Telangana High Court

Fazalurrahman Khurram vs Smt.Laxmi Bai on 20 September, 2023

Bench: K. Sarath

                             1
                                                             SK,J
                                               CRP.No.315 of 2023


       THE HON'BLE SRI JUSTICE K.SARATH
     CIVIL REVISION PETITION No.315 of 2023

ORDER:

1. This Civil Revision Petition is filed under Article

227 of the Constitution of India, aggrieved by the order

dated 11.01.2023 passed in I.A.No.875 of 2022 in

I.A.No.231 of 2020 in O.S.No.2542 of 2009 on the file of

IV Additional Senior Civil Judge, Ranga Reddy,

whereunder the petition filed by the

petitioner/defendant, for recall of CW1 for the purpose

of re-examination, was dismissed.

2. Heard the learned Counsel for the petitioner and

the learned Counsel for the respondent.

3. The learned Counsel for the revision petitioner

submits that the respondent/plaintiff filed a suit for

declaration, recovery of possession and perpetual

injunction. Upon the application of the revision

SK,J CRP.No.315 of 2023

petitioner CW1 was examined by the Court below and

called upon him to produce the originals of Exs.B15

and B-18, out of which only B-15 was produced and it

was marked as Ex. C1. During the cross-examination

of CW1 he was confronted with Ex.A-10 as to whether it

belongs to the Society and signed by the then Secretary

and the said document has been disputing by the

petitioner/defendant and since stray evidence has come

in the form of Ex.A-10 at the time of cross-examination

of CW1, which was not part of the statement given by

CW1 when he was examined in chief by the Court and

since there is ambiguity in Ex.A10 to be clarified by

CW1, the petitioner filed petition to recall CW1 but the

same was dismissed by the Court below through

impugned order.

4. The learned Counsel for the revision petitioner

further submitted that the Court below has failed to

SK,J CRP.No.315 of 2023

exercise its jurisdiction when an application was filed

under Section 137 of Evidence Act r/w. Section 151 of

Civil Procedure Code to re-examine CW1. When the

plaintiff has not availed his turn to prove Ex.A-10, the

court below could not have permitted the plaintiff to put

questions on Ex.A-10. The Court below having passed

an order on application filed by the defendant for

production of some documents and the court cannot

permit the plaintiff to put any questions regarding

Ex.A-10. The plaintiff cannot fill up the lacuna of his

case in the evidence of CW1. The entire cross-

examination of CW1 ought to have been confined to the

documents produced by him i.e. Ex.C1 and C2.

5. The learned Counsel for the revision petitioner

further submits that when an official witness was

summoned for a specific purpose, the scope of evidence

is different and the Court below ought not have

SK,J CRP.No.315 of 2023

permitted the plaintiff to put the questions on Ex.A10.

The plaintiff cannot fill-up the lacuna during the

cross-examination of CW1 thereby taking the defendant

by surprise.

6. The learned Counsel for the revision petitioner

further submits that at the end of cross-examination

when the counsel for the petitioner/ defendant wanted

to re-examine CW-1 to clarify ambiguity as the

petitioner has no other alternative except to request the

Court, as the court has failed to overrule the objection

taken during the cross-examination. Under Section 138

of the Evidence Act, the chief examination of a witness

of a party shall be called as chief examination,

cross-examination, by the adverse party. There is

imbibe right for other side to re-examine under the

Evidence Act and the court ought to have passed an

order allowing or rejecting the re-examination by giving

cogent reasons. When the petitioner filed an

SK,J CRP.No.315 of 2023

application, the court ought not to have passed an

order of dismissal stating that the ambiguity cannot be

filled up by undue cross-examination by the defendant

and the said order suffers from jurisdiction error and

requested to allow the Civil Revision Petition by setting

the impugned order.

7. The learned Counsel for the petitioner in support

of his contention relied on the following Judgments:

1. Dahyabhai Chhaganbhai Thakakr Vs. State of Gujarath 1

2. Raami @ Rameshwar Vs. State of Madhya Pradesh 2

8. The learned Counsel for the respondent submits

that the Court below rightly dismissed the application

filed by the petitioner as the witness cannot be allowed

to be re-examined so as to provide an explanation when

the said witness has answered the question 'yes' or 'no'

AIR 1964 SCC 1563

(1999) 8 SCC 649

SK,J CRP.No.315 of 2023

and CW-1 is an educated person, who is a Chartered

Accountant and he has consciously chosen to give

answers. Thus the re-examination cannot be sought

and allowed with the sole object of giving chance to the

witness to undo the effect of statement given earlier

and the lacuna in the evidence cannot be filled up

under the pretext of re-examination and a witness

cannot be called for re-examination in a routine

manner. There is no ambiguity in the answers given by

the witness that requires explanation through re-

examination. Any interpretation in respect of the

answers given by the witness can be addressed by the

counsel at the time of making submissions and there

are no grounds to interfere with the orders passed by

the Court below and requested to dismiss the Civil

Revision Petition.

SK,J CRP.No.315 of 2023

9. The learned Counsel for the respondent in support

his contention placed reliance on the following

Judgments:

1. Veesam Mohan Reddy Vs. Rebba Pedda Agaiah 3

2. Simrin Singh Vs. Amrit Srinivasan 4

3. Capitol Art House (P) Ltd., Vs. Neha Datta 5

10. After hearing both sides and on perusal of the

record, it discloses that the respondent/plaintiff herein

filed suit against the petitioner/defendant for

declaration, recovery of possession and perpetual

injunction. Upon an application made by the revision

petitioner herein, the Court below summoned CW-1 for

production of the documents and he was examined in

chief by the Court and thereafter the counsel for the

petitioner cross-examined CW1 and subsequently the

2008 (2) ALT 329

2018 SCC Online Del 7177

2022 scc On Line Del 1746

SK,J CRP.No.315 of 2023

learned Counsel for the respondent cross-examined

him.

11. Now the grievance of the petitioner is that some

stray evidence has come in the form of Ex.A10 through

CW1 and there is ambiguity with respect to Ex.A-10 to

be clarified through the evidence of CW1 and therefore

filed petition to recall CW1 for the purpose of

re-examination and the said petition was dismissed,

which is impugned in this revision.

12. The Court below in the impugned order held that

the CW1 is a well-educated person and he has

consciously chosen to give answers and under the guise

of re-examination, the petitioner cannot ask CW1 to

give further explanation to the answers given by him

during the course of cross-examination by the

respondent and the re-examination cannot be used to

give a chance to the witness to undo the statement of

SK,J CRP.No.315 of 2023

the witness made in the cross-examination and fill the

lacuna in the evidence and it cannot be permitted.

13. The petitioner filed the I.A under Section 137 of

the Evidence Act read with Section 151 of Civil

Procedure Code, but the same is not correct provision

and the Section 137 of the Indian Evidence Act deals

with the Examination-in-chief and the said provision

not apply to the instant case. The Section 138 of the

Evidence Act apply to the instant case.

14. Section 137 of Indian Evidence Act, 1872, read as

follows:

137. Examination in chief:

Examination-in-chief.--The examination of a witness by the party who calls him shall be called his examination-in-chief.

Cross-examination. The examination of a witness by the adverse party shall be called his cross-examination.

Re-examination. The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.

SK,J CRP.No.315 of 2023

15. Section 138 of the Indian Evidence Act, reads as

follows:

Order of examinations.- (1) A witness shall be first examined-in-chief, then (if the adverse party so desires) cross examined, then (if the party so desires) re-examined.

(2) 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 testified on his examination in chief.

(3) 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 reexamination, the adverse party may further cross-examine upon that matter.

16. The learned Counsel for the petitioner relying on

the Judgment of the Hon'ble Supreme Court in Rammi

@ Rameshwar Vs State of Madhya Pradesh (supra

2) contended that if the party who called the witness

feels that explanation is required for any matter

SK,J CRP.No.315 of 2023

referred to in cross-examination he has the liberty to

put any question in re-examination to get the

explanation, but the Court cannot direct him to confine

his questions to ambiguities alone which arose in

cross-examination and there is no warrant that

re-examination should be limited to one or two

questions. If the exigency requires any number of

questions can be asked in re-examination.

17. In the instant case CW1 was examined in chief by

the Court. As per the order of examination under

Section 138 of Indian Evidence Act, the party who was

examined in chief can only re-examine the witness,

therefore the judgments relied on the learned Counsel

for the petitioner not apply to the instant case.

18. The judgment relied on by the learned Counsel for

the respondent in Vesam Mohan Reddy Vs. Rebba

Pedda Agaiah (supra 3), this Court held that the

SK,J CRP.No.315 of 2023

cross-examination under Section 138 of the Evidence

Act need not be confined to the facts to which the

witness testified in examination in chief, but he can be

examined as to the whole of the case.

19. In Joginder Singh Vs. Devinder Kumar 6 the

Punjab and Haryana High Court at para No.6, held as

follows:

6.........Once, the witnesses had been cross-examined, they could not be recalled for further cross-examination only on the ground that they had not been cross-examined effectively by the Advocate who cross-examined them on the date they put in appearance. If such type of applications are allowed and witnesses are permitted to be further cross-examined, it will open a flood gate of litigation and a party would be entitled to move such applications either by changing counsel or by simply saying that on the date the witnesses were cross-examined, a specific question could not be put to them or that they could not be cross-examined effectively. Under the provisions of the Code, it is always open to the Court to recall the witness in case there is an ambiguity in his statement or the Court is of the opinion that some clarification is required"