The Delhi High Court has reaffirmed that re-examination has to be done rarely in civil cases and it cannot be used to fill the lacunae in the evidence.
The single-judge bench of Justice Amit Bansal observed that in civil cases, re-examination can only be permitted rarely as civil proceedings are adversarial in nature as opposed to criminal cases, which are inquisitorial in nature.
Facts of the Case:
The present suit was filed seeking to, inter alia, injunct the defendants/occupants from unlawfully entering any part of the first floor including the balcony of certain premises. Issues were framed in the suit and a Local Commissioner was appointed to record evidence of the parties. An initial sum of Rs.1,00,000/- was fixed as the fees to be paid to the Local Commissioner, which was to be borne by the plaintiff.
The counsel for the defendant made a request to re-examine DW-1, with regard to the questions where the witness has replied YES or NO only and the explanation for reaching at the truth and for the proper adjudication of the issues in question are necessary to be asked and replied for a fair conclusion. He placed reliance on Section 138 of the Evidence Act, 1872 and Rammi Alias Rameshwar Vs. State of Madhya Pradesh, 1999 Latest Caselaw 358 SC to contend that the witness has replied only in ‘yes’ or ‘no’, and he is entitled to re-examine the said witness to get a proper explanation from the witness in respect of the questions posed to her.
The request was vehemently opposed by the counsel of the plaintiff.
Observation of the Court:
The Court relied on the case of Simrin Singh v. Amrit Srinivasan and Ors. which held that in the garb of ‘explanation of matters referred to in cross-examination,’ a witness cannot be recalled for re-examination in a routine manner. Further, such re-examination cannot be used to fill in the lacunae in the evidence.
"In the guise of re-examination, the counsel for the defendant cannot ask the witness to give further explanation to the answers given by her. There is no ambiguity in the answers given by the witness that requires explanation through re-examination. In the present case, the witness, who is a law graduate, has consciously chosen to give her answers in ‘yes’ or ‘no’ without giving any explanation in support thereof."
On the contrary, the counsel for the defendant had relied on the case of Rammi Alias Rameshawar v. State of Madhya Pradesh and contended that the witness has replied only in ‘yes’ or ‘no’, and he is entitled to re-examine the said witness to get a proper explanation from the witness in respect of the questions posed to her.
However, the court held that the aforesaid case in not applicable in the present context since it is a civil case. The rationale behind the same is that in civil cases, re-examination can only be permitted rarely as civil proceedings are adversarial in nature as opposed to criminal cases, which are inquisitorial in nature.
"Needless to state that any interpretation in respect of the answers given by the witness can be addressed by the counsels at the time of making submissions. Re-examination cannot be used to give a chance to the witness to undo the statement of the witness made in cross-examination and fill in the lacunae in evidence."
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