2011(6) ALL MR 505
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
D.G. KARNIK, J.
Shri Gurdial Singh Vs. M/S. Arudatta Triotex Engineers Pvt. Ltd. & Anr.
Writ Petition No.8674 of 2010
7th June, 2011
Petitioner Counsel: Mr. Atul G. Damle
Respondent Counsel: Mr. N.R. Bubna
Evidence Act (1872) Ss.137, 138 - Civil P.C. (1908), O.18 R.4 - Re-examination of witness - Not confined only to clarification of facts stated in cross-examination - While re-examining a witness, explanation as to entirely new material may be asked - Principle applies to both civil as well as criminal proceedings.
Bare perusal of section 138 would show that the cross-examination need not be confined to the facts stated by the witness in examination-in-chief. If the facts which are not stated by the witness in examination-in-chief are put to him in the cross-examination, some explanation may be required to be given by the witness to the matters so referred to in the cross-examination. It is for this reason, the re-examination can be permitted by the court to explain the facts which were put to him in the cross-examination. Section 138 specially says that re-examination shall be directed to explain the matters referred to in the cross-examination. It is thus clear that re-examination is not restricted to explaining any ambiguity in the oral evidence (as is commonly misconstrued by many) but to explain any matter which has been referred to in the cross-examination of the witness. To protect the interests of the party cross-examining the witness at the first instance against any new material introduced in the re-examination, Section 138 further provides that if new facts are introduced in the re-examination, the adverse party would have a right of further cross-examination on that matter. The provisions of section 138 are so designed as to do complete justice between the parties and to give them full opportunity of adducing evidence. Re-examination has to be liberally allowed where new facts which are introduced in the cross-examination.
The principle that an entirely new material may be introduced in re-examination for explanation by witness, applies to both civil as well as criminal trials, as S.138 of Evidence Act applies to both civil and criminal trials.
2000(1) ALL MR 324 (S.C.) : 2000 ALL MR (Cri) 275 (S.C.) Rel.on. [Para 5,7,8]
Cases Cited:
Rammi alias Rameshwar Vs. State of M.P., 2000 ALL MR (Cri) 275 (S.C.)=(1999) 8 SCC 649 [Para 6,8]
JUDGMENT
JUDGMENT :- Rule, returnable forthwith. Mr. Bubna waives service on behalf of Respondent No.1. Learned counsel for the petitioner (defendant in the suit) states that the respondent no.2 is a formal party; hence, service on respondent No.2 is dispensed with. By consent, taken up for final hearing.
2. This petition is directed against an interlocutory order passed by the learned 3rd Joint Civil Judge, Senior Division (for short "the trial court") granting permission of re-examination of its witness (PW-1) to the respondent (plaintiff in the suit). For the sake of convenience the parties are hereinafter referred to as the plaintiff and defendant as per their status in the suit.
3. In pursuance of the provisions of Order 18, Rule 4 of the Code of Civil Procedure, as amended by the Amendment Act, 2002, the plaintiff filed an affidavit of Mr. Sunildatta Vasant Borwankar (PW-1) in lieu of examination-in-chief on 21st March, 2009. He was cross-examined by the defendant on 18th June, 2009. On the next date i.e. on 18th July, 2009 the plaintiff made an application that certain ambiguities had arisen in the evidence of PW-1 on account of answers given by him in the cross-examination in respect of a letter dated 19th July, 2001 (Exh.66/1) and therefore, the plaintiff may be permitted the re-examination of PW-1 to explain the circumstances under which the letter was issued. The application was resisted by the defendant. After hearing the parties, the trial court by its order dated 11th August, 2009 allowed the application and granted permission to the plaintiff to re-examine Mr. Borwankar (PW-1) with a condition that re-examination shall be restricted only to the extent of explaining the circumstances under which the letter dated 19th July, 2009 was issued. The defendant, thereafter, filed an application for review of the order. By order dated 30th March, 2010, the review application was dismissed. By this petition, the defendant challenges the original order as well the order passed on the review application.
4. The learned counsel for the defendant (petitioner) submitted that the application for re-examination ought not to have been granted. There was no ambiguity in the cross-examination. On the other hand, the plaintiff's witness Mr. Borwankar had admitted issuance of the letter dated 19th July, 2009 in his cross-examination. What the plaintiff wanted to do was to get over the said admission and/ or explain the said admission, which cannot be allowed by way of re-examination. The application, therefore, should have been rejected.
5. Section 137 of the Evidence Act says that the examination of a witness by the party who calls him shall be called his examination-in-chief; the examination of a witness by the adverse party shall be called his cross-examination and the examination of a witness, subsequent to the cross-examination by the party who calls him, shall be called his re-examination. Section 138 of the Evidence Act prescribes the order of examination and says that the witness shall be first examined-in-chief, then (if the adverse party so desires) cross-examined; then (if the party calling him so desires) re-examined. Section 138 further says that the examination and cross-examination must relate to the relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. Section 138 further provides that the re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross examine upon that matter. Bare perusal of section 138 would show that the cross-examination need not be confined to the facts stated by the witness in examination-in-chief. If the facts which are not stated by the witness in examination-in-chief are put to him in the cross-examination, some explanation may be required to be given by the witness to the matters so referred to in the cross-examination. It is for this reason, the re-examination can be permitted by the court to explain the facts which were put to him in the cross-examination. Section 138 specially says that re-examination shall be directed to explain the matters referred to in the cross-examination. It is thus clear that re-examination is not restricted to explaining any ambiguity in the oral evidence (as is commonly misconstrued by many) but to explain any matter which has been referred to in the cross-examination of the witness. To protect the interests of the party cross-examining the witness at the first instance against any new material introduced in the re-examination, Section 138 further provides that if new facts are introduced in the re-examination, the adverse party would have a right of further cross-examination on that matter. The provisions of section 138 are so designed as to do complete justice between the parties and to give them full opportunity of adducing evidence. Re-examination has to be liberally allowed where new facts which are introduced in the cross-examination.
6. I am fortified in my view by the decision of the Supreme Court in Rammi alias Rameshwar Vs. State of M.P. (1999) 8 Supreme Court Cases 649 : [2000(1) ALL MR 324 (S.C.) : 2000 ALL MR (Cri) 275 (S.C.)]. In paragraph 17 of the decision, the Supreme Court has observed :
"17. There is an erroneous impression that re-examination should be confined to clarification of ambiguities which have been brought down in cross-examination. No doubt, ambiguities can be resolved through re-examination. But that is not the only function of the re-examiner. If the party who called the witness feels that explanation is required for any matter referred to in cross-examination he has the liberty to put any question in re- examination to get the explanation".
7. The decision of the Supreme Court clears the erroneous impression which then existed that the re-examination should be confined only to clarification of the ambiguities which have been brought down in the cross-examination. Undoubtedly, ambiguities can be resolved through re-examination but that is not the only purpose for which re-examination is allowed. If the party who had called a witness feels that an explanation is required for any matter referred to in the cross-examination, he can be permitted by the court to put any question in that regard in the re-examination. Interest of the adverse party is protected by permitting him further cross-examination as to any new matter introduced in the re-examination.
8. Mr. Damale, learned counsel for the defendant (petitioner) submitted that the decision in the case of Rameshwar vs. State of MP [2000(1) ALL MR 324 (S.C.) : 2000 ALL MR (Cri) 275 (S.C.)] (supra) was rendered in a criminal proceedings and cannot be applied to a civil suit. The submission is stated only to be rejected. Re-examination is allowed under section 138 of the Evidence Act. Section 138 applies to both to criminal as well as civil trials. Principle laid down by the Supreme Court in the case of Rameshwar [2000(1) ALL MR 324 (S.C.) : 2000 ALL MR (Cri) 275 (S.C.)] (supra) cannot be restricted to only to a criminal trial. It applies equally to a trial of a civil case.
9. There is no merit in the writ petition which is hereby dismissed. Rule is discharged with no orders as to costs.