Skip to content


Ammathayarammal Vs. the Official Assignee - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported inAIR1933Mad137; (1933)64MLJ208
AppellantAmmathayarammal
RespondentThe Official Assignee
Cases ReferredBradley v. Ricardo
Excerpt:
- - srinivasa aiyangar who appeared for the defendants in the course of his argument condemned the procedure already referred to. i am aware that, as between two ordinary litigants, such a method of procedure has been strongly condemned by the judicial committee. and if he be astute as well as treacherous, he will take care to conceal his true sentiments from the court. this is not a very good -definition of a hostile witness and the indian evidence act is most careful in section 154 not to restrict the right of 'cross-examination' even by committing itself to the word 'hostile'.11. on page 1433 buckland, j. the common law procedure act of 1854 settled what had been the subject of varying decisions for many years by providing that a party producing a witness shall not be allowed to.....horace owen compton beasley, c.j.1. the 1st defendant in the suit under appeal is an insolvent and the 2nd defendant is his wife. the official assignee claimed in the suit a declaration that three houses, the title deeds of which stand in the name of the insolvent's wife, the 2nd defendant, were in reality the property of the insolvent who paid for them. the defendants on the other hand contended that the insolvent's wife was the actual buyer and that all the money required came from her pocket with the exception of l/6th of the price of one of the houses.2. it is not necessary at this stage to go into any of the facts of the case because an objection has been taken, which we are dealing with as a preliminary objection, to certain procedure adopted at the trial. the official assignee.....
Judgment:

Horace Owen Compton Beasley, C.J.

1. The 1st defendant in the suit under appeal is an insolvent and the 2nd defendant is his wife. The Official Assignee claimed in the suit a declaration that three houses, the title deeds of which stand in the name of the insolvent's wife, the 2nd defendant, were in reality the property of the insolvent who paid for them. The defendants on the other hand contended that the insolvent's wife was the actual buyer and that all the money required came from her pocket with the exception of l/6th of the price of one of the houses.

2. It is not necessary at this stage to go into any of the facts of the case because an objection has been taken, which we are dealing with as a preliminary objection, to certain procedure adopted at the trial. The Official Assignee called the insolvent, the 1st defendant in the suit, in support of his case. Whilst he 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. Objection is taken that Mr. Grant cross-examined his own witness. This, it is contended by the appellant, he was not entitled to do unless (1) the witness first showed himself to be hostile, and (2) leave of the Court to put such questions to him had been obtained. It is objected, first, that the witness did not show himself by his demeanour to be hostile; and, secondly, if he did, the consent of the Court to cross-examine him was never obtained. There is nothing on the record of evidence to show that any submission was ever made to the Trial Judge that the witness was hostile and that leave was sought to cross-examine him. Mr. Grant quite fairly says that he has no recollection of ever having made any such submission. It is equally clear that no objection to the procedure adopted by the learned Counsel for the Official Assignee was taken by his opponent. From the concluding-passage in the learned Trial Judge's judgment it would appear that Mr. Srinivasa Aiyangar who appeared for the defendants in the course of his argument condemned the procedure already referred to. The learned Trial Judge deals with Mr. Srinivasa Aiyangar's argument on this point and states as follows:

I am aware that, as between two ordinary litigants, such a method of procedure has been strongly condemned by the Judicial Committee. The Official Assignee stands in a different and frequently a very embarrassing position. He represents the estate of the insolvent, who is usually colluding with transferees against his creditors. The insolvent, in such a case, has to be made a party. The Official Assignee must examine him as a witness, for there are certain things that only he can speak to, but it would be absurd to treat him as having been put forward as a witness of truth, by all of whose statements the Official Assignee is bound. In this case the insolvent had to be examined to admit the correctness of his banking account and the fact that all the money for the houses came out of it. Beyond that, everything he wanted to say was in favour of his wife and I can see nothing improper in allowing the Official Assignee to cross-examine him in order to show that his evidence, in other respects, was not to be accepted and to elicit admissions from him that were inconsistent with his support of his wife.

3. What, in my view, is to be understood by these observations is (1) that no objection was taken to Mr. Grant cross-examining his own witness by Mr. Srinivasa Aiyangar while the witness was in witness-box, and (2) that the Trial Judge did not interfere but allowed the cross-examination to go on. What is quite clear is that, if Mr. Srinivasa Aiyangar had objected to this procedure or Mr. Grant had asked for permission to adopt it, Waller, J. would have disallowed the objection and allowed Mr. Grant to cross-examine the witness for the reasons he has stated.

4. Three questions arise here: (1) Before the party calling the witness can cross-examine him, is it necessary that the witness should first of all be declared to be hostile, or can such questions be allowed by the Court to be asked even though the witness does not show himself to be hostile? (2) Is it necessary that, before they are asked, the leave of the Court should be asked for and obtained? and (3) What is the effect of such an examination of the witness on the testimony of that witness; should the whole of his evidence be discarded or is it open to the Court to accept some of it and discard the rest ?

5. The meaning of Section 154 of the Indian Evidence Act has to be considered. That provides 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.

6. For the respondent, the Official Assignee, it is argued that that section gives the Court an unfettered discretion and that the exercise of that discretion is not therefore dependent upon the hostile demeanour of the witness; and furthermore it is argued that it is not necessary that the leave of the Court to put such questions to the witness should be obtained because the words used are 'the Court may...permit...' It is argued that this permission need not be expressed in words and that, if no objection is raised by the opposite side and the Court does not interfere with the cross-examination, the permission of the Court is to be implied. It is further argued that the effect of a party cross-examining his own witness is not to cause general discredit to be cast upon the witness and that it is open to the Court to attach such weight to the evidence of the witness so dealt with as it thinks right.

7. With regard to the first question raised, it must be observed that in practically all the cases cited the witness had been shown to be a hostile witness so that no question arose as to the limits of the Court's discretion. There are, however, two cases which actually do consider this question and one of them is a decision by which we are bound. That is the decision of the Privy Council in Baikuntha Nath Chattoraj v. Prasannamoyi Debya (1922) 44 M.L.J. 699 (P.C). The judgment of the Judicial Committee was delivered by Sir Lawrence Jenkins and on page 701 he says:

Nagendra Nath Ghose does not support the proponent's case, for in his examination-in-chief he declared that he did not know whether Mandakini executed any will, and that it was to a blank paper that he put his signature at the request of Ram Lal Gosain. An application was therefore made to the District Judge to declare the witness hostile and to allow the proponent to cross-examine him This is a position for which provision is made by Section 154 of the Evidence Act, which says nothing as to declaring a witness hostile but provides 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. One of the Appeal Court's adverse comments on the Trial Judge's conduct of the case is that cross-examination of this witness was improperly disallowed. No such objection was made in the grounds of appeal to the High Court, and it would seem as though this comment must have been made without the Court's attention being drawn to that portion of the order sheet in which the District Judge remarks, as the record of the deposition indicates, that the witness was virtually cross-examined, though the Judge in fact did not think he had turned hostile.

8. It is this case which supports the following view expressed on page 974 of the 8th Edition of Woodroffe and Ameer Ali on Evidence:

It can, therefore, be hardly said in this state of the authorities, especially in India where the words of Sections 154 and 155 are alone to be considered that it is a settled rule that it is only when a witness manifestly shows a hostile personal feeling by his conduct and demeanour that the Court ought to allow his cross-examination and impeachment. The testimony of a witness, if adverse, is only the more dangerous if he shows no hostile disposition; and if he be astute as well as treacherous, he will take care to conceal his true sentiments from the Court.

9. The other case is Praphulla Kumar Sarkar v. Emperor I.L.R. (1931) 58 Cal. 1404. This was a decision of a Full Bench of five Judges. The facts of the case are that one of the prosecution witnesses was declared hostile and permission was given to the Public Prosecutor to cross-examine him. In his charge to the jury the Judge said:

Maniruddin has deposed in favour of the defence story. This witness has been declared 'hostile' and cross-examined by the prosecution. His evidence has, therefore, to be excluded from your consideration.

10. I shall refer to this case again when I come to deal with the question whether such testimony has to be excluded from the consideration of the Court. I have referred to this case, however, because of the observations of the Full Bench upon the meaning of Section 154 of the Evidence Act. On page 1424 Rankin, C. J., says:

Now it is true that in Coles v. Coles (1866) L.R. 1 P. & D. 70, and it may be in other cases, a hostile witness has been described as a witness who from the manner in which he gives his evidence shows that he is not desirous of telling the truth to the Court. This is not a very good -definition of a hostile witness and the Indian Evidence Act is most careful in Section 154 not to restrict the right of 'cross-examination' even by committing itself to the word 'hostile'.

11. On page 1433 Buckland, J., says:

As a practical matter, therefore, Section 154 refers exclusively to cross-examination of a witness by the party calling him. We are not asked to state the circumstances in which the Court may exercise its discretion in favour of the party seeking to cross-examine, and indeed it would be impossible to formulate any comprehensive rule. One observation, however, is permissible. The object of calling a witness is to elicit the facts and if the facts to be elicited are such as ought to be elicited from a witness, and if this cannot be elicited without cross-examining him, it would be difficult to say that the discretion was wrongly exercised.

12. In this case the judgment of the Judicial Committee in Baikuntha Nath Chattoraj v. Prasannamoyi Debya (1922) 44 M.L.J. 699 (P.C) is not referred to, but the same view of the scope of Section 154 of the Evidence Act is taken both by Rankin, C. J., and Buckland, J.

13. In England the law is different upon the point. The Common Law Procedure Act of 1854 settled what had been the subject of varying decisions for many years by providing that

a party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may, in case the witness shall in the opinion of the Judge prove adverse, contradict him by other evidence or by the leave of the Judge, prove that he has made at other times a statement inconsistent with the present testimony; but before such last-mentioned proof can be given, the circumstances of the supposed statement sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such a statement.

14. In England, therefore, the exercise of the discretion of the Court is conditional on the adverse demeanour of the witness, whereas Section 154 of the Indian Evidence Act gives an unqualified discretion to the Judge apart from any question of the hostility or otherwise of the witness. In the opinion of the Referring Judges in Praphulla Kumar Sarkar. v. Emperor I.L.R. (1931) 58 Cal. 1404 the reason why the Court in India is given a much wider discretion than in England is in all probability to avoid the conflict which had existed in England over the words 'hostile' and 'adverse'. The first question raised must, in my view, be answered in the negative.

15. I now turn to the consideration of the question as to whether permission of the Court must be asked for. Upon this point there is an entire absence of authority which is not at all surprising. Instances where the procedure apparently adopted in this case, namely, the cross-examination of the party's own witness without the leave of the Court being obtained and without objection made by the opposite party and without the express approval of the Court, must indeed be rare. In every case to which reference has been made upon the questions under consideration, so far I am able to see, the leave of the Court to cross-examine the witness had either been granted or refused. In the case under appeal it would seem that the learned Trial Judge assumed from the very nature of the position in which the insolvent stood towards the Official Assignee that the witness was bound to be hostile, a perfectly reasonable assumption; but it is extremely doubtful whether the law in England allows a party to cross-examine a witness for that reason only and indeed there are decisions to the contrary such as Price v. Manning (1889) 42 Ch. D. 372. In that case it was held that a party to an action who calls an opponent as a witness has no right to cross-examine him, however hostile he may be, without the leave of the Judge and that whether the witness is a litigant or not, it is a matter of discretion in the Judge whether he shows himself so hostile as to justify his cross-examination by the party calling him. In this case, Cotton, Fry, and Lopes, L. JJ., in effect overruled the decision of Best, C. J. in Clarke v. Saffery (1824) 27 R.R. 736 : 171 E.R. 966, where Best, C. J., said:

There is no fixed rule which binds the counsel calling a witness to a particular mode of examining him. If a witness, by his conduct in the box, shows himself decidedly adverse, it is always in the discretion of the Judge to allow a cross-examination; but if a witness called, stands in a situation which of necessity makes him adverse to the party calling him, as is the case here, the counsel may, as a matter of right, cross-examine him.

16. Reported on page 737 of the same report there is the case of Bastin v. Carew where a similar objection was taken, and a cross-examination of an adverse witness allowed. Abbot, C. J., said:

I mean to decide this and no further, that in each particular case there must be some discretion in the presiding Judge as to the mode in which the examination shall be conducted, in order best to answer the purposes of justice.

17. Price v. Manning (1889) 42 Ch. D. 372 at any rate states that the rule is that it is a matter of discretion of the presiding Judge whether the witness has shown himself so hostile as to justify his cross-examination by the party calling him. This decision and Section 22 of the Common Law Procedure Act of 1854 seem to me to show that, even where a party puts his opponent into the witness-box, the Court will only exercise its discretion and allow him to be cross-examined if he shows himself to be hostile. Although Section 154 of the Indian Evidence Act gives the Court an unfettered discretion to allow cross-examination of a witness by the party calling him, in my opinion, it ought not to exercise its 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. That section does not, in my opinion, entitle any party for instance to say 'I pro-pose to call my opponent and cross-examine him' and the Court to allow such cross-examination without anything more. It seems to me that the scheme of the section is that something more than the mere position in which the witness stands to the party calling him is required before the Court can exercise its discretion. In my opinion, therefore, it is necessary before the procedure of Section 154 can be adopted either for the permission of the Court to be obtained or for it to be given by the Court without its being sought. In this case, as already stated, it must be taken that no such permission was sought nor was it in words given. But Mr. Grant argues that all that the section requires is tacit permission and that, if the Court does not interfere, it must be taken to have assented to that procedure. He contrasts the word 'permit' in Section 154 with the word 'consent' in Section 155. His contention is that the two words are used in a different sense and that the consent of the Court required in the latter section must be given as a result of a request made: to it, whereas the use of the word 'permit' in. the former section shows that even a tacit consent is intended. There is much force in this argument because the use of the word 'permit' in one section and the word 'consent' in the next section makes it probable that it was not intended that these words were to have the same meaning. 'Consent' seems to me to imply that it is to be given in consequence of a request made, whereas 'permission' need not necessarily follow a request. This, however, does not entirely solve the difficulty because we have still to consider whether it is necessary for the Court to express its-permission in words. In my view, it is intended by Section 154 that such a permission should be signified, if not in words, by some other action of the Court indicating its permission during the cross-examination of the witness by the party calling him. But there is another section of the Indian Evidence Act to be considered in this connection and that is Section 142. It is contended by Mr. Grant that, quite apart from 154, Section 142 allows a cross-examination by a party of his own witness during that witness's examination-in-chief without the permission of the Court if no objection is taken to it by the adverse party. That section is as follows:

Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in a re-examination, except with the permission of the Court. The Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved.

18. In my view, this section is intended to provide for cases different to those contemplated by Section 154. Section 142 refers merely to leading questions; Section 154 refers to questions which might be put in cross-examination by the adverse party. A question put in a leading form is not necessarily tantamount to cross-examination, whereas most questions in cross-examination are leading questions. The distinction between the object of these two sections, to my mind, is that Section 154 provides for the cross-examination of the witness by the adverse party for the purpose of contradicting answers given by the witness or to test the witness's veracity or to drag the truth from him. Section 142, to my mind, clearly does not deal with such a case. It merely deals with leading questions as defined by Section 141, vis., questions suggesting the answer which the person putting them wishes or expects to receive. It cannot be imagined that the legislature had in view any questions to which it is obvious objection must be taken by the adverse party. I do not think that Section 142 assists the respondent's argument. In my opinion, the procedure adopted in this case was not warranted by Section 154 of the Evidence Act, because Waller, J. did not signify his permission at any time during the cross-examination because I do not think that Section 154 means tacit permission. But it is clear that, had permission been 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 Trial Judge.

19. I have now to consider whether the whole of the evidence of the witness has to be rejected or not. Reliance is placed by the appellant on Faulkner v. Brine (1858) 1 F. & E. 254 : 175 E.R. 715. The head-note of that case is as follows:

The defendant's counsel stating, after calling and examining a witness, that he had given another and materially different account of the transaction to the defendant's attorney, the Judge allowed the witness to be asked if they were so, and to be dealt with as adverse, under the, Common Law Procedure Act, 1854, Section 23, but only with a view to discredit him generally, and this it will not do if it is not utterly inconsistent with his sworn evidence.

20. The case was tried by Lord Campbell, C.J., who allowed the question to be put stating

It must be understood that it must be done to discredit the witness altogether, and not merely to get rid of part of his testimony. If that which is suggested shall be elicited it will show that he is not trustworthy at all.

21. In Alexander v. Gibson (1811) 2 Camp. 555 : 170 E.R. 1250 Lord Ellenborough says:

If a witness is called on the part of the plaintiff, who swears what is palpably false, it would be extremely hard if the plaintiff's case should for that reason be sacrificed. But I know of no rule of law by which the truth is on such an occasion to be shut out, and justice is to be perverted. In Lowe v. Jolliffe (1762) 1 Bl. W. 365 : 96 E.R. 204, which turned on the validity of a will, all the attesting witnesses swore to the insanity of the testator when the will was executed; but they were contradicted by other evidence, and the will was established. The party is not to set up so much of a witness's testimony as makes for him, and to reject or disprove such part as is of a contrary tendency. But if a witness is called, and gives evidence against the party calling him, I think he may be contradicted by other witnesses on the same side, and that in this manner his evidence may be entirely repudiated.

22. Alexander v. Gibson (1811) 2 Camp. 555 : 170 E.R. 1250 was referred to in Panchanan Gogai v. Emperor I.L.R. (1930) 57 Cal. 1266 to support the position that, where a witness turns hostile and is cross-examined by the party calling him, the evidence of such a witness cannot in part be relied upon and the rest of it discarded or rejected. It is there pointed out that Alexander v. Gibson (1811) 2 Camp. 555 : 170 E.R. 1250 has been followed ever since 1811 and that in only one case, Bradley v. Ricardo (1831) 131 E.R. 321 : 8 Bing 57, it was not followed. But in Bradley v. Ricardo (1831) 131 E.R. 321 : 8 Bing 57, however, it was held that where a party, being surprised by a statement of his own witness, calls other witnesses to contradict him as to a particular fact, the whole of the testimony of the contradicted witness is not, therefore, to be repudiated by the Judge, and Alexander v. Gibson (1811) 2 Camp. 555 : 170 E.R. 1250 was referred to. The case was heard in the Common Pleas by Tindal, C. J., Gaselee, Bosanquet and Alderson, JJ., whose judgments are very fully set out by the referring judges in their order of reference to the Full Bench in Praphulla Kumar Sarkar v. Emperor I.L.R. (1931) 58 C. 1404. Tindal, C. J., stated:

The general rule is, that a party shall not be permitted to blast the character of a witness called in support of his case by adducing general evidence to his discredit; but I have never heard it said that, when surprised by a statement contrary to the fact, he may not call another witness to show how the fact really is.

23. In the opinion of Gaselee, J., Alexander v. Gibson (1811) 2 Camp. 555 : 170 E.R. 1250 went too far and he disagreed with Lord Ellenborough. Bosanquet, J., stated that the practice had always been contrary to that' adopted in Alexander v. Gibson (1811) 2 Camp. 555 : 170 E.R. 1250 and Alderson, J., dissented from Lord Ellenborough and also stated that the case of Lowe v. Jolliffe (1762) 1 Bl. W. 365 : 96 E.R. 204 referred to by Lord Ellenborough in his judgment established the contrary of the proposition for which it was cited. I do not think that Alexander v. Gibson (1811) 2 Camp. 555 : 170 E.R. 1250 or Faulkner v. Brine (1858) 1 F. & F. 254: 175 E.R. 715 can be relied upon by the appellant. With regard to the latter case, as Rankin, C. J., points out in Praphulla Kumar Sarkar v. Emperor I.L.R. (1931) 58 C. 1404, Lord Campbell is not reported to have told the jury that, because he had allowed the questions to be put, the defendant could not rely at all upon the evidence of the witness nor that the cross-examination of a hostile witness by permission of the Court must always be cross-examination to destroy the general credit of the witness, but that his observation was a common sense observation for the benefit of the jury and as a warning to counsel of the risk he ran. In Praphulla Kumar Sarkar v. Emperor I.L.R. (1931) 58 C. 1404 this question has been very fully dealt with by a Full Bench of five Judges of that Court. I have already referred to this case for another purpose. It was there held that the fact that a witness is dealt with under Section 154 of the Indian Evidence Act, even when under that section he is cross-examined as to credit, in no way warrants a direction to the jury that they are bound in law to place no reliance on his evidence or that the party who called and cross-examined him or any other party can take no advantage from any part of his evidence and that there is no rule of law that, if a jury thinks that a witness has been discredited on one point, they may not give credit to him on another. I entirely agree with the decision in this case and with the reasoning in the judgments of Rankin, C. J. and Buckland, J. It is in all cases a question for the jury or for the Judge in a civil case to decide what weight is to be given to the testimony of a witness so dealt with and I cannot accede to the contention put forward by the appellant that a different principle is to be applied in such matters when the testimony is being considered by a Judge alone. In one case the jury are the judges of fact and in the other the Judge alone is, and it is for the jury in the one case and the Judge in the other to attach such weight as is right to that evidence. In my opinion, therefore, Waller, J., was entitled to accept or reject such parts of the evidence of the 1st defendant as he did, although I do not agree with the procedure allowed by Waller, J., in this case. Whatever may be the reasons for the exercise of its discretion by the Court under Section 154, first of all 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 it ought not to be interfered with by the Appellate Court.

Cornish, J.

24. I am of the same opinion. The learned Trial Judge says at the close of his judgment that he allowed the witness to be cross-examined, and he gives as his reason that the witness was endeavouring by his evidence to help the case of his wife, the opposite party. In other words, the learned Judge appears to have thought that the witness had shown himself to be adverse to the party who called him. But nowhere does it appear that permission to cross-examine the witness on that ground was actually given. There is no doubt that the correct procedure when a party is desirous of cross-examining his own witness it is for him to formally ask for and obtain the Court's permission. The expediency at least of this course is clear; for, unless the Court is given the opportunity of considering whether on the material before it the cross-examination should be permitted, how is it to exercise a discretion? And a cross-examination which has taken place without it appearing that the Court had considered whether it should be permitted would be altogether irregular. Mr. Grant has contrasted the word 'permit' in Section 154 with the word 'consent' in Section 155, and contended that permission means no more than sufferance, so that it would be sufficient if the Court signified its permission by acquiescence. I do not think it could as a matter of course be assumed simply because it appeared from the record that a witness's examination-in-chief has developed into cross-examination without objection from the Court or opposite party that the Court had exercised its discretion in permitting the cross-examination. It must somehow be shown that the Court did in fact exercise its discretion in the matter: in the present case it appears so from the judgment.

25. A considerable argument was addressed to us on the scope of Section 154. The section differs from the corresponding provision in the English Act, 28 and 29 Vic, c. 18, which makes it a condition for leave to cross-examine that 'the witness in the opinion of the Judge prove adverse'. As pointed out by their Lordships of the Judicial Committee in Baikuntha Nath Chattoraj v. Prasannamoyi Debya (1922) 44 M.L.J. 699 (P.C) Section 154 says nothing about a witness being hostile. It seems to me undesirable, as well as unnecessary, to attempt to define the limits within which the Court's discretion can be exercised under Section 154 when the section itself imposes none. But this much may be said with reference to the particular case before us; that a party who chooses to call his opponent as a witness, or who may by force of circumstances be compelled to take this course, as apparently the Official Assignee was here, in order to prove his case, does not on that account become entitled to treat his witness as hostile and to cross-examine him. The Court must in its discretion determine whether cross-examination of the witness shall be permitted. That was the rule laid down by the Court of Appeal in Price v. Manning (1889) 42 Ch. D. 372, and it is equally applicable to Section 154: see Luchiram Motilal Boid v. Radha Charan Poddar I.L.R. (1921) 49 Cal. 93.

26. The cross-examination of the 1st defendant having been permitted by the Court, there remains the question how far is his credit affected. Mr. Venkatarama Sastri's argument, that the cross-examination must be taken to discredit generally the evidence of the witness for the plaintiff, the Official Assignee, is founded upon the observations of Lord Campbell in Faulkner v. Brine (1858) 1 F. & F. 254: 175 E.R. 715, which have been interpreted in two cases in the Calcutta High Court, Khijiruddin Sonar v. Emperor I.L.R. (1925) 53 Cal. 372 and Panchanan Gogai v. Emperor I.L.R. (1930) 57 Cal. 1266 as authority for the proposition for which the learned Advocate has contended. This is not the view accepted in Emperor v. Jehangir Ardeshir Cama : AIR1927Bom501 and in Sohrai Sao v. King-Emperor I.L.R. (1929) 9 Pat. 474 and moreover in Praphulla Kumar Sarkar v. Emperor I.L.R. (1931) 58 Cal. 1404. Rankin, C. J., expressed the opinion that Lord Campbell's words should not be understood as meaning that the cross-examination of a witness as adverse must always destroy the general credit of the witness. This consequence, it is to be observed, does not flow from calling another witness to contradict what the witness has said: vide Bradley v. Ricardo (1831) 131 E.R. 321 : 8 Bing 57. In that case it was said by Bosanquet, J.:

A party is often compelled to call an adverse witness; and if he, on cross-examination or otherwise, makes statements inconsistent with fact, another witness may be called to contradict him; and there is no instance of a Judge having been called upon in such a case to strike out the rest of his evidence.

27. There seems to me no reason why different considerations should govern the case of a witness cross-examined by the party who has called him. It is not an implication that a party when he cross-examines a witness thereby intends to discredit his evidence in toto; the cross-examination may be directed only to overthrowing certain parts of his evidence; and a Court or a jury is not bound to entirely disbelieve a witness because a portion of his testimony has been discredited in cross-examination. In my opinion, therefore, the cross-examination of the 1st defendant is not to be taken as a total repudiation of his evidence by the Official Assignee who called him as a witness.

28. [The above appeal again came on for hearing on 3rd March, 1932 and their Lordships agreed with the Trial Court in holding that the several transactions were benami and must be set: aside.]


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //