2010(4) ALL MR (JOURNAL) 14
(ANDHRA PRADESH HIGH COURT)
B. SESHASAYANA REDDY, J.
Vattikonda V. Anantharama Rao Vs. Voruganti Narayana Rao
CRP No.5585 of 2009
5th February, 2010
Petitioner Counsel: V. BRAHMAIAH CHAWDARY
Respondent Counsel: V. RAGHU
Evidence Act (1872), S.154 - Permission to cross-examine one's own witness - Grant of, power of Court, exercise of, scope - A witness called by a party to depose on its behalf, if deposes against such party, then discretion is granted to Court under Section 154, to permit such party to put any question to him which might be put in cross-examination by the adverse party - To grant such permission, Court has to exercise its power carefully taking into consideration all facts and circumstances of case - Merely because one part of statement of witness was not favourable to party, which called him, Court should not readily conclude that he was suppressing the truth or that his testimony was adverse to party, which called him - A witness cannot be treated or declared as hostile, when it cannot be said that he is resiling from his earlier statement - Refusal to grant permission to petitioner to cross-examine his own witness, justified.
It is well settled that merely because one part of the statement of the witness was not favourable to the party, which called him, the Court should not readily conclude that he was suppressing the truth or that his testimony was adverse to the party, which called him. To grant permission to cross-examine ones own witness, the Court has to exercise its power carefully taking into consideration all facts and circumstances of the case, for a witness to be treated or declared as hostile there should be some material to show that he made a statement or had done an act in support of the case of the party calling him as a witness at any earlier point of time and is speaking contrary to that statement or act. [Para 7,8]
The petitioner-defendant No.3 issued a notice to DW9 for specific performance of the agreement of sale. In response, DW9 issued a reply that the agreement executed in favour of the petitioner-defendant No.3 has been cancelled and earnest money has been returned. Such is the version of DW9 even before he is being summoned as a witness in the suit, it cannot be said that he is resiling from his earlier statement. Therefore, it is not a fit case to grant permission to the petitioner-Defendant No.3 to cross-examine his own witness, i.e., DW9. The trial Court considered the material brought on record in a right perspective and refused to grant permission to cross-examine his own witness, i.e., DW9. There is not flaw in the order passed by the trial Court warranting interference of Court in exercise of powers under Article 227 of the Constitution of India. [Para 9]
Cases Cited:
Smt. Kolluri Kusuma Kumari Vs. Grandhi Surya Bhagawan, 1995(2) APLJ 370 (HC) [Para PARA7]
N. Bularaju Vs. Vidhyadhar, 2004(4) ALD 490 [Para PARA8]
JUDGMENT
-Aggrieved by the order dated 26.10.2009 passed in OS No.52 of 2003 on the file of Junior Civil Judge, Kodad the defendant has filed this revision under Article 227 of the Constitution of India.
2. Voruganti Narayana Rao, the plaintiff filed the suit against Vattikonda V. Anantharama Rao, the defendant, for eviction and damages. The defendant resisted the suit by filing written statement. The plea of the defendant is that he purchased the suit schedule property under an agreement of sale from Para Seethaiah and he issued notice to Seethaiah to execute a registered sale deed pursuant to the agreement of sale. The trial Court settled the issues and the plaintiff adduced evidence on his behalf. The defendant commenced evidence on his behalf. He filed I.A. No.55 of 2007 to summon his vendor-P. Seethaiah for cross-examination. The trial Court, allowed the application, by order dated 5.12.2007. The plaintiff assailed the order dated 5.12.2007 by filing CRP No.5855 of 2007. The said CRP came to be allowed on 29.4.2008.The relevant portion of the order passed in the said CRP reads as hereunder:
"It is too elementary to restate that without there being any chief-examination, a witness cannot be subjected to cross-examination directly and the relevant provisions are under Sections 137 and 138 of the Indian Evidence Act. A perusal of Section 154 of the Act goes to show that the Court may, in its discretion, permit the person who calls a witness to put any questions to him, which might be put in cross-examination by the adverse party. It is to be noticed that if a party calls a witness to depose on his behalf and if he deposes against the person calling him as witness, for example, hostile witness, then the discretion is granted to the Court under Section 154 of the Act, to permit the party calling such witness to put any questions to him which might be put in cross-examination by the adverse party. Before Section 154 of the Act, the earlier sections under Sections 137 and 138 have to be followed and a combined reading of Sections 137, 138 and 154 goes to show that a party cannot be called directly only for the purpose of cross-examination."
3. After disposal of the CRP No.5855 of 2007, the defendant summoned his vendor-Seethaiah as witness. Seethaiah has been examined-in-chief on 12.10.2009 as DW9. He stated in the chief-examination that he cancelled the agreement executed in favour of the defendant and returned the earnest money and thereafter, he sold the property to the plaintiff under a registered document. At that stage, the defendant sought permission of the Court to put questions to witness that may be put during cross-examination. The plaintiff objected for granting such permission to the defendant. The trial Court on considering the material brought on record and on hearing the Counsel appearing for the parties sustained the objection of the plaintiff, by order dated 26.10.2009. The said order is assailed in this revision.
4. Notice before admission came to be ordered on 20.1 1.2009. The respondent received the notice and entered appearance through a Counsel.
5. Heard learned Counsel appearing for the parties and perused the order impugned in the revision.
6. Learned Counsel appearing for the petitioner submits that DW9 is vendor of the petitioner-defendant No.3 and since he resiled from the agreement of sale executed in favour of the petitioner-defendant No.3, permission is required to be given to petitioner-3rd defendant to cross-examine him. In elaborating his argument, learned Counsel submits that DW9 executed an agreement of sale in favour of petitioner-defendant No.3 and received substantial portion of the sale consideration and having received the same, he speaks of cancellation of the agreement of sale while being examined-in-chief and his statement amounts to resiling the agreement of sale in which case permission as sought for is required to be granted to the petitioner-defendant No.3.
7. It is well settled that merely because one part of the statement of the witness was not favourable to the party, which called him, the Court should not readily conclude that he was suppressing the truth or that his testimony was adverse to the party, which called him. To grant permission to cross-examine ones own witness, the Court has to exercise its power carefully taking into consideration all facts and circumstances of the case, vide decision of this Court in Smt. Kolluri Kusuma Kumari Vs. Grandhi Surya Bhagawan, 1995(2) APLJ 370 (HC).
8. For a witness to be treated or declared as hostile there should be some material to show that he made a statement or had done an act in support of the case of the party calling him as a witness at any earlier point of time and is speaking contrary to that statement or act, vide decision of this Court in N. Bularaju and another Vs. Vidhyadhar, 2004(4) ALD 490.
9. The petitioner-defendant No.3 issued a notice to DW9 for specific performance of the agreement of sale. In response, DW9 issued a reply that the agreement executed in favour of the petitioner-defendant No.3 has been cancelled and earnest money has been returned. Such is the version of DW9 even before he is being summoned as a witness in the suit, it cannot be said that he is resiling from his earlier statement. Therefore, it is not a fit case to grant permission to the petitioner-Defendant No.3 to cross-examine his own witness, i.e., DW9. The trial Court considered the material brought on record in a right perspective and refused to grant permission to cross-examine his own witness, i.e., DW9. I do not see any flaw in the order passed by the trial Court warranting interference of this Court in exercise of powers under Article 227 of the Constitution of India.
10. Accordingly, this civil revision petition and the same is hereby dismissed. No as to costs.