Bombay High Court
Harish Loyalka And Anr vs Dilip Nevatia & Ors on 30 October, 2014
Author: G.S. Patel
Bench: G.S. Patel
8-S3598-96.DOC
agk
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO. 3598 OF 1996
Harish Loyalka & Anr. ...Plaintiffs
Versus
Dilip Nevatia & Ors. ...Defendants
Ms. Neeta Jain, i/b M/s. Mulla & Mulla, for the Plaintiffs.
Mr. Dileep Nevatia, Defendant No. 1 and for the Plaintiff in
Counter-claim.
Dr. Birendra Saraf, i/b M/s. Bali & Associates, for Defendant No. 5.
CORAM: G.S. PATEL, J
DATED: 30th October 2014
PC:-
1. I am informed that the mater is proceeding before the
Commissioner.
2. Dr. Saraf, learned Counsel for Defendant No.5, seeks a
clarification that it will not be necessary for the Plaintiffs or the 5th
Defendant to "put their case" to the 1st Defendant, who is the
witness under cross-examination, and, specifically, that should they
not do so, so adverse inference should be drawn against them, nor
should it be seen as any sort of admission.
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3. This is a question that arises repeatedly. Almost without
exception, in every single trial, attempts are made to put a series of
questions to a witness suggesting that every paragraph and every
line of his pleading or evidence affidavit is 'false' or 'untrue'. The
answer elicited is always a denial. I believe this practice is the result
of an apprehension that should such questions not be put to the
witness, the party who is cross-examining the witness may be
deemed to have accepted the witness's testimony.
4. This apprehension is not only unfounded, but it is based on
what I believe is an incorrect appreciation of the ratio of the
decision of a Division Bench of the Calcutta High Court in A.E.G.
Carapiet v A.Y. Derderian.1 Some stray observations, stripped from
context, from that decision are often cited2 to suggest that it is
absolutely and invariably necessary that questions such as these be
put to the witness: "I put it to you that what you have said in
paragraph 22 of your evidence affidavit is incorrect"; "I put it to
you that the third sentence of the fourth paragraph of your second
evidence affidavit is false"; "I put it to you that your entire
evidence affidavit is false", and so forth. Carapiet v Derderian
mandates no such practice.
5. Carapiet v Derderian was a probate action. The trial court
declined probate. The Appeal Court reversed. Paragraphs 6 to 15 of
this decision are material:3
1
AIR 1961 Cal 359
2
Though, in fairness, not by any of the parties before me today.
3
From the Manupatra report.
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6. The outstanding reason for which we are unable
to uphold this judgment is two-fold. The learned Judge's
reliance only on the evidence of Rev. Venkata Ramiah is,
in our opinion, unjustified. Secondly, there are inherent
infirmities of serious nature in the testimony of Rev.
Venkata. Ramiah which make it entirely unsafe to rely on
his uncorroborated testimony. We shall now state the
reasons for this view briefly.
7. The evidence of Rev. Venkata Ramiah is that the
testator was not in a sound physical and mental
condition to make the will on the date he is supposed to
have made it. He bases his conclusion on the ground of
his visit to the testator to give him sacrament. He found
him not in a fit condition to receive that sacrament. This
visit he fixes on the 26th December 1955 in the morning.
He says that was his first visit. On the day of the
execution of the will, which was the 28th December
1955, he does not pledge his oath that he visited him but
he says that he had paid two other visits whose dates he
could not definitely fix. In answer to question 32, he says
that he cannot remember the date of his second visit but
that his third visit was on the 31st of December.
Therefore, he presumed in evidence that his second visit
must have been either on the 27th or the 28th or the
29th.
8. Now, this case that Rev. Venkata Ramiah
visited the testator and found him in such an
unfit physical and mental condition was not put
to any of the doctors and nurses who were
called by the propounder to prove testamentary
capacity. That, in our judgment, is so serious an
omission as to have led to complete
miscarriage of justice in this case. The omission
is so serious that, in the absence of this case
being put to any of the medical witnesses and
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strangely enough not being put even to the
propounder when she was in the box giving
testimony in support of the will, this Court does
not know what the evidence of these persons
would have been if the case, which was made
by witness Rev. Venkata Ramiah, was put to
these witnesses. It may be noted that Rev. Venkata
Ramiah was practically the last witness in the suit except
the formal opinion evidence of one Dr. Pijush Kami Das
and one Mr. Chittaranjan Mazumdar called by the
respondent. It also is in evidence that Rev. Venkata
Ramish was in Calcutta for this purpose of giving evidence ever since the 10th May 1957. He was in Calcutta when the propounder Mrs. Carapiet was being examined on the 23rd May, 1957. In Spite of the presence of Venkata Ramiah in Calcutta waiting to be sprung as the last dramatic witness for the defendant, not a word was put to the propounder when she was in the box about the witness Venkata Ramiah having found the testator physically and mentally unfit.
9. Failure to put the important and crucial part of the case to the witnesses coming to prove testamentary capacity must be held against the respondents. It is all the more so because the case of witness Venkata Ramiah is that as early as in October, 1956 he had told this story at Poona to Mr. Aratoon and the learned counsel Mr. Ganguli. If that was so, then there can be no doubt that this case would have been put to the doctors and nurses who were being examined on commission in Poona itself. It is also strange why then the respondents did not have the evidence of this witness Venkata Ramiah immediately on commission at Poona and why he was kept up the sleeves to be played as a last trump as a last witness in the case when the entire evidence on the case of the propounder had been made and concluded. Lastly this 4 of 10 ::: Downloaded on - 31/10/2014 23:48:11 ::: 8-S3598-96.DOC course is ail the more reprehensible here because witness Venkata Ramiah admits that on all his visits to the testator's room in the nursing home he found the wife present (Q. 81) and if that is so then if the wife was put that case she might have denied but by keeping back this case from her, she was denied the necessary opportunity to do so, leading to failure of justice in this case.
10. The law is clear on the subject. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross- examination is being made comes to give and lead evidence by producing witnesses. It has been stated on high authority of the House of Lords that this much a counsel is bound to do when cross-examining that he must put to each of his opponent's witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. If he asks no question with regard to this, then he must be taken to accept the plaintiff's account in its entirety. Such failure leads to miscarriage of justice, first by springing surprise upon the party when he has finished the evidence of his witnesses and when he has no further chance to meet the new case made which was never put and secondly, because 5 of 10 ::: Downloaded on - 31/10/2014 23:48:11 ::: 8-S3598-96.DOC such subsequent testimony has no chance of being tested and corroborated.
11. On this point the most important and decisive authority is Browne v. Dunn, reported in (1893) 6 R 67. It is a decision of the House of Lords where Lord Herschell, L. C., Lord Halsbury, Lord Morris and Lord Bowen were all unanimous on this particular point Lord Chancellor Herschell, at page 70 of the report observed:
"Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact, by some questions put in cross-examination showing that that, imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses."
12. Lord Halsbury, the other member of the House of Lords, at page 76 of the same report said:
6 of 10 ::: Downloaded on - 31/10/2014 23:48:11 ::: 8-S3598-96.DOC "My Lords, with regard to the manner in which the evidence was given in this case, I, cannot too heartily express my concurrence with the Lord Chancellor as to the mode in which a trial should be conducted. To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to."
13. In fact Lord Halsbury described the situation as a "perfect outrage" at page 77 of the said report. After quoting the evidence the learned Lord said:
"My Lords, it seems to me that it would he a perfect outrage and violation of the proper conduct of a case at Nisi Prius if, after the learned counsel had declined to cross-examine the witness upon that evidence, it is not to be taken as a fact that that witness did complain of the plaintiff's proceedings, that he did receive advice, that he went round to Mr. Dunn as a solicitor, and that he did sign that retainer, the whole case on the other side being that the retainer was a mere counterfeit proceeding and not a genuine retainer at all."
14. The same view is expressed in the 13th Edition of Odger on Pleading and Practice at page 261 and the 9th Edition of Phipson On Evidence at page 497-98.
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15. Secondly, the infirmities in the testimony of witness Venkata Ramiah are far too great and serious to justify any reliance on his testimony.
(Emphasis supplied)
6. The purport of this lucid decision is clear. A witness whose testimony or credibility is impeached must be given an opportunity to defend his case and to meet the case of the party cross-examining him. Certainly he must be cross-examined as to the correctness of what he has said. But to suggest to him that what he said is generally incorrect, and to obtain a denial to this, seems to me entirely pointless. It is one thing to point out contradictions or inconsistencies and to ask the witness to explain these, or to suggest that two statements made by him cannot stand together and therefore to ask him to depose as to which of these is correct; or even to suggest that beyond his word he has no evidence, and so on.
What must be put to the witness is the material, essential and critical part of the cross-examining party's case. It is neither necessary nor desirable to put to the witness line by line that what he has stated is incorrect, without regard to whether that testimony is or is not material. Even a general suggestion that the entirety of his testimony is incorrect is unnecessary; the suggestion and its inevitable denial are of no value and no case I know of has turned on that. An omission to 'put' a line-by-line case or even a general case can never be an admission or an acceptance of his testimony generally; after all, he is being cross-examined, and the very fact that he is being questioned necessarily means that his testimony is not entirely accepted. But where the witness has a specific case and this is not tested, an admission may result. Equally, where the cross-
8 of 10 ::: Downloaded on - 31/10/2014 23:48:11 ::: 8-S3598-96.DOC examining party has a specific case, the witness must be given a chance to refute it.
7. In Carapiet v Derderian there was such a positive case:
Reverend Venkata Ramiah visited the testator and found him to be in an unfit physical and mental condition. This case was affirmative and it was absolutely essential that it be put to the other side's witnesses so that they might explain, respond and refute it. The opposing party could not possibly be held to have admitted this failing (or failed) physical and mental condition simply because no such case was ever put to them. Their testimony could not have been discredited or impeached on the basis of their apparent failure to respond to this, simply because they were never afforded an opportunity to do so. This was the situation before the Division Bench of the Calcutta High Court, and it was in that context that it held that the 'case was required to be put' to the plaintiff's witnesses. But nothing in Carapiet v Derderian requires that cross-
examining counsel must put to the witness a series of banal questions with inevitable denials that every single statement made by him is incorrect. The 'case' that is always required to be 'put' to the witness must be the affirmative one, i.e., the "essential and material case" and the "important and crucial part", to use the words of the Calcutta High Court. Judicial time need not be wasted in suggesting to the witness that every statement in his pleading is 'false'. Nothing can possibly turn on such a question and such an answer.
8. In a probate action, for instance, where the case is that will is a forgery, this must be put to the witness. He must have a chance to 9 of 10 ::: Downloaded on - 31/10/2014 23:48:11 ::: 8-S3598-96.DOC answer this. The case of forgery is a specific case. But it is never necessary to put to him a generalized and omnibus suggestion that his entire testimony is untrue or that everything he has said in a particular paragraph is incorrect. Indeed, this is no case being put at all.
9. Therefore, to respond to Dr. Saraf's submission: It is not necessary for him, on behalf of Defendant No.5, or counsel on behalf of the Plaintiffs, to take the witness, the 1st Defendant, through every line of his evidence affidavit or pleadings and to suggest to him that each of these is incorrect. The cross-examining counsel must, however, put their affirmative, essential and material case to the witness so that he has an opportunity to meet it. They must also confront the witness with any contradictions so that he may explain these. Other than that, a general question may suffice, though it is in my view unnecessary. The cross-examiner's wide discretion in such matters is one that must be used wisely and judiciously and not in a mechanical or rote manner. Absolutely nothing is achieved by putting 'formal' questions to a witness and obtaining a 'formal' denial. Indeed, there is no such thing in a cross-
examination as a 'formal' question or a 'formal' answer. Certainly, no adverse inference can be drawn against the Plaintiffs or Defendant No.5, nor is it in any sense an admission if they do not simply put to the witness, line by line and sentence by sentence, that what he has said is incorrect.
10. List the suit for directions on 16th December 2014. Liberty to the parties to mention if the cross-examination completed earlier.
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