S. Narinder Singh Sachdeva vs Mrs. Dimple Sachdeva
2015 Latest Caselaw 4524 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     CS(OS) No. 1292/2005

%                                                        30th June, 2015

S. NARINDER SINGH SACHDEVA                    ..... Plaintiff
                   Through: Mr. Rajiv Tyagi, Advocate.

                           versus

MRS. DIMPLE SACHDEVA                                     ..... Defendant
                  Through:               None.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

I.A. No.12651/2015 (exemption)

1.           Exemption allowed subject to just exceptions.

             I.A. stands disposed of.

O.A. No.235/2015 and I.A. No.12650/2015 (stay)

2.           This chamber appeal has been preferred by the plaintiff in the

suit impugning the order of the Joint Registrar dated 16.4.2015.           The

appellant/plaintiff impugns the order dated 16.4.2015 which has allowed

further cross-examination of the witness PW-1 after re-examination was

done by the plaintiff of the witness PW-1. Plaintiff/appellant contends that

CS(OS) No.1292/2005                                              Page 1 of 6
 the defendant/respondent be not permitted to put questions to the witness

PW-1 and which will be in the nature of cross-examination after re-

examination of the witness PW-1.

3. Counsel for the plaintiff/appellant has argued that though under

Section 138 of the Evidence Act, 1872 after re-examination is done further

questions can be put by the other side to the witness, however, this power to

put further questions by the defendant is wrongly being exercised in the facts

of the present case. Reliance is placed by the counsel for the

appellant/plaintiff on paras 16 to 18 of the judgment of the Supreme Court in

the case of Rammi Alias Rameshwar Vs. State of M.P. (1999) 8 SCC 649

and which paras read as under:-

"16. The very purpose of re-examination is to explain matters which have been brought down in cross-examination. Section 138 of the Evidence Act outlines the amplitude of re-examination. It reads thus:

"138. * * * Direction of re-examination. - The re-examination shall be directed to the explanation of matters referred to in cross- examination; and if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter."

17. 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. The Public Prosecutor should formulate his questions for that purpose. Explanation may be required either when ambiguity remains regarding any answer elicited during cross-examination or even otherwise. If the Public Prosecutor feels that certain answers require more elucidation from the witness he has the freedom and the right to put such questions as he deems necessary for that purpose, subject of course to the control of the Court in accordance with the other provisions. But the Court cannot direct him to confine his questions to ambiguities alone which arose in cross-examination.

18. Even if the Public Prosecutor feels that new matters should be elicited from the witness he can do so, in which case the only requirement is that he must secure permission of the Court. If the Court thinks that such new matters are necessary for proving any material fact, courts must be liberal in granting permission to put necessary questions."

4. The argument urged on behalf of the appellant/plaintiff is

misconceived because nowhere in the aforesaid paras 16 to 18 it is stated

that further cross-examination of a witness is not permitted after re-

examination of the witness. In fact, the language of Section 138 of the

Evidence Act, 1872 itself specifically states that with the permission of

court, a witness can be further cross-examined. If re-examination under

Section 138 of the Evidence Act, 1872 has to be liberally allowed as per the

ratio of Rammi Alias Rameshwar's case (supra) cited by the plaintiff, then,

the further cross-examination also will have to be liberally allowed applying

the same ratio and logic.

5. In my opinion, what will apply in the facts of the present case

for dismissing this O.A. is the ratio of the judgment of the Supreme Court in

the case of Bipin Shantilal Panchal Vs. State of Gujarat and Another

(2001) 3 SCC 1 and which judgment of Division Bench of three Judges of

the Supreme Court states that courts should not prevent bringing of evidence

at the stage of trial because in the evidence which is brought in there is some

part of evidence which is not admissible or irrelevant, then, the court at the

stage of final arguments can always exclude such evidence but disallowing

bringing in evidence will result in that evidence not being available and then

delay being caused to the case when that evidence will be subsequently

directed to be brought in. The relevant paras of the judgment of the

Supreme Court in the case of Bipin Shantilal Panchal (supra) are paras 13

to 15 and which read as under:-

"13. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fall out of the above practice is this: Suppose the trial court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or revisional court, when the same question is re- canvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial court. In such a situation the higher court may have to send the

case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-moulded to give way for better substitutes which would help acceleration of trial proceedings.

14. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the judge or magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.)

15. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is re-canvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses."

(underlining added)

6. The aforesaid paras of the judgment of the Supreme Court in

the case of Bipin Shantilal Panchal (supra), and particularly the

emphasized portions, show that the appellant/plaintiff is disentitled to scuttle

the evidence which is being introduced in the present case by cross-

examination of the witness PW-1. In fact, the need for further cross-

examination has arisen because re-examination has been allowed to the

appellant/plaintiff of the witness PW-1. At the stage of final arguments, it is

always open to the appellant/plaintiff to argue the irrelevancy or

inadmissibility of any evidence which is introduced in the further cross-

examination of the witness PW-1. After all it is not that by allowing further

cross-examination that the witness is forced to agree to the questions which

will be put in cross-examination and the witness has complete liberty to

answer the questions in the way he so thinks fit, and thus, there is no grave

prejudice to the plaintiff.

7. In view of the above, the appeal being without any force and an

endeavour to unnecessary scuttle the evidence which is being led in the case,

is dismissed with costs of Rs.25,000/- to be deposited with the Delhi High

Court Legal Services Authority within a period of four weeks from today.

JUNE 30, 2015                                 VALMIKI J. MEHTA, J.
Ne