Madhya Pradesh High Court
Smt. Arti Arshe vs The State Of Madhya Pradesh Judgement ... on 22 October, 2013
1
W. P. No.17969/2013.
22.10.2013.
Shri Kamlesh Dwivedi, learned counsel for the petitioners.
Heard on the question of admission.
The petitioners/ defendants have filed this petition under
Article 227 of the Constitution of India being aggrieved by the order
dated 25.9.2013 passed by 1st Civil Judge Class-I, Churhat District
Sidhi in C. S. No.91-A/2013, whereby their application filed under
Section 154 of Evidence Act r/w Section 151 of CPC declaring their
witness Shivnath to be hostile and permitting them to cross-examine
him by placing the leading questions, has been dismissed.
The petitioners' counsel after taking me through the papers
placed on record along with the impugned order including the
deposition of the aforesaid witness Shivnath (Ann. P.2), argued that
the affidavit of such witness under Order 18 Rule 4 of CPC was filed
on behalf of the petitioners on 23.11.2012 and such witness was
cross-examined on behalf of the private respondents on 3.9.2013. As
alleged in such cross examination he has stated the fact contrary to his in chief stated in the aforesaid affidavit. Thereafter, the impugned application under Section 154 of Evidence Act r/w Section 151 of CPC to declare such witness to be hostile and permitting them to cross examine him by leading questions was filed on 19.9.2013, but the same has been dismissed by the trial Court without considering the averments of the affidavit of such witness as well as the version of cross-examination. He further said that in view of the provision of Section 137 of Evidence Act and of settled position of law, if the witness of the party at any stage of his deposition states contrary to 2 the earlier statements in chief or against the interest of the party, who called him then on making the request to declare such witness to be hostile and permit such party to cross examine such witness then the Court is bound to declare such witness to be hostile and permit the party like the petitioners to cross-examine such witness. In support of his contention he also placed his reliance on a decided case of the Apex court in the matter of Dahyabhai Chhaganbhai Thakkar Vs. State of Gujrat reported in AIR 1964 SC 1563. He also argued that the examination of such witness Shivnath was carried out in the absence of the counsel of the petitioners, so in such premises aforesaid prayer could not be made on the same day. With these submission he prayed to allow his application by setting aside the impugned order by admitting and allowing this petition.
Having heard the counsel keeping in view his arguments, I have perused the papers placed on record along with the impugned order.
True it is, that the examination in-chief of witness Shivnath was submitted in the shape of the affidavit under Order 18 Rule 4 of CPC on 23.11.2012 and thereafter he was cross-examined on behalf of the respondents on 3.9.2013. It is apparent fact that after recording the cross-examination of such witness no prayer to declare this witness to be hostile was made on the same day. Even it was also not pointed out that any ambiguity has come in the cross- examination, for which re-examination of the witness is necessary. But near about after sixteen days from the date of cross examination the impugned application was filed. Before proceeding further, I would like to reproduce the relevant part of the aforesaid case of the 3 Apex Court cited by the petitioners counsel. The same is read as under:
"8. . . . . . . . . . . . . The Court, therefore, can permit a person, who calls a witness, to put question to him which might be put in the cross-examination at any stage of the examination of the witness. . . . . . . . . . "
In view of the aforesaid verdict of the Apex Court, it is apparent that Court can permit a person who calls a witness to put question to him which might be put in the cross-examination at any stage of the examination of the witness. In such premises such permission could be given by the Court till the witness is under examination in witness box and not at later stage. In the case at hand it is apparent that on 19.9.2013 the date of filing the impugned application the witness was not under examination in the witness box because his deposition was already recorded on 3.9.2013. Therefore, in view of aforesaid dictum of the Apex Court the impugned application could not have been allowed by the trial Court, because at appropriate stage neither such objection was taken nor any prayer to declare such witness to be hostile was made. It is also apparent from the deposition sheet of the witness that after completion of his examination no prayer to ask any question in re-examination was made on behalf of the petitioners.
Section 154 of Evidence Act also provides that the Court may permit a party like petitioner who calls the witness to put question to him which might be put in the cross-examination of the adverse party, it does not speak to recall the witness to declare him to be hostile and permit the party, who called him to cross-examine him.
4So far the arguments advanced by the petitioners' counsel that examination of such witness was carried out in the absence of the counsel of the petitioners is concerned, firstly in the lack of any affidavit of concerning advocate such version is not reliable, secondly as per proceeding of the trial court the presence of the counsel on behalf of the petitioners has been marked and in view of provision of presumption enumerated under Section 114 (e) of Evidence Act, which says that all the judicial or official act are presumed to be correct unless the contrary is proved, mere on oral argument such proceedings of the trial Court could not be disbelieved. The Court is bound to presume that the deposition of said witness was recorded in the presence of the petitioners' counsel. Hence, such argument of the counsel is failed.
In the aforesaid premises, it is apparent that the trial Court has not committed any error in passing the impugned order and dismissing the aforesaid application of the petitioners. Even otherwise the impugned order being passed by the trial Court under its vested discretionary jurisdiction could not be interfered in view of the settled proposition that when subordinate court passes any order under it's vested discretionary jurisdiction then same could not be interfered by the High Court either under the revisional jurisdiction vested under Section 115 of CPC or under the superintendent jurisdiction of this court vested under Article 227 of the Constitution of India. Such principle has been laid down by the Apex court in the matter of Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar Hydrabad and another Vs. Ajit Prasad Tarway Manager (Purchase & Store) Hindustan Aeronautics Ltd. Balanagar Hydrabad 5 reported in AIR 1973 SC 76 and in the matter of Kokkanda B. Poondacha Vs. K. D. Ganpathi reported in AIR 2011 SC 1353,.
Apart the aforesaid it is apparent from the available record that after closing the evidence of both the parties the case is fixed for final argument. So in such premises it appears that the petitioner has filed the impugned application and after dismissal of the same this petition only to cause delay in disposal of the case. So, in such premises also this petition could not be entertained.
In view of the aforesaid discussion, I have not found any irregularity, illegality or any thing against the propriety of law in the order impugned. Consequently, this petition being devoid of any merits deserves to be and is hereby dismissed.
(U. C. Maheshwari) Judge k