Madras High Court
S.Bhaskaran vs R.Loganathan (Deceased) on 18 December, 2013
Equivalent citations: AIR 2014 MADRAS 75, (2014) 1 ICC 964, (2014) 1 MAD LW 331, (2014) 136 ALLINDCAS 295 (MAD)
Bench: N.Paul Vasanthakumar, P.Devadass
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.12.2013
CORAM
THE HON'BLE MR.JUSTICE N.PAUL VASANTHAKUMAR
AND
THE HON'BLE MR.JUSTICE P.DEVADASS
O.S.A.No.392 of 2013
And
M.P.No. 1 of 2013
1. S.Bhaskaran
2. Shweta Narayan ... Appellants
Vs.
R.Loganathan (deceased)
1. Mrs. Savithri
2. L.Kannamurthy
3. P.Hemavathy
4. T.saraswathy ... Respondents
PRAYER: Appeal against the Order dated 22.11.13 made in A.No.4809 of 2013 in T.O.S.No. 23 of 2008 on the file of the High Court, Madras.
***
For Appellants : Mr.S.Parthasarathy
Senior Counsel
for Mr.M.Rajasekar
J U D G M E N T
P.DEVADASS, J., As this appeal lies on a narrow campus, we have decided to dispose of it at the admission stage itself.
2. This Original Side Appeal arises out of the order passed by the learned Single Judge in Application No. 4809 of 2013 filed by the plaintiffs in T.O.S.No. 23 of 2008, whereunder P.W.3 Rajakumari has been recalled to enable the plaintiffs to cross examine her.
3. One Loganathan is the father of respondents (plaintiffs). Loganathan's brother Purushothaman married one Renganayaki. They have no issues. Purushothaman, while alive stated to have executed a Will on 20.09.1997 whereunder reserved life estate in favour of his wife in his property situate in Royapuram, Chennai and the remainder absolutely in favour of his brother Loganathan. Purushothaman died on 01.04.1998.
4. In O.P.No. 157 of 2011, in this Court, Loganathan sought for issuance of Letters of Administration. Renganayaki questioned the genuineness of the said Will. She had stated that on 24.10.1997 her husband had executed a Will in her favour. If the Will dated 20.09.1997 is disproved Renganayaki will become absolute owner to her husband's property. Renganayaki sold the property to Bhaskaran and Ganga Devi, who are the appellants herein. The respondents herein have filed the suit in C.S.No. 227 of 1999 to cancel the sale deed made in their favour.
5. In O.P.No. 157 of 2001, Loganathan examined one Rajakumari. She confirmed the execution of the Will by Purushothaman and her attesting of it. On 17.09.2001, this court granted Letters of Administration to Loganathan. The purchasers, namely, Bhaskaran and Ganga Devi have filed Application Nos. 619 and 620 of 2002 to revoke the said Letters of Administration. It was dismissed by the learned Single Judge. However, on appeal, in O.S.A.Nos. 111 and 112 of 2003, on 18.08.2007, O.P.No. 157 of 2001 was converted as T.O.S.No. 23 of 2008.
6. In the meanwhile, both Renganayaki and Loganathan have passed away. The legal heirs of Loganathan continued the T.O.S. Thus, if the Will dated 20.09.1997 is proved, Loganathan will get absolute right to the property and that will devolve on his legal heirs, namely, the plaintiffs. If the Will is disproved, Renganayaki will become owner of the property, her purchasers, namely, the defendants in T.O.S.No. 23 of 2008, who are appellants herein will get title to the property.
7. Thus, in T.O.S.No. 23 of 2008, the crux of the matter is proving the Will of late Purushothaman dated 20.09.1997. The burden is now upon the legal heirs of late Loganathan.
8. In the circumstances, in T.O.S.No. 23 of 2008, deceased Loganathan's son, Kannamurthy, the third plaintiff/second respondent examined himself as P.W.1 and took steps to examine the attesting witness Rajakumari. He took summons to her. But she avoided it. However, after issuance of a bailable warrant by this Court, on 24.09.2013, she appeared and on 26.09.2013, she was examined by the Master as P.W.3. She had resiled from her previous statement in her affidavit filed in O.P.No. 157 of 2001. Now, she had stated that the Will dated 20.09.1997 of Purushothaman has not been executed in her presence and she did not attest the Will when it was executed. She was cross examined by the appellants / purchasers.
9. In the circumstances, on 10.10.2013, the respondents have filed Application No. 4809 of 2013 to recall Rajakumari to examine her as a Court witness. The appellants have filed counter opposing it. The learned Single Judge referring to Section 154 of Evidence Act allowed the application, recalled P.W.3 for the cross examination by the plaintiffs. However, gave liberty to the appellants/defendants to cross examine P.W.3 after the cross examination of the plaintiffs is over. Aggrieved, the defendants have directed this Appeal.
10. Mr.S.Parthasarathy, the learned Senior Counsel for the appellants would submit that the respondents (plaintiffs) had every opportunity to cross examine P.W.3 on the day when she was cross examined by the appellants, but they did not do so. Her chief examination was over. She was also thoroughly cross examined by the appellants. Her evidence has been completed. In such circumstances, since she has not deposed in favour of the respondents, subsequently, she cannot be recalled by the respondents to cross examine her.
11. The learned Senior Counsel further submitted that the attempt of the respondents is to fill up the gap arose in her evidence and that cannot be done. It will not be permitted under Order XVIII, Rule 17 C.P.C.
12. The learned Senior Counsel cited the following decisions in support of his submissions:-
(i) DAHYABHAI CHHAGANBHAI THAKKAR V. STATE OF GUJARAT [AIR 1964 SC 1563];
(ii) SHANMUGANATHAN V. VELLAISWAMY [1997-1- L.W. 92];
(iii) STATE OF BIHAR V. LALU PRASAD & ANR [2002 (AIR) (SC) 2432];
(iv) VADIRAJ NAGGAPPA VERNEKAR & ORS V. SHARAD CHAND PRABHAKAR GOGATE [2009 (4) SCC 410]
(v) VELUSAMY V. PALANISAMY [2011 (11) SCC 275].
13. We have given our anxious consideration to the submissions of the learned Senior Counsel, perused the materials on record, the impugned order and the decisions cited at the bar.
14. Necessary facts have already been stated. Let us not duplicate.
15. Now, the question involved here is whether a party, who has cited a person as his witness, when the witness both in the chief examination and cross examination deposed adverse to him, could be permitted to recall and cross examine the witness and whether such recalling of the witness is limited to any stage or period.
16. It is appropriate here to note Section 154 of the Evidence Act. It runs as under:-
"154. Question by party to his own witness:- (1) 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.
(2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness."
17. A plain reading of the said Section 154 would not show that such recalling has to be done within such stage or period of the suit or proceedings. Section 154 of the Evidence Act confers wide discretion to the Court to recall a witness. Normally a witness who had been produced by a party to speak in his favour will be examined by such party, it is chief examination and veracity of the deposition of the witness is to be tested by the opposite party it is cross examination, what was replied by the witness in such cross-examination when needs to be clarified, it becomes necessary to re-examine the witness, then it is re-examination. In this way, the examination of a witness goes on, Cross examination will be by the opposite party.
18. But, under certain circumstances, it may 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 V. 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. S. 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 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 in the interests 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."
21. In SAI PAUL V. DELHI ADMINISTRATION [AIR 1976 SC 294], as to the exercise of the discretion conferred under Section 154 of the Evidence Act, the Hon'ble Apex Court held as follows:-
"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 unfavourable" the 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. In the instant case, the court below for the reasons recorded in its order exercised its discretion under S.154 of the Evidence Act. As pointed out by the Supreme Court, the power conferred under S.154 is to be liberally exercised whenever the court finds from the tendency of the answer, demeanour, etc and grant such permission to the party to recall the witness and cross-examine him, which is not only expedient but also to extract the truth to do justice. In my view, the grant of such permission does not in any way affect the rights of the petitioner- defendant in further cross-examining the witness, P.W.2 after the cross-examination by the plaintiff was over. The grant of such permission does not amount of adjudication by the court as to the veracity of the witness. When a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether and it is for the Presiding Officer to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. There is also no absolute proof that the evidence of an interested witness cannot be accepted without corroboration."
22. In SHANMUGANATHAN V. VELLAISWAMY [1997-1- L.W. 92], the above principles were reiterated by this Court.
23. As to when the power conferred under Section 154 of the Evidence Act is to be exercised the following observations of a three-Judge Bench of the Hon'ble Supreme Court made in DAHYABHAI CHHAGANBHAI THAKKAR V. STATE OF GUJARAT [AIR 1964 SC 1563] is required to be noticed.
"Section 154 does not in terms, or by necessary implication confine the exercise of the power by the court before the examination-in-chief is concluded or to any particular stage of the examination of the witness. It is wide in scope and the discretion is entirely left to the court to exercise the power when the circumstances demand. To confine this power to the stage of examination-in-chief is to make it ineffective in practice. 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. To confine the operation 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. We cannot also agree with the High Court that if a party calling a witness is permitted to put such questions to the witness after he has been cross examined by the adverse party, the adverse party will not have any opportunity to further cross-examine the witness on the answers elicited by putting such questions. In such an event the court certainly, in exercise of its discretion, will permit the adverse party to cross-examine the witness on the answers elicited by such questions. The court, therefore, 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 the 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".
24. In LALU PRASAD YADAV's case [2002 (9) SCC 626], when the witness turned hostile, the Public Prosecutor did not immediately sought the permission of the Court to treat him as an hostile witness and cross examine him. Under such circumstances, the Court refused permission to recall him. But, in the said LALU PRASAD YADAV's case, there was no occasion for the Court to decide the issue as to the stage at which the hostile witness could be recalled. However, in DAHYABHAI's case (supra), the three-Judge Bench of the Hon'ble Supreme Court has elaborately dealt with the matter and held that Section 154 of the Evidence Act did not restrict the power of the Court by any stage or period within which the witness has to be recalled for cross examination by the party who has called him as his witness.
25. VADIRAJ NAGGAPPA VERNEKAR (2009 (4) SCC 410) and PALANISAMY (2011 (11) SCC 275) dealt with Order XVIII, Rule 17 C.P.C which provides for recalling of a witness at any stage of the suit. But, the witness cannot be recalled to fill up any lacunae in the evidence of a witness. But, that is not the situation before us. The case before us is coming under Section 154 of the Evidence Act.
26. Thus, it is seen that a witness who has been produced by a party as his witness when resiled from his previous statement made before any authority or court the person who has cited him as his witness may recall such witness and cross examine him like the opposite party. But, for mere asking such recalling of the witness will not be permitted by the Court. The Court has to exercise its judicial discretion to recall the witness. Before recalling the witness, there must be material to show that the witness has gone back from his earlier statement or he is not speaking the truth or exhibits an element of hostility or changed his sides. But such recalling of the witness is not adjudicating the matter itself. Such recalling is to extract the truth of the matter from the witness. That is what the basic function of the Court. But, such recalling of the witness has nothing to do with the appreciation of the evidence of such witness. Merely because a witness resiled from his previous statement, his evidence is not washed off. His evidence has to be subjected to appreciation / scrutiny like the evidence of any other witness. The wider power given to the Court under Section 154 of the Evidence Act cannot be restricted to any stage or period within which the witness has to be recalled.
27. Keeping the above principles in our mind, now we will revert back to our case.
28. The case of the respondents/plaintiffs is that the Will of late Purushothaman dated 20.09.1997 has been attested by Purushothaman's wife Renganayaki and Rajakumari [P.W.3]. Now, Renganayaki is no more. Only Rajakumari is alive. When issuance of Letters of Administration was sought for in O.P.No. 157 of 2001, Rajakumari spoken positively as to her attesting of the said Will in the presence of the testator. However, when subsequently, she was examined in T.O.S.No. 23 of 2008, she had resiled from her said previous statement given in O.P.No. 157 of 2001 and has changed her sides. Now, she had jumped to the camp of the appellants.
29. To prove the Will, examination of atleast one attesting witness is required. The only available witness is Rajakumari [P.W.3]. The Court has to extract the truth of the matter from her, however, she has subsequently exhibited an element of hostility towards the plaintiffs. In such circumstances, a strong case has been made out by the plaintiffs to recall her to question her which might be put to her in cross examination by the opposite / adverse party.
30. By recalling Rajakumari no prejudice would be caused to the appellants. They are also not able to demonstrate any prejudice would be caused to them. Actually the appellants will not be interested in such recalling of Rajakumari as a witness because they will be interested in the collapse of the Will case so that their purchase from Renganayaki could be protected.
31. Thus, in winding up our discussion on the issue as to recalling of Rajakumari for the cross examination of the plaintiffs, we hold that the impugned order permitting such recalling does not suffer from any infirmity.
32. In the result, this Original Side Appeal fails and it is dismissed. The impugned order of the learned Single Judge is upheld. consequently, connected Miscellaneous Petition is also dismissed. No costs.
(N.P.V.J.) (P.D.S.J.)
18.12.2013
Index : Yes/No
Internet : Yes/No
vsg
N.PAUL VASANTHAKUMAR, J.,
AND
P.DEVADASS, J.,
vsg
Pre-delivery Judgment in
O.S.A.No.392 of 2013
18.12.2013