1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE24H DAY OF FEBRUARY, 2020 R BEFORE THE HONBLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.52330 OF2019(GM-CPC)BETWEEN :
... PETITIONER SRI. H.H.JYOTENDRA SINHJI VIKRAMSINHJI AGED APPROX76YEARS, S/O LATE VIKRAMSINHJI R/AT GONDAL PALACE GONDAL, GUJARAT360311 REPRESENTED BY HIS POWER OF ATTORNEY HOLDER GIRISH RAMNIKLAL BARBHAYA AGED ABOUT62YEARS, S/O LATE RAMANIK LAL BARBHAYA R/AT NO.1, JAYAMAHAL PALACE HOTEL JAYAMAHAL ROAD, BENGALURU560046. (BY SRI. GOWRISHANKAR.C, ADVOCATE) AND:
AMIT ROY S/O LATE ASHIT ROY AGED ABOUT43YEARS, RESIDING AT F-702, MANTRI ESPANA APARTMENTS, BELLANDUR OUTER RING ROAD, BELLANDUR, MARATHAHALLI BENGALURU560103. (BY SRI. VITTAL B.R., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE227OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DTD.15.10.2019 IN IA NO.58 AND59PASSED BY THE COURT OF XXXI ADDITIONAL CITY CIVIL COURT (CCH14 BENGALURU VIDE ANNEXURE-K CONSEQUENTLY ALLOW THIS W.P. PASSED IN O.S.NO.1963/2002 ; AND ETC. 2 THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING: ORDER... Petitioner
being the plaintiff in an injunctive suit in O.S.No.1963/2002 is knocking at the doors of Writ Court for assailing the order dated 15.10.2019, a copy whereof is at Annexure-K whereby, the learned XXXI Addl. City Civil Judge (CCH-14) Bangalore, having favoured respondents applications in I.A.Nos.58 & 59 has summoned him to enter the witness box for cross examination by the defendant.
2. After service of notice, the respondent having entered appearance through his counsel makes submission in justification of the impugned order and opposes the Writ Petition.
3. Having heard the learned counsel for the parties and having perused the petition papers, this Court frames the following two questions of law for consideration: (i) Whether a person who has not deposed in examination-in-chief be summoned for cross examination?. 3 (ii) Whether is it open to the defendant to summon the plaintiff for deposing as his witness?. The answer to these questions has to be in the negative for the reasons stated hereunder: a) admittedly, the petitioner plaintiff till date has not entered the witness box and deposed by way of examination in chief or by filing the affidavit evidence, in lieu of formal examination in chief; in the absence of examination in chief, a person cannot be straightway subjected to cross- examination subject to all just exceptions into which case of the petitioner does not fit; Mr. Rupert Cross, an Oxford Professor of law, in his treatise EVIDENCE III Edition, London BUTTERWORKS, at Page 212, states as under: All witnesses are liable to be cross- examined except one who is called by the judge, one who is called for the sole purpose of producing a document and one who is not examined-in-chief because he had been called by mistake. A witness who does not come within these excepted categories is probably liable to be cross-examined, not merely by the opponent of the party calling him, but also by all other parties. All parties probably have the right to cross-examine witnesses not called by them, whether or not the witness is himself a party, and whether or not the witness has given evidence against the party seeking to cross-examine him; 4 b) Sarkars Law of Evidence 18th Edition, LexisNexis at page 138 states as under: When Witness may not be Cross-Examined- (1) A witness summoned merely to produce a document (post s.139); (2) a witness sworn by mistake (ante and post s.139); or (3) a witness whose examination has been stopped by the judge before any material question has been put (Creevy v. carr. 7 C & P64 is not liable to cross- examination. (4) A witness giving replies in answer to questions by the court can only be cross examined with leave (s.165 post). (5) A witness who has given no evidence in chief, may not be cross-examined as to credit (Bracegirdle v. Bailey, 1 F & F536. (6) Under s.138 of the Indian Evidence Act, cross-examination follows chief-examination, but not without chief-examination. It there is no chief-examination, there is no cross-examination. Application for cross-examination of the plaintiff even when the plaintiff has not been examined in chief was rejected as not maintainable. c) the subject applications have been filed for summoning the petitioner plaintiff for the purpose of cross- examination on the ground that his attorney had deposed from the side of plaintiff and that he is now dead; no provision of Evidence Act, 1872 nor any standard books on Evidence are cited in support of the proposition that where the attorney of a party to the suit having deposed in cross- examination is dead, the said party can be straightway subjected to cross-examination by the other party; perhaps, the contention of the petitioner is abhorrent to the very idea 5 of cross-examination; in other words, there cannot be a cross- examination of a person because his attorney / agent having been examined in chief is not available for cross-examination because of death, disease or otherwise; d) the contention of the learned counsel for the respondent that his subject applications can be construed as the ones for summoning the plaintiff to depose as defendants witness is untenable; the Privy Council in MAHUNT SHATRUJAN DAS VS. BEWA SHAM DAS, AIR1938PRIVY COUNCIL59 observed that the practice of calling the defendant as a witness to give evidence on behalf of the plaintiff is condemnable; no special circumstances are pointed out as to why this judicial opinion emanating from enormous wisdom should not be respected and followed. In the above circumstances, this writ petition succeeds; a Writ of Certiorari issues quashing the impugned order and respondents subject applications are dismissed. No costs. JUDGE Sd/- Snb/DS