1. The petitioner in the civil revision petition under S. 50 of the Karnataka Rent Control Act, 1961, is the respondent-tenant in H. R. C. No. 679 of 1975 on the file of the III Additional Civil Judge, Bangalore City and challenges the order made by the Court-below an 19-1-1976 dismissing 1. A. XI in which petitioner sought to have the handwriting in Ex. R-27 sent to the Handwriting Expert attached to Forensic Science Laboratory, Bangalore, for the purpose of comparing disputed writing in the said Ex. R-27 with the exemplar writings of witness, R. W. 3, examined in the case.
2. The landlord, respondent herein, sought the eviction of petitioner on several grounds. In the course of his evidence petitioner sought to displace the alleged bona fides of the requirement of the landlord by alleging that the landlord had through the mediation of R. Gopalaswamy negotiated a sale of the property concerned in the proceedings to the petitioner, and that the said Gopalaswamy, allegedly in exercise of his authority as such agent of the landlord, held, negotiations with the petitioner in the matter of the proposed sale, in the course of which the writing, Ex. R-27 in the hand of the said Gopalaswamy came into existence. However, when the petitioner examined the said Gopalaswamy as R. W. 3 on his side, the witness disappointed the petitioner and denied that he was ever authorised to or did negotiate sale of the premises in question on behalf of the landlord, and that the said Ex. R-27 was in his writing. Petitioner sought and the Court-below granted permission to cross-examine R. W. 3.
3. The application - I A. XI - was thereafter made by the petitioner purporting to invoke provisions of R. 1 of 0. 26 read with S. 151 of the C P. C. and praying that Ex. R-27 and the exemplar writings of R. W. 3 be sent to the handwriting expert, attached to the Forensic Science Laboratory, Bangalore, for comparison and opinion. On this application, the Court-below made an order, which reads:
'With regard to I. A. 11, it is an application for getting the writings in Ex. R-27 with example writing of R. W. 3. R. W. 3 is not a party to case. He was treated as 'hostile' of the respondent. Even if the witness had written Ex. R-27 that would not constitute an admission on the part of the petitioner. Even if R. W. 3 had turned 'hostile' as contended by the respondent, the contents in Ex. R -27 would not be a substantive piece of evidence against the petitioner. That being goes, there is no need to refer the matter to the expert on handwriting. With regard to appraisal of the evidence of R. W. 3, the court itself could examine the record and appreciate things. Hence, the two applications are dismissed.'
The correctness of this order is questioned in this petition.
3-A. From a reading of the order of the Court below, it becomes clear that the learned Civil Judge was of the view that Ex. R-27 was used by the tenant in the course of the cross-examination of R. W. 3 only for the limited purpose of testing the integrity and credit of R W. 3 and to contradict his evidence with reference to previous inconsistent statements allegedly contained in the said Ex. R-27. The conclusion of the learned Civil Judge is consistent with and explicable only on the basis of the view that Ex. R-27 was used only for purposes envisaged in S. 145 of the Evidence Act, in this view of the matter, he held that even if Ex. R-27 were proved for this -purpose, it would not have substantive testimonial value.
4. It is true that under S. 145 of the Evidence Act, a witness may be cross examined as to previous statements made by him in writing and relevant to matters in question; but if it is intended to contradict him by such writing, the witness's attention must, before the writing can be proved, be called to those Parts of it which are to be used for the purpose of contradicting him. This is one of the tests by which the memory and integrity of witness are tried. The two statements are set against each other and a conclusion that the witness has erred in one or the other could without determining which one is reached on the clear Premise that both the statements could not be correct. Quite obviously it is one thing to say that, in view of an earlier statement, the witness is not to be trusted; but an entirely different thing to say that the present testimony is to be disbelieved and the previous statement substituted for it. However, if the witness is a party to the proceedings, the earlier statement to which his attention is drawn, and which if admitted or otherwise Proved, may amount to an admission. The difference between what follows in such circumstances if the witness himself is a party to the proceedings and where he is not a party requires to be kept sharply differentiated. The purpose of contradicting the witness under S. 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a Previous statement used to contradict a witness does not become substantive evidence and mere1v serves the purpose of throwing doubt on the veracity of the witness. (See Bharat singh v. Bhagirathi), : 1SCR606 .
5. It is however conceivable that in a given case the document containing the 'previous statement' used for the purpose of contradicting a witness under Section 145 of the Evidence Act may also otherwise be a piece of substantive evidence. In the present case apart altogether from the aspect that the petitioner tenant by alleging that Ex. R-27 is the act of an agent of the landlord implying thereby that Ex. R-27 is attributable to the landlord as his own statement the petitioner has referred to and relied upon Ex- R-27 as a piece of substantive evidence. Even assuming, as the Court be low assumed, that it was used in cross examination only for the purpose of shaking the credit of R. W. 3 it cannot, be said that Ext. R-27 was only limited to that purpose alone in the case. In either event. it is to be held that it was open to the petitioner to seek to prove the said document in accordance with or in a manner recognised by law. For Ext. R-27 to be a -piece of substantive evidence in the case against the landlord, petitioner has not only to prove that Ex. R-27 was a document in the writing of R. W. 3, but also has to establish further that R. W. 3 an agent and authorised by the landlord and that Ext. R-27 came into existence in the course and exercise of such
Authority by the said R. W. 3.
6. The view of the learned Civil Judge that Ex. R-27 would not be a substantial piece of evidence is the result of a misconception engendered by a view limited to the role of Ex. R-27 in the context of S. 145 of the Evidence Act. The further observation of the Court below that 'Even if the witness had written Ex. R-27, that would not constitute an admission on the part of the petitioner', is again an observation which is premature, to say the I-east. Whether R. W. 3 is an agent of the landlord or not should be pronounced upon only after consideration of the evidence.
7. I am, therefore, of the view that learned Civil Judge was clearly wrong in the order he made on I. A. XI. However, this does not mean that I. A. XI is necessari1v to be granted. The said application purports to be one under R. 1 of 0. 26 of the C. P. C. The Court-below will have to consider which it has obviously not done - whether the provisions of R. 1 of 0. 26, C. P. C. are apposite and whether or not the petitioner-tenant should not examine if he so desires an expert as his own witness, in the ordinary course. All relevant circumstances will have to be borne in mind by the Court below in disposing of. A. XI in order that while petitioner is not deprived of an opportunity to prove Ex. R-27 in accordance with law, there should be no undue delay in the disposal of the proceedings and that an opportunity to prove Ext. R-27 should not become an instrument for further protraction of the proceedings which are already sufficiently old.
8. In the result this revision petition is allowed and the order of the Court below dated 19-1-1976 on 1. A. No. XI set aside and the said application remitted for fresh disposal in accordance with law and in the light of the observations made in the course of this order. The Court below will endeavor to dispose of the main petition expeditiously.
9. As neither the petitioner nor his learned counsel was present to assist the Court in the disposal of the petition, I disallow costs of the petitioner.
10. Revision allowed.