Madras High Court

Sachithanantham vs Krishnan on 18 January, 2021

                                                                                  C.R.P.(P.D).No.1786 of 2015

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 18.01.2021

                                                          CORAM:

                              THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

                                                 C.R.P.(P.D).No.1786 of 2015
                                                    and M.P.No.1 of 2015
                     1.Sachithanantham
                     2.Sridhar
                     3.Anandan                                                          ...Petitioners
                                                               Vs
                     1.Krishnan
                     2.Kasi                                                             ...Respondents

                     Prayer: Civil Revision Petition filed under Article 227 of the Constitution
                     of India to set aside the fair order and decreetal order dated 16.02.2015
                     made in I.A.No.108 of 2015 in O.S.No.160 of 2012 on the file of the
                     District Munsif Court, Palacode.
                                             For Petitioners        : Mr.R.Rajaramani

                                             For Respondents        : Mr.A.Ilayaperumal for R1
                                                                      for R2- NDW

                                                          ORDER

This Civil Revision Petition is directed as against the fair order

and decreetal order dated 16.02.2015 made in I.A.No.108 of 2015 in

O.S.No.160 of 2012 on the file of the District Munsif Court, Palacode,

https://www.mhc.tn.gov.in/judis/ C.R.P.(P.D).No.1786 of 2015

thereby dismissing the petition filed by the petitioners herein to recall the

D.W.2 for cross examination.

2.The petitioners are defendants 11 to 13 in the suit filed by the

1st respondent herein. The suit is for partition. During trial, the petitioners

have examined D.W's.1 and 2. The D.W.2 deposed in chief that the suit

property was partitioned and he knows about the shares allotted to the

parties and its measurements by the sale deed dated 18.07.2011. But, during

cross examination he deposed that he does not know about the sale deed

which was produced before the trial Court and also he does not know to

read and write. Since the D.W.2 turned hostile, the petitioners filed a

petition to recall the D.W.2 to declare him as hostile and permit them to

cross examine D.W.2, under Section 154 of the Evidence Act.

3.The learned counsel for the petitioners would submit that the

D.W.2 was examined by the petitioners herein. During cross examination

he turned hostile and deposed that he does not know about the sale deed and

also he does not know to read and write. Unfortunately, the petitioners

failed to cross examine him at the time itself, since he turned hostile.

Therefore, he filed the petition to recall the D.W.2 to cross examine him in

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I.A.No.108 of 2015. The Court below dismissed the petition only for the

reason that immediately after examination of D.W.2, he was not declared as

hostile and failed to seek permission to cross examine him. Therefore, the

trial Court dismissed the same. He further submitted that at any stage, the

witness can be recalled for cross examination and that too when the witness

turned hostile under Section 154 of the Indian Evidence Act, the party can

be permitted to cross examine the witness. In support of his contention he

relied upon the case of S.Bhaskaran and another Vs. R.Loganathan

(deceased) and anohter reported in 2014 (1) CTC 440 and the order passed

by this Court in C.R.P.(PD)(MD).No.460 of 2014 dated 06.07.2015.

4.Per contra the learned counsel for the 1st respondent would

submit that the petitioners failed to cross examine on the date of

examination of D.W.2, when he turned hostile. After cross examination of

P.W's.3 and 4 only to fill up the lacunae, the petitioners filed the petition

that too only to recall the D.W.2. First of all, the petitioners ought to have

filed the petition seeking permission to declare the D.W.2 as hostile witness

and thereafter he has to file a petition for cross examination. In support of

his contention he relied upon the case of K.K.Velusamy Vs. N.Palanisamy

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reported in 2011 (3) CTC 422.

5.Heard the learned counsel for the petitioners and the learned

counsel for the 1st respondent and also perused the materials available on

record.

6.The petitioners are defendants 11 to 13 in the suit filed by the

1st respondent herein for partition. During the trial, the petitioners have

examined D.W.2, in support of their case. While cross examination of

D.W.2, he turned hostile. Thereafter the petitioners have cross examined

D.W.3 and 4 and after a period of 2 ½ months they filed a petition to recall

D.W.2 for the reason that he turned hostile and as such under Section 155 of

the Indian Evidence Act, they sought for cross examination of D.W.2.

7.The trial Court dismissed the same only for the reason that the

petitioners did not file the petition immediately after examination of D.W.2.

In this regard, the learned counsel for the petitioners relied upon the

Judgment of this Court reported in 2014 (1) CTC 440 in the case of

S.Bhaskaran and another Vs. R.Loganathan and others. Relevant

paragraphs are extracted hereunder:-

"18.But, under certain circumstances, it may

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require the party, who has called the witness also to cross examine his witness. To meet such a situation, Section 154 has been inserted in the Evidence Act. The common illustration is, when the witness turned hostile, resiled from his statement given already in favour of the party, who had called him to depose or when the witness is not supporting the case of the party, who had called him or such a witness became inimical to him.

19.What is important is that the truth of the matter has to be extracted/placed before the Court. This is also done through the oral evidence of the witness before the Court. Arriving at the truth of the matter is the essential function of the Court. Truth of the matter may be unravelled at any stage of the case. Such a function cannot be curtailed by any stage or period.

20.In Rabindra Kumar Vs. State of Orissa, AIR 1977 SC 170, with regard to Section 154 of the Evidence Act, the Hon'ble Apex Court held as under:

"Before proceeding further we might like to state the law on the subject at this stage. Section 154 of the Evidence Act is the only provision under which a party calling its own witnesses may claim permission of the Court to cross-examine them. The Section runs thus:

"The Court may, in its discretion permit the

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person, who calls a witness to put any question to him which might be put in cross-examination by the adverse party"

The Section confers a judicial discretion on the Court to permit cross-examination and does not contain any conditions or principles, which may govern the exercise of such discretion. It is however, well settled that the discretion, must be judiciously and properly exercised int he interest of justice. The law on the subject is well settled that a party will not normally be allowed to cross-examine its own witness and declare the same hostile, unless the Court 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 the 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. One of the glaring instances in which this Court sustained the order of the Court in allowing cross- examination was where the witness resiles from a very material statement regarding the manner in which the accused committed the offence."

This Court has held that the truth of the matter may be unraveled at any

stage of the case. Further, claim under Section 154 of the Indian Evidence

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Act, is the only provision to claim permission of the Court to cross examine

its own witness.

8.In the case on hand, though the petitioner sought for recalling of

D.W.2 for the reason that the D.W.2 turned hostile and necessarily the

petitioners ought to have cross examine him. Further, Section 154 of the

Indian Evidence Act confers a judicial discretion on the Court to permit

cross examination the witness and does not contain any conditions or

principles, which may govern the exercise of such discretion.

9.The learned counsel for the petitioners also relied upon the

Judgment of this Court held in C.R.P.(MD)No.460 of 2014 dated

06.07.2015 and the relevant paragraphs are extracted hereunder:-

"8.The provisions of the Evidence Act would show that the chief-examination of the witness would be conducted by the party, at whose instance, the witness was summoned. Thereafter, he would be cross-examined by the adverse party. Section 154 of the Evidence Act is an exception to the general principle that cross-examination would be conducted only by the adverse party. Section 154 of the Evidence Act therefore gives a discretion to the Trial Court. While exercising discretion, the Court must

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be convinced that the evidence tendered by the witness examined by a party on his side shows an element of hostility or that the witness has resiled from his earlier statement in material particulars. The Court is, therefore, given a wide discretion to decide the question of hostility. THE PRECEDENT:

9.The Supreme Court in Sat Paul V. Delhi Administration [AIR 1976 SC 294] held that grant of permission to treat a witness as hostile is expedient to extract the truth and to do justice. The Supreme Court observed:

"The discretion conferred by S.154 on the Court is unqualified and untrammelled, and is apart from any question of hostility. It is to be liberally exercised whenever the Court from the witness's demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does not amount to an adjudication by the court as to the veracity of the witness. Therefore, in the order granting such permission, it is preferable to avoid the use of such expressions, such as "declared" "hostile", "declared unfavrable" the

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significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that had so long vexed the English Courts."

10.The Supreme Court in Dahyabhai v. State of Gujaraj [AIR 1964 SC 1563]observed that to confine a portion of Section 154 of the Evidence Act to a particular stage in the examination of a witness is to read words in the section which are not there. The Supreme Court further observed that the Court can permit a person, who calls a witness, to put questions to him which might be put in the cross-examination at any stage of the examination of witness, provided it takes care to give an opportunity to the accused to cross-examine him on the answers elicited which do not find place in the examination in chief."

The above Judgment is squarely applicable to the case on hand. In the

present case on hand, though the petitioners filed a petition to recall the

D.W.2 for cross examination, after a period of 2 ½ months, it cannot be said

that the petition was filed to fill up the lacunae. On perusal of evidence of

D.W.2, it revealed that he turned hostile. Therefore, the petitioners ought to

have requested to invoke Section 154 of Evidence Act, when the witness is

in the witness box.

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10.The trial Court closed the witness and as such the petitioners

necessarily have to file a petition to recall the D.W.2 for cross examination.

The trial court should be given the discretion to entertain the application

even after closing the evidence, in case proper and sufficient reasons are