Baldev Krishan Kalra (Decd.) ... vs Mangal Sain Kalra
2010 Latest Caselaw 4449 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                   Judgment Reserved on: 16th September, 2010
%                 Judgment Delivered on: 22nd September, 2010

+ RSA No.57/2002, CM No.170/2002 & Cr.M.A.No.13263/2008

BALDEV KRISHAN KALRA (DECD.)
THROUGH L.Rs.                          ...........Appellant
              Through: Mr.Dinesh Kumar with Mr. Vikas
                       Mishra, Advocates.

             Versus
MANGAL SAIN KALRA                             ..........Respondent
             Through:          Mr.Nalin Jain & Mr.Amit Sherawat,
                               Advocates.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers 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

INDERMEET KAUR, J.

RSA No.57/2002 & CM No.170/2002 (u/O 41 R 5 r/w S.151 CPC)

1. This is an unfortunate dispute between two brothers. The

plaintiff is Sh. Mangal Sain Kalra, the elder brother of the

defendant, Sh. Baldev Krishan Kalra. The plaintiff filed a suit for

possession. It was alleged that the plaintiff is the sole owner of the

shop bearing no. 57 situated at Khurshid Market, Sadar Bazar,

Delhi-6. He had purchased it vide registered sale deed dated

31.05.1980 for a sum of Rs. 27,000/-.

2. The plaintiff had permitted the defendant to occupy a portion

of this shop as a licensee. This was in lieu of the fact that the

defendant after having migrated from Jammu had four minor

children; the defendant was extremely hard up; the parents of the

parties were worried and at the request of their parents, the

plaintiff had agreed to this arrangement in order that the

defendant could settle in life. Defendant however started

competing with the plaintiff; plaintiff requested the defendant to

vacate the suit property but to no avail. Notice dated 06.9.1982

was served upon the defendant. Another notice dated 01.9.1983

was served upon him to which reply dated 09.9.1983 had been

given by the defendant. Intention of the defendant had become

mala fide; in this reply, he claimed ownership of the suit property.

For identification purposes, the portion in occupation of the

defendant was given number as 57-A while the portion in

possession of the plaintiff was shown as shop bearing no.57;

defendant now claimed ownership over property no.57-A.

Defendant being a licensee only is liable to be evicted from the suit

property.

3. Defendant had contested the suit. It was stated that he is the

owner of the suit property. In Para 6 of his written statement, it

was stated that a document dated 27.9.1971 had got signed by the

defendant in the presence of the plaintiff; it was a sham and

frivolous document; the actual fact being that the defendant was

the owner of the portion in his occupancy i.e. shop no. 57-A over

which the plaintiff had no interest or right.

4. On 23.5.1985 the trial judge had framed six issues which

inter alia read as follows:

"1. Whether the suit is not properly valued for the purpose of court fees and jurisdiction?

2. Whether the suit is not maintainable?

3. Whether the suit is barred by time?

4. Whether the plaintiffs are owner of the suit premises?

5. Whether the plaintiffs are entitled for possession?

6. Relief."

Thereafter, an additional issue was framed on 28.08.1991

which reads as follows:

1. "Whether Late Shri. Baldev Krishan Kalra had become owner of the suit property by possessory title? If so its effect?" OPD.

5. Trial judge vide its judgment and decree dated 14.10.1997

dismissed the suit of the plaintiff. The defendant was given a

protective cover of the family settlement Ex. DW1/1 dated

27.9.1971; it was held that this family arrangement between the

two brothers had given a legal right to the defendant in the suit

property; plaintiff was not entitled to possession of the suit

property.

6. In appeal, the first appellate court while judgment and

decree dated 5/03/2002 reversed the findings of the trial judge.

The suit of the plaintiff was decreed. Ex.DW 1/1 was held to be a

license executed between the parties wherein the plaintiff had

given permissive user to the defendant to occupy the property at

his will; it did not vest any right or title in the defendant.

7. On 25.03.2010, the appeal was admitted and the following

substantial question of law was formulated:

"Whether the first Appellate Court correctly interpreted the document Ex. DW 1/1 while decreeing the suit for possession in favour of the plaintiff/respondent?"

8. On behalf of the appellant, arguments had been addressed at

length. It is submitted that the testimony of the PW1 i.e. the

statement of the plaintiff, Sh.Mangal Sain, cannot be read in

evidence as he has been examined-in-chief on 11.7.1989 on which

date his cross- examination had been deferred; on 07.4.1993, the

evidence of the plaintiff stood closed. It is pointed out that PW-1

had not been cross-examined and in the absence of which his

evidence is no evidence in the eye of law. It has however not been

disputed that PW-1 had been recalled for his rebuttal evidence on

11.4.1994; on that date, his testimony was confined only to the

evidence in rebuttal and the cross- examination effected of PW 1 on

16.11.1994 was also a cross-examination in terms of the rebuttal

evidence adduced by PW 1 in his chief. It is submitted that the

evidence of PW1 recorded on 11.7.1989 on which no cross-

examination has been effected has to be ignored. For this

proposition, reliance has been placed upon AIR 9 SC 1141 Gopal

Saran Vs. Satyanarayan as also another judgment of this court

reported in 2001 Cri. L. J. 1288 Sh. Ripen Kumar Vs. Department of

Customs. It is pointed out that evidence as defined in Section 3 of

the Evidence Act means "the examination-in-chief and cross -

examination; where witness has not been cross-examined, his

statement cannot be termed as an evidence and cannot be read in

evidence."

9. It is submitted that the sale deed dated 31.5.1980 Ex.PW 1/B

relied upon by the plaintiff was tendered by PW 1 only in his

rebuttal evidence; it was incumbent upon the plaintiff to have

adduced this document in his examination-in-chief as a specific

issue i.e. issue no. 4 had been framed by the trial court as to

whether the plaintiff is the owner of the suit property or not; PW 1,

however, chose to produce this document only in his rebuttal

evidence. It has to be ignored under Order 18 Rule 3 of the Code

of Civil Procedure. Attention has been drawn to this document

which has been executed between Sh.Vijay Kumar Kalra, special

attorney of Smt. Shanti Devi in favour of the plaintiff. The column

of the vendor has been signed by the stenographer of the Court of

Sh.M.K. Chawla, the then Additional District Judge; the

consideration mentioned in the document is Rs. 27,000/-; it is dated

31.5.1980. It is submitted that this sale deed clearly recites that

on 07.10.1966, Smt.Shanti Devi, had agreed to sell this property to

the vendee for Rs. 27,000/-; this document prepared in 1980, had

valued this property for the same amount; the market value has

been ignored. The sale deed, even otherwise, is a sham document

as the property was a lease hold property and without having been

converted into free hold, the same could not have been sold. It was

incumbent upon the parties to have disclosed the true market

value; this document has to be ignored; it cannot be read in

evidence.

10. Counsel for the appellant has placed reliance upon a

judgment of the Supreme Court reported in (2010) 4 SCC 350

State of Haryana and Others Vs. Manoj Kumar to substantiate this

submission that where a sale deed had been executed pursuant to

a decree on a suit for specific performance and no objection had

been raised on the under valuation of the sale deed, the Supreme

Court had held that the High Court had erred is not interfering

with this question of the under valuation; this was held to be a

reason why the Government was losing out on revenue; guidelines

had been laid down by the Apex Court in this regard. It is

submitted that in the instant case as well it was only after a suit for

specific performance had been filed by the plaintiff that this sale

deed dated 31.5.1980 had been executed in his favour; on the

analogy and ratio of the judgment cited supra, this sale deed which

was grossly undervalued cannot be read in evidence; further the

sale deed merely having been given an exhibit mark i.e.Ex.PW 1/A

is no proof of the document. Attention has been drawn to the

plaint. Para 6 refers to the consideration of Rs.27,000/-. Para 18

has described the value of suit property for the purposes of court

fee and jurisdiction at Rs.13,500/-; there is not a whisper of the

market value in this entire plaint. Attention has also been drawn to

the version of the DW 2, Sh. Arvind Kalra, wherein he has deposed

that the value of the shop would be between Rs.1,00,000.- to

Rs.1,50,000/- . It is submitted that this version of DW-2 is not

rebutted and nor challenged in cross-examination. The suit

property having been under-valued, the court below had erred in

concluding that such a suit was maintainable.

11. Even otherwise, this sale deed was contrary to the family

settlement Ex. DW 1/1 executed between the two brothers i.e. the

plaintiff and the defendant which was much prior in time i.e. on

27.9.1971. Attention has been drawn to the family settlement Ex.

DW 1/1 dated 27.9.1971. It is stated that the suit filed on

11.5.1984 on a family settlement which was entered into between

the parties more than 13 years ago is otherwise time-barred. This

document further shows that it was not a license; at best it was a

pre-emptive right given to the plaintiff that in case the property is

likely to be sold, plaintiff will have the first right to purchase it and

defendant will pay him a sum of Rs.25,000/-; thereafter both the

parties will be given equal sharing in the upgradation of the value

of the property.

12. A suit for possession was not maintainable; for a declaration

of his status; it was incumbent upon the plaintiff to have filed a suit

under Section 34 of the Specific Relief Act. For this proposition,

reliance has been placed upon AIR 2008 SC 2033 Anathula

Sudhakar Vs. P. Buchi Reddy, where it had been held that where

complicated questions of title are involved, the same can be

examined only in a title suit for declaration and consequential

relief.

Ex.DW 1/1 had created an irrevocable license in his favour.

Reliance has been placed upon Section 60(a) of the Indian

Easement Act, 1882; it is submitted that this license had been

coupled with a transfer of property in favour of the defendant. For

this proposition, reliance has been placed upon a judgment of the

Supreme Court reported in AIR 1927 Bombay 240 Janardan

Mahadeo Bhase and Ors Vs. Ramchandra Mahadeo Bhase and Ors

as also a judgment of the Bench of Nagpur, High Court reported in

AIR (38) 1851 Nagpur, Rahimbax Vs. Samsu and Ors. It is

submitted that in the instant case as well the license granted to the

defendant had created an interest in the property; it was

irrevocable.

13. Learned counsel for the appellant has placed reliance upon

several judgments of the Apex Court reported in AIR 2000 SC 426

Ishwar Dass Jain Vs. Sohan Lal, (2001) 5 SCC 46 Surendra Kumar

Vs. Nathulal and Anr. and (2000) 3 SCC 668 Rohini Prasad and Ors

Vs. Kasturchand and Anr. to substantiate his submissions that the

arguments now advanced before this court are all matters which

call for an interference by the second appellate court; this power is

granted to this court under Section 100 of the Code of Civil

Procedure. The Supreme Court has reiterated time and again that

misreading of the evidence by the first appellate court will lead to a

miscarriage of justice; if findings are based on no evidence they are

perverse for which interference is called for by the second

appellate court. Attention has been drawn by the learned counsel

for the appellant to the impugned judgment wherein it has been

recorded that the learned trial court did not give any separate

evidence on the additional issue framed by it; it is submitted that

this is a clear perversity. For this proposition reliance has been

placed upon a judgment reported in (2006) 5 SCC 545 Hero Vinoth

(Monor) Vs. Seshammal . It is stated that under Order 41 Rule 23

and Rule 23 A of Code of Civil Procedure, this Court has ample

power to remand the case back to the trial court which has

committed the perversity; fresh findings of facts are required to be

recorded in the instant case.

14. Arguments have been countered by the learned counsel for

the respondent. It is submitted that this is a court sitting in

second appeal. It is only substantial questions of law which are

required to be answered by the court and which had already been

formulated. The submission of learned counsel for the appellant

that the additional issue framed on 28.8.1991 had not been decided

by the trial court for which the matter is to be remanded back to

the trial judge is a submission without any force. It is pointed out

that this is not a substantial question of law which has to be

answered by this court; further this was never raised before the

first appellate court; no cross appeal had also been preferred by

the appellant to challenge the findings of the trial court. Even

otherwise, the first appellate court has in elaborate detail given its

findings on the additional issue. The submission that the sale deed

was inadequately stamped is also an argument without any merit.

Attention has been drawn to para 6 of the sale deed which states

that it is exempt from stamp duty. It is pointed out that the suit

has been properly valued for the purposes of court fee and

jurisdiction and this has to be gathered from the averments which

are made in the plaint. The defendant is himself confused about

his stand; the initial written statement had stated that the so-called

family arrangement dated 27.9.1971 is a sham document; in the

amended written statement the plea of ownership had been set up

by the defendant pursuant to which the additional issue on the

possessory title of the defendant had been framed. It is submitted

that this document Ex.DW-1/1 dated 27.9.1971 was only a license

which had been granted by the plaintiff in favour of the defendant

which is not an inheritable right. For this proposition reliance has

been placed upon AIR 2002 SC 2051 The Corporation of Calicut vs.

K.Sreenivasan. Provisions of Section 60 (a) of the Indian Easement

Act are inapplicable. Appellant has failed to show their

applicability; there was no transfer of property by the plaintiff in

favour of the defendant in terms of Ex.DW-1/1. Findings in the

judgment of first appellate court call for no interference. It is

pointed out that the appellant before this court had deliberately

concealed the fact that after the initial discharge of PW-1 he had

been recalled for his examination on 15.7.1994 and thereafter he

had been cross-examined in detail on 16.11.1994. The appeal is

liable to be dismissed for concealment of material facts. For this

proposition reliance has been placed upon AIR 1994 SC 853

S.P.Chengalvaraya Naidu (dead) by L.Rs. vs. Jagannath (dead) by

L.Rs. & Ors. Findings in the impugned judgment call for no

interference.

15. This court is sitting in second appeal. The substantial

question of law had been formulated by it on 25.3.2010 which has

been aforenoted. This substantial question of law which has to be

answered by this court relates to the interpretation of Ex.DW-1/1;

contention of the respondent is that this is a license whereas the

contention of the appellant is not clear to this court even at this

stage. In fact, no arguments (as aforenoted) have been submitted

by the appellant on the interpretation of this document. The other

extraneous arguments which the appellant has urged even though

not framed as substantial questions but which do not touch upon

the fact findings given by the two courts below shall be answered

by this court. The second appellate court is empowered to deal

with all such questions which raise a substantial question of law;

its powers are not transgressed and limited only to that question of

law which has been formulated by it. This power is expansive.

16. This court shall first answer the question of law as

formulated by it on 25.3.2010. As aforenoted no argument had

been addressed by the learned counsel for the appellant on the

interpretation of this document. In the first written statement the

defence of the defendant was that the document dated 27.9.1971

(Ex.DW-1/1) is a sham and frivolous document which had been got

signed from him in the presence of the plaintiff. Thereafter with

the permission of the court the written statement was amended.

Additional para 6-A was addeded. In this para the defence of the

defendant was that "vide the document dated 27.9.1971 the

defendant Sh.Baldev Krishan Kalra was irremovable from the

premises and he had legal possession and possessory title to the

same". On the basis of the same document the defendant now

claimed ownership of this shop; his possessory title having matured

into an ownership; further defence being that the document is not

a license.

17. Pursuant to this amended written statement an additional

issue was framed on 28.8.1991 relating to "the ownership of the

defendant by way of possessory title". It is apparent from a

reading of the amended written statement that the stand of the

defendant is not clear. In one breath he has condemned the

document dated 27.9.1971; in the very next breath he seeks shelter

under the said document claiming possessory title and ownership

emanating therefrom.

18. Initially six issues had been framed; thereafter the additional

issue had been framed. While disposing of Issue no.5 the court had

considered the document Ex.DW-1/1 dated 27.9.1971; its contents

had been carefully scrutinized as is evident from the decision of the

trial judge on this issue. After a detailed discussion on the various

clauses of the said document the trial judge held as follows:

".......On the basis of above discussion, I am of the considered opinion that the deceased defendant Sh.B.K.Kalra was not a licencee of the plaintiff in the year 1971, when the document Ex.DW1/1 was entered into between the plaintiff and the other family members including the deceased defendant. Rather, it appears to be a sort of family settlement between the parties and until and unless the plaintiff proves to the satisfaction of this court that the Late Sh.B.K.Kalra (and after his death his LRs) made breach of any of the terms of Ex.DW-1/1, the plaintiff is not entitled to take back the possession of the portion which was earlier in the occupation of Late Sh.B.K.Kalra and after his death it is in the occupation of his LRs. To my opinion, the plaintiff has failed to prove on record that either the late Sh B.K.Kalra or his LRs have violated any of the terms and conditions of the document Ex.DW-1/1 and hence, the plaintiff does not seem to be entitled for possession of disputed portion from the defendants. As discussed above, neither defendant Late Sh.B.K. Kalra nor his LRs after his death seem to be the licencee in the disputed property and hence, their does not arise any question of alleged licence being

terminated by the plaintiff vide notice dated 1.9.83 as alleged by the plaintiff. In view of the above discussion, I am of the considered opinion, that the plaintiff is not entitled for possession of the portion in occupation of the LRs of Late defendant Sh.B.K.Kalra. Hence, issue no.5 is decided against the plaintiff and in favour of the defendants.

19. Suit of the plaintiff was dismissed. Admittedly, no separate

finding was given on the additional issue but the perusal of the

judgment shows that the additional issue had been taken care of

while deciding Issue no.5.

20. This was a grievance and a ground of appeal before the first

appellate court. The first appellate court vide its judgment and

decree had set aside the findings of the trial judge. The relevant

extract of which reads as under:

"7.The document is not a contract although it is signed by the two brothers Mangal Sain Kalra and Baldev Kishan Kalra. The document describes its as a "solemn declaration a pledge and confirmation". The document records that Baldev Krishan suffered losses in his business in Jammu and that in order to provide Baldev Krishan another chance in making a fortune his parents sold their house at Jammu and provided capital for his new business. The document acknowledges that Mangal Sain is in possession of shop no.57. The document also acknowledges that Mangal Sain plaintiff allowed Baldev Krishan defendant a space in shop no.57 on the bidding of their mother Kartar Devi and their father Gian Chand Kalra. The document further acknowledge that Baldev Krishan will not be liable to pay any charges but he will not be permitted to transfer possession to anyone except Mangal Sain who continued to be the rightful owner of the shop. The document further acknowledge that if Baldev Krishan abandons his trade and restores possession to Mangal Sain, Mangal Sain would give a sum of Rs.25000/- to Baldev Krishan. Baldev Krishan takes a pledge that he will improve his business and his earnings and would not cause any further worries to the family.

8. It is clear that the document does not create any right of tenancy in the shop. Baldev Krishan enters the property on account mere grace of Mangal Sain. The document further shows that Baldev Krishan did not enter into any adverse possession. Baldev Krishan did not acquire any right in shop no.57 which was akin to ownership. The right of Baldev Krishan created by the document is nothing but a privilege of a licencee.

9. Since the possession of Baldev Krishan and that of his legal heirs was never adverse to the interest of the real owner the possession can never mature into any kind of title whatever may be the length of such possession be. The additional issue framed therefore gets answered accordingly."

21. Ex.DW-1/1 had been delved into in an in-depth detail by the

first appellate court. The trial court had also scrutinized this

document while disposing of Issue no.5 on the basis of which it had

arrived at a finding that this was a family arrangement. This fact

finding calls for no interference especially in view of the contrary

stand which has been taken by the defendant right from the

inception of the trial up to today. His defence is not clear to this

court even as on date. Earlier the defendant had discarded this

document in toto describing it as sham and frivolous. In the

amended written statement he had taken shelter under this

document; he had described it as a sort of family arrangement

giving him possessory title which possessory title had matured into

ownership. Before this court a third contrary plea had been set up

that Ex.DW-1/1 has created an irrevocable license in his favour for

which reliance has been placed upon the provisions of Section 60

(a) of the Indian Easement Act.

Section 60 (a) of the Indian Easement Act reads as follows:

"60. License when revocable--A license may be revoked by the grantor, unless--

(a) it is coupled with a transfer of property and such transfer is in force;

(b) ....."

To attract this statutory provision in favour of the appellant

the license must be coupled with a transfer of property. No such

evidence is forthcoming from a perusal of Ex.DW-1/1. In fact,

Ex.DW-1/1 has categorically recited that the defendant Bal Krishan

Kalra is not permitted or allowed to transfer the possession of this

property to anybody except to its original owner namely Mangal

Sain Kalra. The question of transfer of property in favour of the

defendant does not arise. Section 60 (a) of the Indian Easement

Act has no application; so also the judgments of Janardan Mahadeo

Bhase (supra) and Rahimbax (supra).

22. The plaintiff has claimed title to the suit property on the

basis of the sale deed Ex.PW-1/B dated 31.5.1980. This had been

specifically averred by him in para 1 of the plaint. In his

examination in chief dated 11.7.1989 PW-1 had deposed that he is

the owner of the suit property by virtue of a duly registered sale

deed. Thereafter in his rebuttal evidence on the additional issue

recorded on 15.7.1994 he had proved this sale deed as Ex.PW-1/B.

23. In AIR 2001 SC 2532 State of Haryana Vs. Ram Singh, it has

been held that a registered agreement to sell is a public document

under Section 74(2) read with Section 77 of the Indian Evidence

Act; no formal proof of the said document is required. There is

even otherwise no dispute to this document. It was an admitted

document. There is no denial of the same in the corresponding

para of the written statement. There is also no bar under any

provision of law which states that a document initially not

produced cannot be proved at the time when the witness has been

recalled; such a document being a public document is also

admissible without formal proof. As such this objection of learned

counsel for the appellant that Ex.PW-1/B which had not been

proved in the initial version of PW-1 and had been proved only at

the time of his rebuttal evidence i.e. on 15.7.1994 is an argument

which is neither here nor there. It takes him nowhere.

24. This sale deed Ex.PW-1/B was executed on 31.5.1980. It

clarifies that this sale deed was exempt from stamp duty; stamp

duty was not required to be paid. This submission of the learned

counsel for the appellant also falls flat.

25. The present suit was a suit for possession. The valuation of

the suit property has been detailed in para 8. It had been valued at

Rs.13,500/- i.e. for the portion in possession of the defendant on

which the requisite court fee had been paid. Issue no.1 had been

specifically framed on this count. The burden of proving this issue

was upon the defendant. Trial judge had noted that no evidence

had been produced by the defendant to establish this submission.

Issue had been decided in favour of the plaintiff. Before the first

appellate court this argument was not agitated and neither does it

find mention in the grounds of appeal filed before the first

appellate court. Be that as it may, this question has to be

answered by necessarily looking at the averments made in the

plaint which clearly state that the portion in possession of the

plaintiff is valued at Rs.13,500/-. This was in terms of the sale

figure mentioned of the property i.e. a sum of Rs.27000/- which had

been paid by the vendee to the vendor; half portion of this property

was with the plaintiff on which the requisite fee had been paid.

The submission of the learned counsel for the appellant that this

sale figure had been arrived at in the year 1966 and the sale deed

having been executed on 31.5.1980 i.e. after a span of 14 years

should have been taken into account the inflated market value is

clearly a misconceived and erroneous argument; the sale deed has

categorically recited that the vendor had agreed to sell the

property for the sum of Rs.27000/-; it was for this reason that this

figure found mention in Ex.PW-1/B. The actual transaction entered

into between the same parties cannot be challenged by presuming

an inflated value. This argument also is noted only to be rejected.

Judgment of State of Haryana (supra) has no application.

26. The oral and documentary evidence on record had

established the title of the plaintiff in the suit property by virtue of

Ex.PW-1/B. He was the owner of the suit property i.e. Shop No.57.

The additional contention raised by the learned counsel for the

appellant (at this stage) that there is confusion in the shop

numbers and the defendant is occupying Shop No.57-A which is

distinct and different from the suit property which is Shop No.57 is

again a last ditch effort to confuse the court. In para 1 of the plaint

the plaintiff has categorically stated that he is the absolute owner

of Shop No.57. In para 15 it has been averred that the portion in

possession of the defendant in terms of a permissive license

granted by the plaintiff to the defendant is Shop No.57-A; this

portion which is in possession of the defendant for the purposes of

identification has been given No.57-A. In the corresponding para of

the written statement this position has not been denied; it has been

admitted that for the purposes of identification the portion in

possession of the defendant has been marked as 57-A. It is not as if

this is a municipal number which has been given by any statutory

body. The No.57-A had only been accorded by the plaintiff to

distinguish the area of the shop which was in possession of the

defendant.

27. In the grounds of appeal before this court it has been averred

that PW-1 had not appeared for his cross-examination and as such

his evidence is not legally admissible under Section 137 of the

Indian Evidence Act. It has correctly been pointed out by learned

counsel for the respondent that the appellant has concealed from

this court that PW-1 had in fact been recalled for his examination

on 16.11.1994 and had been cross-examined in detail by the

learned counsel for the respondent.

28. Section 137 of the Indian Evidence Act describes an

examination-in-chief, cross examination and re-examination; these

are the three stages of the examination of a witness. Section 138

states that the examination and cross-examination must relate to

relevant facts, but the cross-examination need not be confined to

the facts to which the witness has testified in his examination-in-

chief.

29. Perusal of the record shows that the evidence of the plaintiff

was closed on 7.4.1993 and evidence of the defendant was closed

on 11.4.1994; on the same date the matter had been fixed for

rebuttal evidence of the plaintiff on the additional issue. On this

additional issue the examination-in-chief of PW-1 was recorded on

15.7.1994. He had been cross-examined on 16.11.1994. This was

not a re-examination of the witness but an examination afresh of

PW-1 on the additional issue. It is relevant to point out that the

additional issue had been framed as way back as on 28.8.1991 at

which time the evidence of both the parties was in progress.

Thereafter, after the closure of the evidence of both the parties i.e.

of the plaintiff and the defendant, the matter was again listed for

rebuttal evidence of the plaintiff. This rebuttal evidence was on

the additional issue which had been framed. Order 18 Rule 3 of

the Code of Civil Procedure provides that in cases where onus of

some of the issues is on the party which is to open the case while

that of certain other issues on the other party, it is open to the

party which is to open its case to give its entire evidence or to give

evidence only in respect of issues of which onus was on him while

reserving his right to produce evidence on issue of which ones was

on the other side. That is the evidence which is commonly

described as evidence in rebuttal. As already noted the cross-

examination of a witness under the statutory provision of Section

138 of the Evidence Act is not confined only to the facts to which

the witness has testified in his examination-in-chief; it is much

wider. Nothing prevented the defendant counsel to cross-examine

PW-1 on other scores apart from what he had stated in his

examination-in-chief. In fact, cross examination effected of PW-1

by the defence counsel on 16.11.1994 shows that it was a two page

lengthy cross-examination. Order 18 Rule 3 of the Code is not

attracted.

30. In (1999) 8 SCC 649 Rammi alias Rameshwar vs. State of

M.P. on the aspect of a re-examination the Supreme Court held as

follows:

"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."

31. In AIR 1964 Supreme Court 1563 D.C Thakkar Vs. State of

Gujarat, the Supreme Court on the interpretation of the provisions

of Section 137 read with Section 154 of the Indian Evidence Act

had held that a party calling a witness can be put questions in the

nature of cross examination even at the stage of re-examination.

32. This is on the aspect of a re-examination which is much

narrower than an examination of witness who has been recalled in

rebuttal evidence to testify on an additional issue as was so in the

instant case. Nothing prevented the defendant from eliciting

answers to queries which he had in mind. He had in fact done so

as is evident from the cross-examination of PW-1 dated 16.11.1994.

These facts had been concealed by the learned counsel for the

appellant and have been highlighted only by the learned counsel

for the respondent. In the grounds of appeal the impression given

was that PW-1 was not recalled for his cross-examination. In the

judgment of S.P.Chengalvaraya Naidu (supra) it has been

reiterated that the litigant must come to court with clean hands

and in a case of falsehood the litigant can summarily be thrown out

at any stage of the litigation. As such this submission raised by the

learned counsel for the appellant is also without any force.

33. The substantial question of law as formulated on 25.3.2010

has been answered. The other arguments addressed before this

court by learned counsel for the appellant have also been

answered. There is no fault in the findings of the impugned

judgment. There is no merit in the appeal. Appeal as also the

pending application is dismissed.

Cr. M.A.No.13263/2008 (u/S. 340 Cr.P.C.)

34. By this application, the respondent/plaintiff Mangal Sain

Kalra had sought an enquiry against the appellant/defendant under

Section 340 of the Code of Criminal Procedure (Cr.P.C). It has

been averred that false statements have been made by the

appellant; the averments have been mentioned in para 3 of the

application. It is pointed out that the appellant before this Court

has in his body of appeal stated that PW-1 had not appeared for

cross-examination; he had proved documents in his rebuttal

evidence which were beyond the scope of a rebuttal evidence; trial

court record shows that the appellant/defendant was willfully

making false allegation to gain an advantage in his favour.

Purposely for this reason, cross-examination of PW-1 has also not

been filed along with the present appeal; he is liable to be

prosecuted under Section 193 of the Indian Penal Code (IPC).

Reply has opposed the application. It is pointed out that no willful

false statement has been made by the non-applicant neither was he

trying to mislead the Court; no offence has been made out.

Rejoinder has also been perused.

35. Section 340 of the Cr.P.C refers to the procedure to be

followed for cases mentioned in Section 195 i.e. for the prosecution

for contempt of lawful authority of public servants, for offences

against public justice and for offences relating to documents given

in evidence. This is contained in Section 195 of the Cr.P.C. The

contention of the learned counsel for the applicant is that the non-

applicant has committed an offence under Section 191/193 of the

Indian Penal Code (IPC). Section 193 of the IPC speaks of

punishment for false evidence. The intention to give false evidence

is the prima ingredient of the offence; in the absence of which, the

offence is not made out. This intention/mens rea is clearly missing

in this case. The appellant himself has detailed the various dates

on which the applicant had averred that PW-1 had appeared for his

examination-in-chief, his cross-examination and rebuttal evidence.

The intent to give false evidence is absent; the application not

happily worded but the necessary mens rea being absent; no

offence is made out under Section 193 of the IPC. Application is

without any merit. It is dismissed.

INDERMEET KAUR, J.

SEPTEMBER 22, 2010/ss/rb/nandan