Biswanath Somadder, J.@mdashHeard the learned Advocates appearing on behalf of the parties.
2. This is an application under Article 227 of the Constitution of India directed against an order dated 2nd February, 2007 passed by the learned Civil Judge (Junior Division), lst Court, Chandannagar in Title Suit No. 95 of 2004.
3. By the said impugned order, the plaintiffs petition under Sections 137 and 138 of the Evidence Act was rejected by the learned Court below inter alia with the following observations:
On perusal of the petition, I find that no schedule has been mentioned regarding the questions to be put forth to the witness. Even from the contents of the petition, it cannot be concluded as to what questions are to be put to the witness on recall. The contents of the petition are vague and this petition can not be allowed because of its ambiguity.
Hence, it is
ORDERED
That the petition under Sections 137 and 138 Evidence Act be and the same is rejected on contest.
4. Before proceeding to decide whether the impugned order is sustainable in law or not, in my view the two relevant sections of the Indian Evidence Act, 1872 needs to be looked into. For convenience, Sections 137 and 138 of the Indian Evidence Act are reproduced herein below:
137. Examination-in-chief.-The examination of a witness by the party who calls him shall be called his examination-in-chief.
Cross-examination.-The examination of a witness by the adverse party shall be called his cross-examination.
Re-examination.-The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.
138. Order of examinations.-Witnesses 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.
The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.
Direction of re-examination.-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.
5. From a plain reading of Section 137 read with Section 138 of the Indian Evidence Act, 1872, it appears to me that statute vests an absolute right upon a party to re-examine its witness/witnesses, if the party calling him or her so desires. In fact, the word, ''shall'', wherever it appears in Section 137 and Section 138, in the context of re-examination, should be read as a mandatory expression in the relevant parts of the statute quoted above. The permission of Court is required only for the purpose of introducing a new matter in such re-examination.
6. The learned Advocate appearing on behalf of the petitioner has referred to several judgements with regard to the proposition of law that the right to re-examine is an absolute right, so far as it is directed to explain matters referred to in the cross-examination.
7. In the instant case however, the issue for consideration is whether the learned Court below could have refused permission to the plaintiff to introduce evidence in re-examination, rejecting the prayer for recalling the plaintiff as a witness for the said purpose.
8. On a bare perusal of the relevant extract of the order impugned, it appears that the learned Court below did not at all take into consideration the mandatory expression, ''shall'' in the context of re-examination, as observed hereinabove.
9. The learned Court below has proceeded wholly on the basis that no schedule has been mentioned regarding the questions to be put forth to the witness. The learned Court below after going through the contents of the petition has further observed that from the petition it could not be concluded as to what questions would be put to the witness on recall. Taking this aspect into consideration, the learned Court opined that the petition was vague and the same could not be allowed because of its ambiguity.
10. In my view the learned Court below has failed to take note of the relevant provisions of Section 137 and Section 138 of the Indian Evidence Act, 1872 and also the scheme of the said provisions of law. Section 138 of the Indian Evidence Act was considered by this High Court in a judgement rendered in the case of
The right to re-examine appears to be absolute so far as it is directed to the explanation of matters referred to in the cross-examination. The question of taking the permission of the Court would arise only if new matter is introduced in re-examination and if the occasion so arises for seeking such permission and if new matter is, by the permission of the Court, introduced during re-examination, then the adverse party gets a right to further cross-examine the witness upon the matter which is introduced at the stage of re-examination....
11. This Court in the said judgement further observed as follows:
There is nothing in Section 138 of the Evidence Act to indicate that a party entitled to recall his witness for re-examination is required to spell out in advance to the Court the particular questions which it would be putting to the witness during such re-examination. Indeed, Section 138 gives a statutory right to the party calling a witness to re-examine him after the cross-examination. Such right is however not unlimited. It is qualified to the extent that the re-examination is required to be confined only to the explanation of matters referred to in cross-examination and if new matter is however required to be introduced in re-examination, the party does not have the absolute right to do so. It has to seek the permission of the Court for introducing new matter and if it is allowed, to be introduced by the Court, the adverse party has the right to further cross-examine that witness upon that matter. Section 136 of the Evidence Act empowers the Judge to allow only such evidence to be given as in his opinion, relevant and admissible and in order to ascertain the relevancy of the evidence which a party proposes to give be it during the examination-in-chief or cross-examination or even re-examination, the Judge may ask the party proposing to give such evidence in what manner the alleged fact, if proved, would be relevant and it would then be the duty of the Judge to decide as to its admissibility.
12. Another judgement referred to by the learned Advocate appearing on behalf of the petitioner may be worthwhile to be looked into. The said judgement of the Patna High Court rendered in the case of Hafiz Abdul Halim and Ors. reported in AIR 1941 Patna 362 also takes into consideration inter alia Section 138 of the Evidence Act. The Hon''ble Patna High Court in the said judgement observed as follows:
The Statute however does not contemplate placing any such restriction on the right of re-examination which is conferred by Section 138, Evidence Act, and which it was not in law open to the learned Judge to take away....
13. Finally, a judgement of the Hon''ble Supreme Court cited by the learned Advocate appearing on behalf of the petitioner for the same proposition may be referred to. The said judgement was rendered in the case of
14. The Hon''ble Supreme Court in the said judgement while considering Section 138 of the Evidence Act inter alia observed that the very purpose of re-examination is to explain matters which have been brought down in cross-examination.
15. Taking all these aspects into consideration, I have no hesitation in holding that the learned Court below has not applied the provisions of Section 138 of the Indian Evidence Act, 1872 correctly, in the facts of the instant case. There was no requirement in law, on the part of the petitioner before the learned Court below, to give a schedule of questions to be put forth to the witness in the application filed for recalling the plaintiff as a witness for the purpose of re-examination. The learned Court below need not have, on going through the contents of the petition, come to a conclusion with regard to the questions that were likely to be put to the witness on recall. This aspect has not even been remotely contemplated u/s 138 of the Indian Evidence Act, 1872.
16. For the reasons stated above, the order dated 2nd February, 2007 passed by the learned Court below is set aside and the revisional application stands allowed.
17. The learned Court below is directed to proceed with the matter expeditiously without granting unnecessary adjournments to any of the parties and try and dispose of the suit within a period of eight months from the date of communication of this order.
Urgent xerox certified copy of this order, if applied for, be given to the learned Advocates for the appearing parties on priority basis.
