ORDER
1. The petitioners/plaintiffs 2 to 4 aggrieved by the order passed by the court below, allowing the application filed by the first defendant/first respondent in I.A.No.106 of 1998 in O.S.No.249 of 1994 on the file of the Sub-Court, Pudukkottai, have filed the above revision in C.R.P.No.2090 of 1998.
2. The plaintiffs filed an application in I.A.No.118 of 1998 in O.S.No.249 of 1994 on the file of Sub-Court, Pudukkottai, to accept the reply statement in the suit which was rejected by the court below, and, aggrieved against the same, they have filed another revision in C.R.P.No.2091 of 1998.
3. The plaintiffs filed the said suit seeking a decree for partition of the suit properties into six equal shares by metes and bounds. According to the plaintiffs, the suit properties are the self-acquired properties of one Subramania Pillai who died on 20.11.1993, leaving his wife, the first plaintiff, the second plaintiff, the defendants 1 and 2 as his legal heirs. The first plaintiff also died on 17.7.1994 intestate. According to the plaintiffs, plaintiffs 2 to 4 and the defendants 1 to 3 are her heirs. The defendants 1 and 2 contested the suit by filing written statement. In the written statement it is stated that the deceased Subramania Pillai executed a Will dated 20.12.1990 in favour of the defendants 1 and 2 and registered the same and so the plaintiffs are not having any right in the suit properties. To prove their case, the defendants examined one Rajagopala Iyengar as D.W.2. In the chief-examination held on 16.3.1998 he has spoken to about the attestation of the Will, Ex.B-3. The cross examination was held on 31.3.1998. In the said cross examination, he has stated that he had attested another Will Ex.A-6. He was also cross examined
by the defendants. Thereafter, the first defendant filed an application in I.A.No.106 of 1998 to permit the defendants to cross examine D.W.2 as he has deposed about Ex.A-6, and to bring out and test the truth about the same, they should be permitted to cross examine him. The same was contested by the plaintiffs. But the court below allowed that petition. Aggrieved against the same, the plaintiffs 2 to 4 filed the above revision in C.R.P.No.2090 of 1998.
4. The learned counsel appearing for the petitioners has submitted that the respondent did not opt for such examination of D.W.2 while cross examining or re-examining him. According to the learned counsel, with respect to the evidence of D.W.2 regarding Ex.A-6, re-examination was made without even asking for cross examining him and so at this stage the petition filed by the respondent cannot be maintained. In support of his submission, the learned counsel has relied on various decisions.
5. The learned counsel appearing for the respondent, per contra, has submitted that D.W.2, his own witness has given evidence about Ex.A-6 under certain circumstances mentioned in the affidavit. So, to bring out the truth, he should be allowed to cross-examine D.W.2. As held by the Apex Court and this Court, it is the discretion of the trial court to permit such petition on the basis of the facts of the case and in the interest of justice. According to him, in the present case, the plaintiffs have not stated anything about Ex.A-6 in the plaint, and after chief examination held on 16.3.1998 when D.W.2 was cross-examined on 31.3.1998, he had spoken about Ex.A6 as if he has attested the said document. In view of the said circumstances, D.W.2 has to be cross-examined.
6. To appreciate the case on hand, it is necessary to appreciate Section 154 of the Indian Evidence Act, which reads as follows:-
“The court may, in its discretion, permit the person who calls a witness put any questions to him which might be put in cross-examination by the adverse
party”.
7. From a reading of the abovesaid provision, it is clear that the discretion is conferred upon the Court to permit cross-examination of his witness, and it does not contain any conditions or guidelines which may govern exercise of such discretion. But, it is always expected that the courts have to exercise such discretion judicially and properly in the interest of justice. A party will not normally be allowed to cross-examine his own witness and declare the same hostile unless the Court is satisfied that the statement of witness exhibits an element of hostility or that he is resiled from a material statement or where the court is satisfied that the witness is not speaking the truth and it may be necessary to cross-examine him to get out the truth. There must be some material to show that the witness is not speaking the truth or has exhibited an element of hostility to the party for whom he is deposing before a witness can be declared hostile and the party examining the witness is allowing to cross examine him. Merely because the witness speaks
about the truth which may not suit the party on whose behalf he is deposing the same and favourable to the other side, the discretion to allow the party concerned to cross-examine its own witness cannot be exercised.
8. In the present case, through D.W.2 has spoken about the Will marked as Ex.B-3, he has also spoken about the Will marked as Ex.A.6. Merely on the basis that he has spoken about Ex.A.6, it has to be found out whether he has to be treated as hostile witness, invoking Section 154 of the said Act.
9. The learned counsel appearing for the respondent has relied on the decision in Ammathayarammal v. Official Assignee, A.I.R. 1933 Mad. 137 in support of his submission that while the trial court had exercised its discretion under Section 154 of the said Act, this Court may not interfere with the said order. In the said decision, the learned Judges have held as follows:-
“Whatever may be the reasons for the exercise of its discretion by the court under Section 154, first of ail to obtain the sanction of the court to cross-examine the witness, is in accordance with the general practice and that practice in my opinion ought always to be followed although Section 154 may not make such procedure imperative, but when the court has exercised its discretion under Section 154 it ought not to be interfered with by the appellate court”.
10. The learned counsel has further relied on the decision in Sat Paul v. Delhi Administration, , in support of his submission that in the said decision the Apex Court has held regarding the scope of exercising the powers under Section 154 of the said Act, which is as follows:-
“To steer clear of the controversy over the meaning of the terms ‘hostile’ witness, ‘adverse’ witness, ‘unfavourable’ witness which had given rise to considerable difficulty and conflict of opinion in England, the authors of the Indian Evidence Act, 1872 seem to have advisedly avoided the use of any of those terms so that, in India, the grant of permission to cross-examine his own witness by a party is not conditional on the witness being declared ‘adverse or hostile’. Whether it be the grant of permission under Section 142 to put leading questions or the leave under Section 154 to ask questions which might be put in cross-examination by the adverse party, the Indian Evidence Act leaves the matter entirely to the discretion of the court (see the observations of Sir Lawrence Jenkins in Baikuntha Nath v. Prasannamoyi, AIR 1922 PC 409. The discretion conferred by Section 154 on the court is unqualified and untrammelled, and is apart from any question of ‘hostility’. It is to be liberally exercised whenever the court from the witness’s demeanour, temper, attitude, hearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does not amount to an adjudication by the court as to the veracity of the witness. Therefore, in the order granting such permission, it is preferable to avoid the use of such expressions, such as declared hostile, declared unfavourable, the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that had so long vexed the English Courts”
11. He has further relied on the decision in Shanmuganathan v. Vellaiswamy, 1997 (I) L.W. 92 in support of his submission that the power conferred under Section 154 of the said Act has to be liberally exercised. AR. Lakshmanan, J., while dealing with the scope of judicial discretion conferred under Section 154 of the said Act, after considering a number of decisions on that aspect in the elaborate judgment, has held as follows:-
“In the instant case, the court below for the reasons recorded in is order exercised its discretion under Section 154 of the Evidence Act. As pointed out by the Supreme Court, the power conferred under Section 154 is to be liberally exercised whenever the court finds from the tendency of the answer, demeanour, etc., and grant such permission to the party to recall the witness and cross-examine him, which is not only expedient but also to extract the truth to do justice. In my view, the grant of such permission does not in any way affect the rights of the petitioner-defendant in further cross-examining the witness, P.W.2 after the cross-examination by the plaintiff was over. The grant of such permission does not amount to adjudication by the court as to the veracity of the witness. When a witness is cross- examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether and it is for the Presiding Officer to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. There is also no absolute proof that the evidence of an interested witness cannot be accepted without corroboration.
As pointed out by the various High Courts in the country and also by the Apex Court, it is rather difficult to lay down a rule of universal application as to when and in what circumstances the courts will be entitled to exercise its discretion under Section 154 of the Evidence Act, I am of the view, that the discretion to be exercised will depend upon the facts and circumstances of each case. Before a count exercises its discretion in declaring a witness hostile, there must be some material to show that the witness has gone back on his earlier statement or is not speaking the truth or has exhibited an element of hostility or has changed sides”
12. There cannot be any dispute about the abovesaid principles. As held by the courts that the discretion of power conferred under Section 154 of the said Act on the court is unqualified and untrammelled, and it has to be exercised sparingly when the facts and circumstances of the case warrant. It is well-settled that merely because the witness has given statement against the person on whose behalf he is deposing, that witness cannot be construed as hostile. In the present case, the court below has granted permission to the first defendant to cross-examine D.W.2 only on the basis that he has spoken about Ex.A.6 which was marked through him and it is against their interest, can it be said that he has to be declared as hostile to the defendants? I am not able to sustain the reasonings given by the court below regarding the same. In the cross-examination he has not gone back from his evidence in the chief-examination. He has spoken about Ex.A.6 which was marked through him during the course of cross-examination since he seems to have attested the said document. He has admitted the attestation of that document. As stated already, the defendants re-examined him on that aspect. Thereafter, they filed the present application.
13. The Apex Court in R.K. Dey v. State of Orissa, , has also held as follows:-
“In other words a witness should be regarded as adverse and liable to be cross-examined by the party calling him only when the Court is satisfied that the witness bears hostile animus against the party for whom he is deposing or that he does not appear to be willing to tell the truth. In order to ascertain the intention of the witness or his conduct, the Judge concerned may look into the statements made by the witness before the Investigating Officer or the previous authorities to find out as to whether or not there is any indication of the witness making a statement inconsistent on a most material point with the one which he gave before the previous authorities. The court must, however, distinguish between a statement made by the witness by way of an unfriendly act and one which lets out the truth without any hostile intention.”
In view of the above, merely because some statements of D.W.2 are against the defendants, it cannot be said that he has become hostile. The court below has not considered all these aspects, and, only on the ground that he has spoken about Ex.A6, which is against the interest of the defendants, the court below has allowed the application.
14. Moreover, the first defendant has come forward with the present application, after re-examining D.W.2, that is, after closing the deposition of D.W.2. While construing the issue at what stage the said application under Section 154 of the said Act can be filed, the learned Judge of the Andhra Pradesh High Court in B.N. Chobe v Sami Ahmed 1969 (I) An.L.T.R. 32 has held as follows:-
“A careful and close reading of this section would indicate that firstly it is in the discretion of the Court to permit a person who calls a witness to put any question which might be put in cross-examination by the adverse party; and secondly, before such questions in cross-examinations are put by the party calling the witness, permission of the Court must be obtained. The section does not use the word ‘cross-examination’ but says that the court may permit ‘to put any questions to him which might be put in cross-examination’, the reason apparently being that ‘cross-examination’ being examination by the adverse party the use of any such term would have been contradictory. The section does not also use the expression ‘hostile witness’. It is true that there is nothing in section 154 as to declaring a witness hostile, but it provides that the court may in its discretion permit a person who calls a witness, to put any questions to him which might be put in cross-examination. It is, however, abundantly plain that unless during the course of the examination of a witness the witness demonstrates hostility to the person who called him as a witness and the Court is satisfied that the witness is hostile to the persons who called him as a witness, it will not grant permission to the party who has called the witnesses to cross-examine him. No hard and fast rules can be laid down as to when a witness can be called as adverse or a hostile witness. It can however broadly be stated that the court ‘can allow a party to cross-examine his witness firstly when his temper, attitude, demeanour etc. in the witness box show a deliberately hostile or antagonistic feeling towards the party calling him or secondly when concealing his true statements he does not exhibit any hostile feeling but makes statements contrary to what he was called or expected to prove what he had deliberately told before and by his manner of giving evidence and conduct shows that he is suppressing the truth or that he is not
desirous of giving evidence fairly and telling the truth to the Court with a view to help the other party. The section, it must be stated, contemplates permission to be obtained during the course of the examination of the witness. Any other view would be inconsistent with section 154, firstly because it is during the examination of the witness that it must be found that the witness has shown himself hostile or adverse, and it is only then that the question of permission by the Court to put questions in cross-examination by the party who called the witness can arise. After the examination- in -chief and the cross-examination of the witness is over, the only question which can arise, is whether the party, who put the person in the witness box, has any question by way of re-examination to ask. At that stage no question of cross-examining the witness under section 154 can arise. Normally this question arises only when the witness is asked question in the examination in – chief by the party who produced him. But there may arise some cases where the hostility is demonstrated by the witness during the cross- examination by the adverse party. The section, ‘in my view, has been deliberately couched in wide terms. It is possible to seek permission of the Court to cross-examine one’s own witness when hostility becomes apparent. That hostility may appear either during the examination-in-chief or the cross-examination. Nevertheless it is during the examination of the witness and before it concludes that the witness must appear hostile to the person who called him and permission ought to be asked before he is cross-examined by the person who produced him as a witness. In case the whole of the examination of the witness is over without noticing any hostility and an application is filed on the next date of hearing for permission to treat the witness as hostile, then to allow the party who put him in the box to cross-examine, will, in my opinion, defeat the very purpose of section 154. The court is not likely to recollect the demeanour of the witness and to remember as to whether his altitude was hostile unless of course the demeanour is marked during the course of the cross-examination by the Court and a note to that effect is made in the record. If the judge, who recorded the evidence of a witness is transferred as has happened in this case, and the application to cross-examine the witness on the next date of hearing is made before altogether a new Judge it will be almost impossible to consider the witness, whose evidence has already been completely recorded, as a hostile witness and then grant the permission to the party to cross- examine his own witness. It must be remembered that section 154 confers discretion on the Court to grant the permission to cross- examine one’s own witness in certain circumstances, the discretion, like any other discretion, has necessarily to be used judicially, it is expected of the Court to give reasons while exercising this discretion one way or other. How is it possible for the judge who had not recorded the evidence of a witness to treat the witness as hostile after his evidence was concluded. To me, it seems clear that section 154 applies when the witness is under examination. Such a permission can be sought and granted during the examination-in -chief or at the stage of cross-examination or perhaps there may be cases even where he is under re-examination . In any case, however, before his evidence is concluded, his hostility must be brought to the notice of the Court and the permission sought to put questions in cross- examination by the party who happens to produce him. If this procedure is not followed and an application is filed on a subsequent date before altogether a new Judge, as is the case here, I do not think such an application can be granted”.
15. Before the learned Judge, on the basis of the decision in Ammathayarammal v. Official Assignee, AIR 1933 Mad. 137 a submission was made to the effect that such an application can be filed even subsequently.
While dealing with the said submission, the learned Judge has further held as follows:-
“I do not think this decision anywhere decides that way. On the other hand, some observations of Beasley, C.J. go quite contrary to the contention raised before me. It is apparent from the facts the learned Chief justice narrated at the outset of his judgment that ‘Whilst he the witness was under examination in chief, Mr. Grant, who appeared for the Official Assignee, put a number of questions to the witness of a cross-examination nature’, without asking the permission of the Court to do so. Again at page 141, the learned Chief Justice observed as follows:-
‘Although S. 154, Evidence Act, gives the Court an unfettered discretion to allow cross-examination of a witness by the parties calling him, in my opinion it ought not to exercise discretion unless during the examination-in-chief of the witness something happens which makes it necessary for the facts to be got from the witness by means of Cross-examination’.
Again, at page 142, the learned Chief Justice said:
‘But it is clear that had permission be formally asked for, he would have granted it and as no objection was taken to that procedure by the appellant’s counsel, and was only taken after all the evidence had been given during the course of the argument, it is now too late to allow this objection which, had it been taken during the cross-examination, would have been overruled by the learned Judge’.
This decision, therefore, far from doing service to the petitioner does distinctly disservice to him. I am, therefore, satisfied that the application made by the plaintiff to the Court below that P.W.3, whose examination was already over, should be recalled and treated as hostile and permission granted to cross-examine him, was rightly rejected and I do not find any valid reason to interfere with that decision.”
16. Even in Dahyabhai v State of Gujarat, , while dealing with the similar issue, it has been held as follows:-
“Section 137 of the Evidence Act gives only the three stages, in the examination of a witness, namely examination-in- chief, cross-examination and re-examination of a witness. This is a routine sequence in the examination of a witness. This has no relevance to the question when a party calling a witness can be permitted to put to him questions under S.154 of the Evidence Act; that is governed by the provisions of S.154 of the said Act, which confers a discretionary power on the court to permit a person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. Section 154 does not in terms, or by necessary implication confine the exercise of the power by the court before the examination-in-chief is concluded or to any particular stage of the examination of the witness. It is wide in scope and the discretion is entirely left to the court to exercise the power when the circumstances demand. To confine this power to the stage of examination-in- chief is to make it ineffective in practice. A clever witness in his examination-in-chief faithfully conforms to what he stated earlier to the police or in the committing court, but in the cross-examination introduces statements in a subtle way contradicting in effect what he stated in the
examination-in-chief. If his design is obvious, we do not see why the court cannot, during the course of his cross- examination, sic-re-Examination permit the person calling him as a witness to put questions to him which might be put in cross- examination by the adverse party. To confine the operation of S.154 of the Evidence Act to a particular stage in the examination of a witness is to read words in the section which are not there. We cannot also agree with the High Court that if a party calling a witness is permitted to put such questions to the witness after he has been cross-examined by the adverse party, the adverse party will not have any opportunity to further cross- examine the witness on the answers elicited by putting such questions. In such an event the court certainly, in exercise of its discretion, will permit the adverse party to cross-examine the witness on the answers elicited by such questions. The court, therefore, can permit a person, who calls a witness, to put questions to him which might be put in the cross-examination at any stage of the examination of the witness, provided it takes care to give an opportunity to the accused to cross-examine him on the answers elicited which do not find place in the examination-in-chief”
17. In view of the above, the court below is not correct in allowing the application filed by the first defendant/respondent to cross examine the witness D.W.2 under Section 154 of the said Act after closing the evidence of D.W.2. Hence the order of the court below impugned in C.R.P.No.2090 of 1998 has to be set aside.
18. The plaintiffs/petitioners have filed I.A.No.118 of 1998 in O.S.No.249 of 1994 on the file of the Sub-Court, Pudukottai, to accept the reply statement which was rejected by the court below on the ground that only after getting permission from the court, such an application can be filed, and that it cannot be allowed after examining the witnesses. Since the petitioners/plaintiffs have come forward with the plea, which is necessary to decide their right, in the interest of justice, the court below should have accepted the said reply statement. Moreover, D.W.2 has spoken about the same. To avoid technical objection, and as there was no pleading to that effect, the petitioners/plaintiffs have come forward with the said application. It is also stated in the affidavit filed in support of the said application that Ex.A6 executed by the father of the first petitioner was received by him only on 20.3.1998. The same was not disputed in the counter filed by the respondents/defendants. In view of the valid reason given by the plaintiffs/petitioners, the court below is not correct in rejecting the said application. Therefore, the order passed by the court below in I.A.No.118 of 1998 has to be set aside.
19. In the result, the order of the court below, in I.A.No.106 of 1998 in O.S.No.249 of 1994 is set aside and C.R.P.No.2090 of 1998 is allowed. No costs. C.M.P.NO.10327 of 1998 is closed. Similarly, the order passed by the court below in I.A.No.118 of 1998 in O.S.No.249 of 1994 is also set aside and C.R.P.No.2091 of 1998 is allowed. No costs.