Patna High Court
Srimati Bimla Devi vs Rambhajan Mahto And Ors. on 27 June, 2006
Equivalent citations: AIR2006PAT168, AIR 2006 PATNA 168, 2007 (1) AIR JHAR R 943 2007 A I H C (NOC) 99 (PAT), 2007 A I H C (NOC) 99 (PAT), 2007 A I H C (NOC) 99 (PAT) 2007 (1) AIR JHAR R 943, 2007 (1) AIR JHAR R 943
Author: Navaniti Prasad Singh
Bench: Navaniti Prasad Singh
JUDGMENT Navaniti Prasad Singh, J.
Page 1694
1. This is an application by defendant No. 4 against order dated 08.05.2004 by which the learned Sub Judge II, Samastipur has acceded to the prayer of the plaintiff in Title Suit No. 116 of 2002 to expunge the deposition of plaintiff witness No. 2 Ramdeo Singh from the evidence. While doing so, he has also recorded that this defendant's Advocate had agreed to such a prayer, Consequently, this revision is also directed against the subsequent order dated 15.05.2004 by which the learned trial Court has refused to recall the earlier order.
2. Notice was issued to the opposite parties by order dated 01.09.2004, Notices were duly served but none has chosen to appear.
3. Heard the learned Counsel for the petitioner.
4. It is submitted on behalf of the petitioner that once the plaintiff filed the affidavit of P W 2 and produced him for examination as a plaintiff's witness, the said witness having made various statements in chief and in cross examination which remained inconclusive, it was not open to the plaintiff to make any prayer for expunction of the deposition so recorded. There is no provision under the Evidence Act permitting the said action. It was incumbent upon the Court to take such necessary steps to secure the attendance of the witness to complete the cross examination.
5. Having considered the matter, I think that the trial Court acted wholly without jurisdiction. Section 137 of the Evidence Act in Chapter X which deals with examination of witnesses lays down that first there shall be examination of the witness by the party who calls the witness. This is known as examination-in-chief. He is then to be tendered for cross examination by the adverse party. As per Section 138, in case there is any matter which requires any explanation raised in cross examination, the witness may be reexamined by the party who has called him, after the cross examination by the adverse party.
6. In the present case, defendant No. 4 had partly cross examined P W 2 when the case was adjourned for lack of time. Cross examination remained inconclusive. It is submitted that in course of his examination-in-chief and cross examination, the said witness had made certain admissions favourable to the defendant. In this Page 1695 situation, if certain statements were made in cross examination which needed explnation, it was open to the plaintiff to ask for his reexamination. Of course, this would not be done in respect of matters which were part of his examination-in-chief. If statements are made contrary to the interest of the party producing the witness in examination-in-chief itself then the witness has to be declared hostile in the common parlance. Such a contingency is contemplated under Section 154. The law of evidence is not different for criminal or civil cases. Here, if in chief, the witness made statements adverse to the interest of the plaintiff or in favour of the defendant, the only option was for declaring him hostile and for the plaintiff to seek the right to cross examine him but it was not open to the plaintiff to file a petition like in the present to say that the witness had been won over by the defendant and, as such, would not be produced for further cross examination and his evidence must be expunged. Such an application is unknown to law. In such a situation, it was obligatory on the part of the Court to secure the attendance of the Witness by all means available to the Court but the evidence so recorded could not be expunged.
7. In view of the above, I have no option but to allow this revision application, set aside the order impugned and direct the Court to proceed in accordance with the law as laid down above.