subsequently followed in [ 2008 (2) KHC 486 ], Ramraj N. and Another v. Madhu and Others. Therefore, the said course of action is permissible in civil cases as well. Here, the court below permitted the plaintiff to put leading questions even before the witnesses on the box and before start of their examination and the said procedure is not permitted under law and therefore, the separate orders impugned herein found to be illegal and the same stand set aside. Accordingly, these original petitions stand allowed. It is made clear that, when during examination of the witnesses, if a situation arises to seek the permission of the Court provided under Section 142 or under Section 154 of the Evidence Act would arise, the petitioner can very well invoke the same in accordance with law.