Smt Kusum Gupta vs Harinarayan Gupta
2022 Latest Caselaw 13651 MP

                                                                        1
                                                     IN THE HIGH COURT OF MADHYA PRADESH
                                                                  AT JABALPUR
                                                                       BEFORE
                                                         HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                              ON THE 17th OF OCTOBER, 2022

                                                          MISC. PETITION No. 6594 of 2019

                                                BETWEEN:-
                                        1.      SMT KUSUM GUPTA W/O LATE RAMANAND
                                                GUPTA, AGED ABOUT 34 YEARS, WARD NO 34
                                                MAIN ROAD CHOTI BAZAR, CHHINDWARA
                                                (MADHYA PRADESH)

                                        2.      SMT. RENU ALIAS CHANDA W/O VIJAY HALWAI,
                                                AGED ABOUT 40 YEARS, R/O 1235, YASHWANT
                                                CHOWK, KHATIK GALI PARISAR KOPARGAON,
                                                DISTT AHMEDNAGAR (MAHARASHTRA)

                                                                                                  .....PETITIONERS
                                                (BY SHRI JAIDEEP SIRPURKAR - ADVOCATE)

                                                AND
                                        1.      HARINARAYAN GUPTA S/O LATE RAMANAND
                                                GUPTA, AGED ABOUT 34 YEARS, WARD NO 34
                                                MAIN ROAD CHOTI BAZAR CHHINDWARA
                                                DISTRICT (MADHYA PRADESH)

                                        2.      SMT. KIRAN KHANDELWAL S/O LATE DINESH
                                                KHANDELWAL, AGED ABOUT 56 YEARS, R/O
                                                PARASIA ROAD, CHHINDWARA TAHSIL AND
                                                DISTRICT CHHINDWARA (MADHYA PRADESH)

                                        3.      STATE OF MADHYA PRADESH THROUGH
                                                C O L L E C T O R DISTRICT CHHINDWARA
                                                (MADHYA PRADESH)

                                                                                                .....RESPONDENTS

(MS. SANJNA SAHNI - ADVOCATE FOR RESPONDENTS NO. 1 AND 2 AND MS. SWATI ASEEM GEORGE - ADVOCATE FOR THE RESPONDENT NO.3)

This petition coming on for admission this day, th e court passed the Signature Not Verified SAN following:

Digitally signed by ASHWANI PRAJAPATI Date: 2022.10.17 19:32:41 IST ORDER

This Miscellaneous Petition is filed being aggrieved of order dated 13.09.2019 (Annx.P/6), passed by learned II Civil Judge, Class-I, Chhindwara (M.P.), in R.C.S.No.5A/2014, allowing an application under Section 154 of the Evidence Act, permitting the plaintiffs to cross-examine their own witness who has turned hostile during cross-examination.

2. It is submitted that Hon'ble Supreme Court in Sri Rabindra Kumar Dey Vs. State of Orissa [(1976) 4 SCC 233], in para 10 has held that:-

"a party will not normally be allowed to cross-examine its own witness and declare the same hostile, unless the court is satisfied that the statement of the witness exhibits an element of hostility or that he has resiled from a material statement which he made before an earlier authority or where the court is satisfied that the witness is not speaking the truth and it may be necessary to cross-examine him to get out the truth."

3. It is pointed out that the ratio of the law laid down in the case of Sri Rabindra Kumar Dey (supra), is that there must be some material to show that the witness is not speaking the truth or has exhibited an element of hostility to the party for whom he is deposing. He submitted that there is no such circumstance in the present case and, therefore, the impugned order be set aside.

4. Ms. Sanjna Sahni, learned counsel for respondents No. 1 and 2, in her turn, submits that witness after supporting the case of the plaintiffs in examination in chief, turned hostile as it is admitted position as explained in the application under Section 154 of Evidence Act, that he was subjected to coercive action.

Signature Not Verified SAN This fact is not disputed by the learned counsel for the petitioners. Even

Digitally signed by ASHWANI PRAJAPATI otherwise, ratio of law laid down in Sri Rabindra Kumar Dey (supra), is that Date: 2022.10.17 19:32:41 IST

cross-examination may be permitted to bring out the truth. Same is the ratio of law laid down by Supreme Court in Dahyabhai Chhaganbhai Thakker Vs. State of Gujrat (1964 SC 1563), wherein, it is held as under :-

"A clever witness in his examination-in-chief faithfully conforms to what he stated earlier to the police or in the committing court, but in the cross- examination, introduces statements in a subtle way contradicting in effect what he stated in the examination-in-chief. If his design is obvious, we do not see why the court cannot, during the course of his cross-examination, permit the person calling him as a witness to put questions to him which might be put in cross-examination by the adverse party."

5. Ms. Sanjna Sahni has also placed reliance on the judgment of Privy Council in Baikuntha Nath Chattoraj Vs. Prasannamoyi Debya and others, reported in MANU/PR/0133/1922, equal to AIR 1922PC409, where in para 13, it is held that :

"Section 154 of the Evidence Act, provides that the court may in its discretion permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party"

6. Taking these facts into consideration, exercise of discretion by the learned trial Court cannot be faulted with, specially in light of the law laid down by

Supreme Court in Sri Rabindra Kumar Dey (supra), wherein reliance is placed on earlier judgment in case of Dahyabhai Chhaganbhai Thakker (supra). As there is no illegality in exercise of the discretion, petition fails and is dismissed.

Signature Not Verified SAN

Digitally signed by ASHWANI PRAJAPATI Date: 2022.10.17 19:32:41 IST

(VIVEK AGARWAL) JUDGE A.Praj.

Signature Not Verified SAN

Digitally signed by ASHWANI PRAJAPATI Date: 2022.10.17 19:32:41 IST