Karnataka High Court
M/S Balalji Exims vs D V Ramesh on 8 June, 2018
Author: S G Pandit
Bench: S.G. Pandit
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JUNE, 2018
BEFORE
THE HON' BLE MR. JUSTICE S.G. PANDIT
WRIT PETITION No. 54688 OF 2017 (GM-CPC)
BETWEEN:
M/S. BALAJI EXIMS,
BY ITS PROPRIETOR S.K. LOKESH
S/O LATE KARIYAPPA
AGED ABOUT 43 YEARS,
OFFICE AND RESIDENCE OF
'SIRI NILAYA' 1ST STAGE, 6TH CROSS,
VINOBANAGARA
SHIVAMOGGA- 577 201. ... PETITIONER
(BY SRI S.V. PRAKASH ADVOCATE ]
AND:
D.V. RAMESH
S/O LATE VENKATARAMANA GOWDA,
AGED ABOUT 53 YEARS,
AGRICULTURIST AND BUSINESSMAN,
SRI SAI LAKSHMI KRUPA
#F168, GOPALA GOWDA EXTENSION,
SHIVAMOGGA- 577 201. ... RESPONDENT
(BY SRI. M.R. VIJAYA KUMAR ADVOCATE)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDER DATED 14.11.2017 PASSED BY THE COURT
OF I ADDITIONAL SENIOR CIVIL JUDGE AND CJM,
SHIVAMOGGA IN REGARD TO THE PERMISSION TO
CROSS EXAMINE THE PW1 ABOUT THE COMPLAINT
LODGED AGAINST ONE JAIBUNNISSA AND HER FAMILY
MEMBERS IN O.S.NO.146/2014 PRODUCED AS PER
ANNEXURE-G TO THE WRIT PETITION.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 29.05.2018, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner is before this Court under Article 227 of the Constitution of India, assailing the order dated 14.11.2017 passed by the I Additional Senior Civil Judge and CJM, Shivamogga in O.S.No.146/2014 whereby further cross-examination of PW.1 has been rejected.
2. For the sake of convenience the parties are referred to as per their ranking before the trial Court. 3
3. The brief facts of the case are that the petitioner is the defendant in O.S.No.146/2014. The respondent herein has filed a suit in O.S.NO.146/2014 against the defendant for recovery of a sum of Rs.78,80,000/- along with interest at the rate of 24% p.a. It is the further case of the plaintiff that the defendant had borrowed Rs.50,00,000/- from him for his mining business. On issuance of suit summons the defendant appeared and filed his written statement denying the suit averments and prayed for dismissal of the suit. Thereafter the trial Court framed the issues and posted the matter for evidence.
4. The plaintiff filed evidence by way of affidavit and further examined himself and got marked five documents in support of his claim. The defendant cross-examined plaintiff
- PW.1 in the above suit on 21.08.2017, during the course of further cross-examination of PW.1 the counsel for the 4 plaintiff objected to certain questions put by the counsel for the defendant. The objections raised reads as follows :-
" £Á£ÀÄ F ¸ÀA§AzsÀ ¸ÀzÀj eɧĤßøÁ ªÀÄvÀÄÛ CªÀgÀ PÀlÄA§zÀªÀgÀ «gÀÄzÀÝ zÀÆgÀ£ÀÄß PÉÆlÄÖ CzÀÄ zÁR¯ÁVzÀÝ «ZÁgÀPÉÌ ¸ÀA§AzÀ¥ÀlÖAvÉ £ÁåAiÀÄ®AiÀÄ £Á£ÀÄ ¸ÀļÀÄî zÀÆgÀÄ PÉÆlÄÖ ¸ÀļÀÄî ¥ÀæPÀgÀt £ÀqɹgÀÄvÉÛÃ£É JAzÀÄ C©ü¥ÁæAiÀÄ¥ÀlÄÖ £À£Àß zÀÆgÀ£ÀÄß ªÀeÁUÉƽ¹gÀÄvÁÛgÉ JA§ ¥Àæ±Éß PÉýgÀÄvÁÛgÉ ¸ÀzÀj ¥Àæ±ÉßUÉ ªÁ¢AiÀÄ ¥ÀgÀ ªÀQîgÀÄ vÀPÀgÁgÀÄ vÉUÉzÀÄ ¸ÀzÀj ¥Àæ±ÉßUÀÆ F ¥ÀæPÀgÀtPÀÆÌ AiÀiÁªÀÅzÉà ¸ÀA§AzsÀ«®èªÉAzÀÄ ºÉýgÀÄvÁÛgÉ ¸ÀzÀj ¥Àæ±ÉßUÀ¼ÀÄ F ¥ÀæPÀgÀtPÉÌ ¸ÀA§AzsÀ ¥ÀqÀzÉà EgÀĪÀ PÁgÀt vÀ½î ºÁPÀ¯Á¬ÄvÀÄ "
5. The learned trial Judge heard the parties with regard to the objection raised by the Counsel for the plaintiff and passed order dated 14.11.2017 rejecting the request of the defendant for further cross-examination of PW.1. Being aggrieved by the said order the petitioner is before this Court.
6. Heard the learned counsel for the petitioner and the respondent. Perused the writ papers.
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7. The learned counsel for the petitioner - defendant submits that the suit filed by the plaintiff is a money suit and the plaintiff alleges that the defendant had borrowed money from the plaintiff. It is the case of the defendant that he has denied the transaction. During the course of cross- examination the counsel for the defendant put a question to PW.1 with regard to complaint given against one Jaibunnissa and family, which according to the defendant was a false complaint. Counsel for the plaintiff objected to the said question saying it is irrelevant for the purpose of the lis before the Court. The counsel for the petitioner submits that during cross-examination one need not be confined to the subject matter of the suit but one could ask the question to shake the credit worthiness of the witness to show that the witness is not credit worthy. Therefore, on that ground he seeks that he may be permitted to further cross-examine PW.1.
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8. Per contra, the learned counsel for the plaintiff submits that the defendant has made lengthy cross- examination of PW.1, hence there is nothing to cross- examine further in the matter. He further submits that it is for the Court to decide as to which question is relevant and which is not relevant for the purpose of deciding the dispute in question. The question which the defendant intends to put to PW.1 is not relevant for the purpose of this case and it is out of context. On this ground the learned counsel for the respondent prays for dismissal of the writ petition.
9. On perusal of the material on record it is seen that the matter was posted for cross-examination of PW.1 and the plaintiff is cross-examined at length by defendant's counsel. Plaintiff has filed the suit for recovery of money stating that the defendant has borrowed Rs.50,00,000/- from him for the mining 7 business of defendant. The defendant had filed the written statement and also additional written statement and had denied the transaction. Further in the written statement it is stated that the cheques were issued by the defendant as security to the plaintiff. Further it is the case of the defendant that the plaintiff is doing money lending business without obtaining proper license and permission from the concerned authorities. During the cross-examination of PW.1 the counsel for the defendant has put a question as extracted above. At that point of time, the counsel for the plaintiff objected to the same stating that the same is irrelevant and out of context. The counsel for the petitioner- defendant has relied upon Section 146 of the Evidence Act to say that he is at liberty to put any question during the course of cross examination and he need not confine himself to the subject matter of the suit.
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10. To know the credit worthiness of the witness certain questions are required to be put during the cross- examination, in that context, the counsel for the petitioner has put questions with regard to the alleged false complaint made by the plaintiff against one Jaibunissa. During cross- examination the counsels are at liberty to put questions directly or indirectly to elicit certain facts. As submitted by learned counsel for the respondent under Section 136 of the Evidence Act, it is for the Court to decide admissibility of evidence and decide as to in what manner alleged fact is to be proved. The question with regard to filing of false complaint against Smt. Jaibunnissa appears to be put in cross-examination to test the veracity and position of the plaintiff PW.1 in life and it appears it was done so, to show that his evidence is not trust worthy. Further it appears that the said question is put to elicit suppressed facts which will support the case of cross-examining party. The party has liberty to elicit anything from the witness as long as it relates 9 to the relevant facts. While putting question, the cross- examiner should keep certain standard of decency and decorum. Without any proof or cogent reason the cross examiner would not be justified in putting question which is irrelevant. In the facts and circumstances of the case, I am of the considered opinion, that the trial Court has committed error in denying the further cross-examination of PW.1 by defendant's counsel. If the defendant is not permitted to further cross-examine PW.1 injustice would be caused to the defendant.
11. Accordingly, the writ petition is allowed. The impugned order dated 14.11.2017 passed in O.S.No.146/2014 is set aside and the trial Court is directed to permit the counsel for the defendant to further cross-examine PW.1. 10
12. In view of main petition itself being allowed, I.A.No.1/2018 filed for stay does not survive for consideration, hence dismissed.
Sd/-
JUDGE NG* CT: SK