This revision has been preferred by the revisionist against the order dated 13.08.2012 passed by learned Judge, Small Causes Court/Additional District Judge (Court No.7), Unnao in SCC suit no.06 of 2007, by which application filed by the revisionist/defendant for cross-examination of a witness has been rejected.
Learned counsel for the opposite party has put in appearance.
I have heard both learned counsel appearing on behalf of the parties and have gone through the records.
A very brief question is involved in this revision.
In small cause case no.06 of 2007, both the parties have filed their affidavits, in evidence. During the course of cross-examination, defendant's witness Kamlesh (DW-2) resiled with the deposition made by him in his affidavit when he was cross-examined on 19.05.2012. The revisionist/defendant moved an application for declaring him as hostile on 03.07.2012 and prayed for cross-examining his own witness, which has been rejected by the learned trial Court on the ground that application was not moved on 19.05.2012 when the said witness resiled from his deposition made in the affidavit and dit was moved at a belated stage.
At the outset, it may be mentioned that this revision is the outcome of improper application of procedure as prescribed for small causes case, by the learned trial Court.
Order XVIII, Rule 13 of the Code of Civil Procedure says :
"In cases in which an appeal is not allowed, it shall not be necessary to take down or dictate or record the evidence of the witnesses at length; but the Judge, as the examination of each witness proceeds, shall make in writing, or dictate directly on the typewriter, or cause to be mechanically recorded, a memorandum of the substance of what the witness deposes, and such memorandum shall be signed by the Judge or otherwise authenticated, and shall form part of the record."
As it is evident from the provision as mentioned above, it was not, at all, necessary for the learned trial Judge to take down or dictate or record the evidence of the witness at length, but he proceeded on in a mechanical manner, unmindful of the requirement of law, the discrepancy has occurred and the parties have approached this Court. This revision would have been avoided, if the learned trial Judge would have acted in the manner as required by law.
Coming to the second leg of the dispute it may be pointed out that the terms "hostile", "adverse" or "unfavourable" witnesses are alien to the Indian Evidence Act. The terms "hostile witness", "adverse witness", "unfavourable witness", "unwilling witness" are all terms of English Law. The rule of not permitting a party calling the witness to cross examine are relaxed under the common law by evolving the terms "hostile witness and unfavourable witness". Under the common law a hostile witness is described as one who is not desirous of telling the truth at the instance of the party calling him and a unfavourable witness is one called by a party to prove a particular fact in issue or relevant to the issue who fails to prove such fact, or proves the opposite test. In India the right to cross-examine the witnesses by the party calling him is governed by the provisions of the Indian Evidence Act, 1872. Section 142 requires that leading questions cannot be put to the witness in examination-in-chief or in re-examination except with the permission of the court. The Court can, however, permit leading question as to the matters which are introductory or undisputed or which have, in its opinion, already been sufficiently proved. Section 154 authorises the court in its discretion to permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party. The courts are, therefore, under a legal obligation to exercise the discretion vesting in them in a judicious manner by proper application of mind and keeping in view the attending circumstances.
The permission for cross-examination in terms of Section 154 of the Evidence Act, cannot and should not be granted, at the mere asking of the party calling the witness. The discretion conferred by Section 154 on the court is unqualified and untrammelled, and is apart from any question of 'hostility'. It is to be liberally exercised whenever the court from the witnesses's demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does not amount to an adjudication by the court as to the veracity of the witness.
The law on the point has been settled as far back as in 1922 in Baikuntha Nath Vs. Prasannamoyi, AIR 1922 PC, 409.
This authority still holds good and has been relied upon by Hon'ble Apex Court in Gura Singh Vs. State of Rajasthan, 2000 (8) Supreme 402. In Dahyabhai Chhaganbhai Thakkar Vs. State of Gujrat, AIR 1964 (SC), 1563, the Hon'ble Apex Court has held :
"To confine the operation of Section 154 of the Evidence Act to a particular stage in the examination of a witness is to read words in the section which are not there. We cannot also agree with the High court that if a party calling a witness is permitted to put such questions to the witness after he has been cross-examined by the adverse party, the adverse party will not have any opportunity to further cross-examine the witness on the answers elicited by putting such questions. In such an event the court certainly, in exercise of its discretion, will permit the adverse party to cross-examine the witness on the answers elicited by such questions. The court, therefore, can permit a person, who calls a witness, to put questions to him which might be put in the cross-examination at any stage of the examination of the witness, provided it takes care to give an opportunity to the accused to cross examine him on the answers elicited which do not find place in the examination-in-chief."
In State of Bihar Vs. Lalu Prasad alias Lalu Prasad Yadav AIR 2002 SC, 2432, the Hon'ble Apex Court has held :
"It would have been a different position if the witness stuck to his version, he was expected to say by the party who called the witness, in the examination-in-chief, but he showed propensity to favour the adverse party only in cross-examination. In such case, the party who called him has a legitimate right to put cross questions to the witness. But if he resiled from his expected stand even in chief-examination, the permission to put cross-questions should have been sought then."
In view of law, as discussed above, the learned trial Judge could have kept in mind that when, in a given case like this, there are two contradictory statements, on oath, of a particular person, the party who is examining him has got a natural right to get the veracity of the two stands of a particular person tested through cross-examination; that is the only recognized mode of procedure, the delay in making an application cannot be treated to be above justice, as justice is paramount, which deserves to be given its due at all stages of the proceeding, including interlocutory or otherwise.
Having heard learned counsel for the parties and in view of the observations made above, the impugned order deserves to be set aside.
In the result, the revision is allowed and the impugned order dated 13.08.2012 passed by learned Judge, Small Causes Court/Additional District Judge (Court No.7), Unnao is set aside. The learned trial Judge is directed to pass fresh order after affording opportunity of hearing to the parties, in accordance with law, expeditiously.
Order Date :- 8.10.2012.
Rks.