Delhi High Court
Niranjan Kumar vs Smt. Poonam Chawla on 18 November, 2006
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
JUDGMENT Sanjay Kishan Kaul, J.
CM No. 7984/2006 This is an application filed seeking restoration of the petition which was dismissed for non prosecution.
For the reasons stated in the application, the application stands allowed.
CM (M) No. 3167/2005 & CM No. 17788/2005
1. Admit.
2. At request of learned Counsel for the parties, the matter is taken up for final disposal.
3. The petitioner has approached this Court in the present proceedings under Article 227 of the Constitution of India on account of the manner in which the trial court was permitting or refusing the cross examination by the petitioner of a witness of the respondent.
4. The respondent has filed a suit for possession, recovery of arrears of rent and mesne profits in which the defense of the petitioner has been struck off. At the stage when the cross examination of the witnesses of the petitioner was in progress, the counsel for the petitioner sought to confront the witness with certain documents. This was objected to by the learned Counsel for the respondent and the trial court held that in view of the fact that the defense of the petitioner has been struck of, the witness cannot be confronted with those documents. These documents are 14 alleged rent receipts.
5. At the inception itself, it must be noticed that this Court does not sit as a court of appeal in proceedings under Article 227 of the Constitution of India and the object is only to ensure that a Court or a Tribunal confines itself to its own jurisdiction. It is also trite to say that the trial court is the master of how the evidence must be recorded and it is not the function of this Court to interfere in the progress of the evidence.
6. It is keeping the aforesaid conspectus in mind that the real grievance of the petitioner is being analyzed which arises from a legal plea raised that in cross examination the counsel for the petitioner must have full play within the ambit of law and even if the defense of the petitioner has been struck off, the petitioner cannot be precluded from confronting the witness with documents.
7. There is no dispute about the proposition of law that if the witness denies those documents, then those documents certainly cannot be exhibited and the occasion to exhibit those documents would only arise if the witness admits those documents. This is so since in cross examination, opposite party has a right to practically pull out a document out of its pocket and confront the witness with that document, which relates to that witness.
8. Learned Counsel for the respondent has drawn the attention of this Court to the judgment of the Apex Court in Modula India v. Kamakshya Singh Deo which has discussed the scope of the right of cross examination especially in a case where the defense has been struck off. The Apex Court has observed that even if the defense of the tenant has been struck off, there is nothing in law to preclude him from demonstrating to the court that the plaintiff's witnesses are not speaking the truth or that the evidence put forth by the plaintiff is not sufficient to fulfill the terms of the statute. The court can look into the plaintiff's evidence and pleadings and may consider such questions as are necessary and it has been held that in case any type of assistance from the defendant is completely eliminated, the same would put the court in a great handicap in discovering the truth or otherwise of the plaintiff's statement. The right of cross examination in such a case has been upheld subject to certain safeguards which include the aspect that the defendant cannot be allowed to lead his own evidence. The discussion in this behalf is contained thereafter in para 21 & 22 of the said judgment and the conclusions are set out in para 24 of the said judgment. The said paragraphs read as under:
21. Secondly, there is force in the apprehension that if one permits cross examination of the plaintiff's witnesses by the defendant whose defense is struck off, procedural chaos may result unless great care is exercised and that it may be very difficult to keep the cross examination within the limits of the principles discussed earlier. Under the guise of cross examination and purported demolition of the plaintiff's case, the defendant may attempt to put forward pleas of his own. To perceive quickly the difference between questions put out to elicit a reply from the plaintiff which may derogate from his own case and questions put out to substantiate pleas in defense which the defendant may have in mind and to restrict the cross examination to its limits will be not an easy task. We think,however, that this is a difficulty of procedure, rather than substance. As pointed out by Ramendra Mohan Dutta, J. this is a matter to be sorted out in practical application rather than by laying down a hard and fast rule of exclusion.
22. A third safeguard which we would like to impose is based on the observations of this Court in Sangram Singh v. Election Tribunal . As pointed out therein, the essence of the matter in all such cases is that the latitude that may be extended by the court to the defendant in spite of his having filed a written statement, should not cause prejudice to the plaintiff. Where the defendant does not file a written statement or where he does not appear to contest the case the plaintiff proceeds on the basis that there is no real opposition and contents himself by letting in just enough evidence to establish a prima facie case. Therefore, the court should ensure that by permitting the defendant at a later stage either to cross examine the witnesses or participate in the proceeding the plaintiff is not taken by surprise or gravely prejudiced. This difficulty however can be easily overcome in practice, because there is a wide discretion with the court and it is always open to the court, where it believes that the plaintiff has been misled, to exercise its discretion to shut out cross examination or to regulate it in such a manner as to avoid any real prejudice to the interests of the plaintiff.
24. For the above reasons, we agree with the view of Ramendra Mohan Datta, Acting C.J., that, even in a case where the defense against delivery of possession of a tenant is struck off under Section 17(4) of the Act, the defendant, subject to the exercise of an appropriate discretion by the court on the facts of a particular case, would generally be entitled:
(a) to cross examine the plaintiff's witness; and
(b) to address argument on the basis of the plaintiff's case.
We would like to make it clear that the defendant would not be entitled to lead any evidence of his own nor can his cross examination be permitted to travel beyond the very limited objective of pointing out the falsity or weaknesses of the plaintiff's case. In no circumstances, should the cross examination be permitted to travel beyond the legitimate scope and to convert itself virtually into a presentation of the defendant's case either directly or in the form of suggestions put to the plaintiff's witnesses.
9. In view of the aforesaid, it is not in doubt that the trial court would be guided by the aforesaid principles in permitting the scope of the cross examination.
10. The point, however, remains that there is nothing which precludes the petitioner from confronting the witness of the respondent in cross examination with the documents which are not on record. Thus to that extent, there is no dispute that the impugned order cannot be sustained and is set aside with the consent of the parties.
11. The witness in question will appear on a date to be fixed by the trial court on which date he will be further cross examined and no further opportunity will be granted in that behalf.
12. The costs of the witness to be borne by the petitioner.
13. The petition is allowed in the aforesaid terms leaving the parties to bear their own costs.
CM No. 17788/2005No further directions are called for on this application.
The application stands disposed of.
dusty to learned Counsel for the parties.