Smt. Kailash Kumari vs Smt. Rajni Monga And Ors.
2010 Latest Caselaw 3888 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      CS(OS) 2721/1997

                                     Date of Decision: August 20, 2010

       SMT. KAILASH KUMARI                                      ..... Plaintiff
                      Through:             Mr. S.P. Mehta, Advocate with
                                           PW4, Mr. Naveen C. Bajaj and
                                           Plaintiff in person.
                       versus

       SMT.RAJNI MONGA AND ORS.                 ..... Defendants
                     Through: Mr. Kirti Uppal and Mr. Abhay
                              Mani Tripathi, Advocates.

%      CORAM:
       HON'BLE MS. JUSTICE ARUNA SURESH

(1)    Whether reporters of local paper may be allowed to see the
       judgment?

(2)    To be referred to the reporter or not?                            Yes

(3)    Whether the judgment should be reported in the Digest?            Yes

                                ORDER

ARUNA SURESH, J.

IA No.4498/2010 (U/s 151 CPC r/w. S.138 of the Indian Evidence Act)

1. Present suit has been filed by the plaintiff seeking cancellation

of gift deed, declaration and permanent injunction against the defendants in

respect of the Property No.D-1/27, Vasant Vihar, New Delhi. After

pleadings were complete and issues were framed, the Court directed

examination of the witnesses on commission and it accordingly appointed

Mr.Shivinder Chopra, Advocate as the Local Commissioner. After cross-

examination of PW-4 Mr.Naveen C.Bajaj was complete, plaintiff sought re-

examination of the witness. Local Commissioner accordingly directed the

plaintiff to approach the Court for such permission. This has resulted into

filing of the instant application for consideration.

2. Plaintiff has sought permission to re-examine PW-4 on

following points of cross-examination:-

1. The date of paralytic attack to PW-4 and his date of departure to

Jammu.

2. The year of registration of General Power of Attorney.

3. Meeting of PW-4 to Smt.Kailash Kumari and Mr.C.S. Manchanda

first time.

4. Signatures of Smt.Kailash Kumari on the correction of Will.

3. Mr.Kirti Uppal, counsel appearing on behalf of defendants has

objected to re-examination of PW-4 on the ground that there is no ambiguity

in the cross-examination of the witness, which necessitates his re-

examination.

4. Mr.S.P.Mehta, counsel appearing on behalf of plaintiff has

submitted that plaintiff had suffered paralytic attack and therefore, he could

not properly comprehend the questions put to him in the cross-examination

and answer them accordingly. He has submitted that re-examination of PW-

4 is being sought as permitted under Section 138 of the Indian Evidence Act

on the questions of cross-examination, which were not the subject matter of

examination-in-chief of PW-4 and General Power of Attorney and Will

executed by the deceased plaintiff. He has asserted that plaintiff has a right

to re-examine the witness on the questions put to him in cross-examination

beyond the subject matter of the examination-in-chief.

5. Mr.Uppal has refuted the submissions made by counsel for the

plaintiff. He has argued that PW-4 is an advocate who is still in practice as

per his own statement and his cross-examination suggests that he was not

mentally affected by the paralytic attack, which he allegedly suffered on 20th

March 2009, though the witness has deposed that he suffered paralytic attack

in 2008. He has submitted that cross-examination of the witness is not

limited to the examination-in-chief and there is no ambiguity in the cross-

examination nor any new facts have been brought on record which warrant

re-examination of the witness. He has urged that the application is without

merits and has been filed with a view to fill in the lacunae in the affidavit

produced on record by the plaintiff, which cannot be permitted by this Court.

6. Section 138 of the Indian Evidence Act gives a right to a party

to re-examine a witness. However, this right is conditional. In every case a

party cannot be allowed to re-examine the witness with a view to fill in the

lacunae in his evidence.

7. Admittedly, PW-4 N.C.Bajaj is a practicing lawyer and is

mentally alert. He has admitted that till date he is engaged in the registration

of documents. Thus, it is clear that he is actively pursuing his profession and

paralytic attack suffered by him in no manner has affected his mental

faculties. Being a lawyer, he is well versed with the procedure, appreciation

and consequences of evidence in the form of his testimony on merits of the

case. Therefore, under these circumstances to say that he was suffering from

a paralytic attack and therefore, could not comprehend the questions, put to

him, in the right perspective while giving his reply or that his reply under the

circumstances was not as per the facts and documents on record, is not

acceptable.

8. As PW-4, in his cross-examination he has deposed that he

suffered paralytic attack in the year 2008. Counsel for the plaintiff has urged

that he needs to re-examine the witness as he has not correctly given the year

of paralytic attack which he suffered. He has placed on record a photocopy

of discharge summary prepared at Khetarapal Nursing Home. This discharge

summary pertains to PW-4 and the date of admission as noted in the

discharge summary is 20th March, 2009 at 3.00 PM. The witness was

discharged on 26th March, 2009 at about 2.00 PM. On the basis of this

document, it is argued that witness had suffered paralytic attack in 2009.

History of the patient as written in the discharge summary is relevant. It

reads:-

"History:- Patient admitted with the C/o Sudden onset of weakness Left side of body after fall on ground. Had CVA in test 2008."

9. Thus, it is clear that N.C.Bajaj suffered his first paralytic attack

in 2008 and the witness, being an intelligent person, had given the year of

paralytic attack as „2008‟ based on his sharp memory. In consonance with

his statement that he suffered a paralytic attack in the year 2008, he has

deposed that he shifted to Jammu in the month of April 2008 and since then

he is residing there. Therefore, I am of the view that no clarification of the

year of witness having suffered paralytic attack is required by way of re-

examination of the witness.

10. The witness has deposed that Smt. Kailash Kumari had got

registered a Power of Attorney in favour of her son, Mr.Hardeep Kumar and

he was a witness to the said Power of Attorney. Mr.Chander Shekhar

Manchanda was the second witness to the said Power of Attorney. He has

deposed that Power of Attorney was registered in the year 1987, when he met

Chander Shekhar Manchanda for the first time. Power of Attorney Ex.PW-

1/B was registered on 21st May, 1997 and it was executed by Smt.Kailash

Kumari on 21st May, 1997 itself. PW-4 Mr.N.C. Bajaj is an attesting witness

to the said Power of Attorney. Under the circumstances, when statement of

the witness is categorical and clear, I do not find the need of any re-

examination of the witness for seeking any clarification or explanation from

him.

11. Witness has deposed that he met Smt.Kailash Kumari for the

first time when she came to him for registration of the Will through

Mr.Mehta. He has emphasized that he remembered almost every person who

had come to him for registration of his documents by name and face and he

remembers his clients even after their work is complete as he maintains

contact with the person for whom he had worked.

12. It is pertinent that PW-4 N.C. Bajaj was previously associated

with Mr.Mehta as his junior and worked with him for few years. He had met

Smt.Kailash Kumari one or two times with Mr. Mehta. Under the

circumstances, I find no reason to permit re-examination of the witness who

has deposed on his sharp memory and also because of his constant contact

with his clients even after their work was complete.

13. PW-4 in his cross-examination has deposed that he did not tell

Smt.Kailash Kumari to counter-sign all the places in the Will where

corrections were made. When asked, he has deposed that it is not in normal

practice that signatures on corrections are necessary. However, he did not

remember names of the persons who had signed the documents.

14. I fail to appreciate, as to how re-examination of the witness has

become necessary. It is pertinent that witness in his cross-examination on

16th March, 2010 has stated that his affidavit was prepared on instructions of

Mr.S.P.Mehta, Advocate. Plaintiff cannot be allowed to fill in the lacunae

in the statement of PW-4 by invoking provisions of Section 138 of the Indian

Evidence Act.

15. Under these facts and circumstances, I find no merit in the

application and the same is accordingly dismissed.

CS(OS) 2721/1997

16. Awaiting proceedings of the Local Commissioner, list on 2nd

December, 2010.

ARUNA SURESH (JUDGE) AUGUST 20, 2010 sb