Gauhati High Court
Jhanwarlal Patwa vs Uday Narain Goswami And Anr. on 28 July, 2006
Equivalent citations: AIR2006GAU184, AIR 2006 GAUHATI 184, 2007 (1) ALL LJ NOC 97, 2007 A I H C (NOC) 130 (GAU), (2006) 3 GAU LT 458
ORDER B.K. Sharma, J.
1. Both these applications under Article 227 of the Constitution of India by and between the same parties involving the same issue in respect of the orders passed by the Trial Court rejecting the prayer of the petitioner to re-cross examine the defence witness have been heard together and are being disposed of by this common Judgment and order. The basic facts materials for the purpose of disposal of the applications are stated below.
2. The petitioner herein as the plaintiff has instituted Title Suit Nos. 68/2000 and 63/2000 against the respondents herein as the defendants. The respondents claiming the following reliefs have filed both the suits in respect of the tenanted premises apprehending disconnection of electricity connection.
a) For a declaration of the plaintiffs tenancy right under the provisions of the Assam Urban Areas Rent Control Act 1972,
b) For both permanent and temporary injunction against the defendant restraining him from disconnecting the electric line in the suit room,
c) Also for issuance of temporary injunction against the respondent No. 1 for restoration of supply of electricity in the suit room,
d) For costs of the suit, and
e) For further relief.
3. According to the petitioner, the property in question is Ejmali property of the respondents as well as their mother, but Just to evict the petitioner from the tenanted premises, on the basis of an alleged Bainanama by and between them, a suit for specific performance was filed which was decreed ex parte.
4. In the suits filed by the petitioner, applications were filed with the prayers to call for the registered sale deed and the related documents and the applications were allowed by the learned Civil Judge (Sr. Division) No. 2, Cachar, Silchar before whom the suits are pending. Thereafter, the petitioner filed two further applications registered and numbered as Petition No. 753/12 and 752/11 respectively praying for re-cross examination of the DW-1/respondent No. 2. The defendant objected to the same by filing written objections and the learned Civil Judge by her impugned orders both date 7-5-2005 having rejected the prayer of the plaintiff/petitioner, the petitioner has now invoked the supervisory jurisdiction of this Court making a challenge to the same.
5. Mr. G.N. Sahewalla, learned Sr. Counsel assisted by Md. Aslam, learned Counsel appearing for the petitioner in both the cases, in reference to Section 151, CPC, Order 18, Rule 17, CPC and Section 165 of the Evidence Act submitted that the learned Civil Judge failed to exercise the jurisdiction vested on her and that she has committed error of Jurisdiction in passing the impugned orders dated 7-5-2005. He has also placed reliance on two decisions of two different High Courts, which are AIR 1998 Madras 323 S.S.S. Dural Pandlan v. S.A. Samuthira Pandian and Satinder Singh v. Sukhdev.
6. Mr. P. K. Roy, learned Counsel, representing the respondents submitted that although a challenge has been made to the aforesaid orders dated 7-5-2005 but by order dated 27-3-2003 the learned Civil Judge has closed the evidence and the same is not under challenge. Producing the certified copy of the order dated 27-3-2003, he submitted that upon closure of the evidence, when the matter was fixed for argument on 10-4-2003, the petitioner Just to adopt the dilatory tactics took recourse to the plea of necessity to re-cross examine the DW-1 According to him there is nothing wrong in the impugned order and that there being no provision either in the CPC or in the Evidence Act to re-cross examine the defence witness, the learned Civil Judge rightly rejected the prayer of the petitioner.
7. I have considered the submissions made by the learned Counsel for the parties and the materials on record. Before proceeding further in the matter, it will be appropriate to refer to the provisions on which the learned Counsel for the petitioner has placed reliance in support of his submissions. Section 151, CPC has been pressed into service to argue that the prayer made for re-cross examination of DW-1 ought to have been allowed for ends of justice and that the Trial Court was not prevented by way of any limit in exercising the inherent power. Order IS, Rule 17 on which the learned Counsel for the petitioner has placed reliance is in respect of the power of the Court to recall any witness, at any stage of the suit, subject to the law of evidence in force. Section 165 of the Evidence Act empowers to the Court to ask any question in any form at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of the documents or thing.
8. Order 18, CPC deals with the procedure of hearing of the suit and examination of witnesses. Chapter X of the Evidence Act deals with the procedure of examination of witnesses. As per Section 135 of the Evidence Act, the law and the practice shall regulate the order in which witnesses are produced and examined for the time being relating to civil and criminal procedure respectively, and in absence of any such law by the discretion of the Court. Section 137 of the Evidence Act provides for examination-in-chief, cross-examination and re-examination. Section 138 of the Act lays down the order in which the examination is to be made. Witnesses shall be first exarnined-in-chief and thereafter cross-examined by the adverse party, if so desires. Thereafter, the witnesses may be re-examined at the instance of the party producing him as the witness. Direction of re-examination can be made for 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. As per the provisions of Section 139 of the Act, a person summoned to produce a document does not become a witness by the mere fact that he produces it, and cannot be cross-examined unless and until he is called as a witness.
9. Section 151 of the CPC can only be invoked, if there is no express provision dealing with a particular situation. As to the methodology and procedure of examining, cross-examining and re-examining the witnesses, there are specific provisions both in the CPC and the Evidence Act about which mention has been made above. Falling back on the provisions of Section 151, CPC, a party cannot be permitted to re-cross examine a particular witness who has already been examined and cross-examined. It is on record that the DW-1 was examined and re-examined and on both the occasions, the petitioner got the opportunity to cross-examine him. In fact, he was re-examined on 10-7-2003 on which date the jurisdictional Sub-Registrar produced the documents called for by the plaintiff/petitioner. If he was interested to cross-examine the DW-1 in reference to those documents, he could have easily done so. Instead he had chosen not to do so and thereafter, by his applications filed more than one year from 10-7-2003 on which date the documents were produced and the DW-1 was re-examined made the prayer for re-cross examination of the said witness. In the meantime, the evidence was closed and the matter was fixed for argument.
10. Order 18, Rule 17 to which a reference has been made by the learned Counsel for the petitioner is also of no help to the case of the petitioner. This provision empowers the Court to call any witness who has already been examined. However, such power of the Court is subject to the law of evidence and the relevant provisions of the Evidence Act have been noticed above. Order 18, Rule 17 does not empower the Court to call for the witness already examined and cross-examined for the purpose of re-cross examination. The power of the Court to call for the witness is in the form of re-examination of the witness and not for the purpose of re-cross examination and that too at the sweet will of the party seeking such re-cross examination. Section 165 of the Evidence Act is also of no help to the case of the petitioner, which is again subject to the other provisions of the Act about which a mention has been made above. Section 165 only empowers the Court to put questions to any witness, which cannot be said to confer any right to the plaintiff to re-cross examine a witness who has already been examined and cross-examined on two occasions.
11. The two decisions on which learned Counsel for the petitioner has placed reliance are of no help to the case of the petitioner in the given fact-situation. Needless to say, that the ratio of any decision must be understood in the background of that case. It has been said long time ago that, a case is only an authority for what it actually decides, and not what logically follows from it. In both the decisions, the learned single Judge of the High Court dealing with the provisions of Order 18, Rule 17, CPC has held that the power vested on the Court is discretionary but the same ought to be exercised with the greatest care and only on the most peculiar circumstances. In the in-stant case, the particular witness has already been cross-examined on two occasions including 10-7-2003, when he was re-examined. On that day, the documents called for were produced by the jurisdictional Sub-Registrar. More than one year thereafter, the petitioner filed the applications seeking to re-cross examine the said witness. I am of the considered opinion that the learned Civil Judge has rightly rejected the prayer in her reasoned order dated 7-5-2005, which has been passed in reference to the factual aspect of the matter.
12. In view of the above I do not find any infirmity in the orders dated 7-5-2005 passed by the learned Civil Judge (Sr. Division) No. 2, Cachar, Silchar in Title Suit No. 68/1999 and 63/1999 warranting any interference under Article 227 of the Constitution of India. Consequently both the applications are dismissed.
13. Writ petitions are dismissed.