REHANA BEGUM vs MIRZA M. SHAIULLA BAIG

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2005 Supreme(Kar) 322

Karnataka High Court
Rehana Begum - Appellant
Versus
Mirza M.Shaiulla Baig - Respondent
Decided On : 06-02-05
W.P. : 47140 of 2004

Advocates:
BIRDY AIYAPPA, S.G.KRISHNA MURTHY

Headnote:Hostile witness
       INDIAN EVIDENCE ACT, 1872
       Section 154 - Hostile witness - When provisions of the Act, 1872 can be invoked.
       [Ajit J. Gunjal, J]: Section 154 of the Indian Evidence Act would contemplate a situation where a party calling a witness and on examining him discovers that the witness is hostile, he can seek permission of the Court to put questions to him which may be put to him byway of cross-examination. It is no doubt true that whenever a witness is examined on behalf of a person who seeks support from his evidence and if the said witness gives evidence to the detriment of the person who has called him as a witness, the person who has called the witness can cross-examine him. But however, as stated earlier in the said judgment, that situation will arise when there is a positive statement that there is a material departure and the evidence given by the witness is detriment to the person who called him as a witness.
       Cases Referred: Followed: AIR 1969 Mys 12; AIR 1977 SC 170; AIR 1964 SC 1563.
       Hostile witness
       TRIAL PROCEDURE - Hostile witness - When provisions of Indian Evidence Act, 1872 can be invoked.
       [Ajit J. Gunjal, J]: Section 154 of the Indian Evidence Act would contemplate a situation where a party calling a witness and on examining him discovers that the witness is hostile, he can seek permission of the Court to put questions to him which may be put to him byway of cross-examination. It is no doubt true that whenever a witness is examined on behalf of a person who seeks support from his evidence and if the said witness gives evidence to the detriment of the person who has called him as a witness, the person who has called the witness can cross-examine him. But however, as stated earlier in the said judgment, that situation will arise when there is a positive statement that there is a material departure and the evidence given by the witness is detriment to the person who called him as a witness.
       Invocation of the section
       INDIAN EVIDENCE ACT, 1872
       Section 154 - Invocation of - When provisions of the section can be involved.[Ajit J. Gunjal, J]: Section 154 of the Indian Evidence Act would contemplate a situation where a party calling a witness and on examining him discovers that the witness is hostile, he can seek permission of the Court to put questions to him which may be put to him byway of cross-examination. It is no doubt true that whenever a witness is examined on behalf of a person who seeks support from his evidence and if the said witness gives evidence to the detriment of the person who has called him as a witness, the person who has called the witness can cross-examine him. But however, as stated earlier in the said judgment, that situation will arise when there is a positive statement that there is a material departure and the evidence given by the witness is detriment to the person who called him as a witness.
       INDIAN EVIDENCE ACT, 1872 - Invocation of the Section - Section 154 - Invocation of - When provisions of the section can be involved. [Ajit J. Gunjal, J]: Section 154 of the Indian Evidence Act would contemplate a situation where a party calling a witness and on examining him discovers that the witness is hostile, he can seek permission of the Court to put questions to him which may be put to him byway of cross-examination. It is no doubt true that whenever a witness is examined on behalf of a person who seeks support from his evidence and if the said witness gives evidence to the detriment of the person who has called him as a witness, the person who has called the witness can cross-examine him. But however, as stated earlier in the said judgment, that situation will arise when there is a positive statement that there is a material departure and the evidence given by the witness is detriment to the person who called him as a witness.
       Cases Referred: Followed: AIR 1969 Mys 12; AIR 1977 SC 170; AIR 1964 SC 1563.
       Hostile witness
       PRACTICE AND PROCEDURE - Hostile witness - When provisions of Indian Evidence Act, 1872 can be invoked.
       [Ajit J. Gunjal, J]: Section 154 of the Indian Evidence Act would contemplate a situation where a party calling a witness and on examining him discovers that the witness is hostile, he can seek permission of the Court to put questions to him which may be put to him byway of cross-examination. It is no doubt true that whenever a witness is examined on behalf of a person who seeks support from his evidence and if the said witness gives evidence to the detriment of the person who has called him as a witness, the person who has called the witness can cross-examine him. But however, as stated earlier in the said judgment, that situation will arise when there is a positive statement that there is a material departure and the evidence given by the witness is detriment to the person who called him as a witness.

( 1 ) THE facts leading to the present petition can be summarised as follows : the petitioner is the plaintiff. O. S. No. 8201/1980 is filed by her for declaration and consequential relief of injunction and also to re-open the Judgment and decree passed in O. S. No. 290/1975. A copy of the plaint thereof is produced at Annexure-A. The reason for instituting such a suit is not required to be stated for disposing of this petition. Suffice it to say that O. S. No. 290/1975 was filed by the petitioner herein and respondent no. 6 - Rizavane Begum. Mr. Narasimha murthy was the learned counsel who was appearing for the defendants in the said suit. Respondent No. 7 who is none other than the sister of petitioner filed a suit in O. S. No. 7804/1980, for an identical relief to avoid compromise decree/in O. S. No. 290/ 1975. In the Said suit, i. e. O. S. No. 7804/ 1980, Mr. Narasimha Murhy, who was appearing for the contesting defendants in O. S. No. 290/1975 retired from the proceedings and was examined as D. W, 2 and he supported the defendants and also the compromise decree passed in O. S. No. 290/1975. It is also not disputed that the said suit was dismissed and the judgment and decree passed in O. S. No. 290/1975 is confirmed as respondent No. 7 cannot avoid such a decree as she was party to the proceedings. When the present suit instituted by the petitioner is pending trial, an application IA no 21 is filed by the petitioner under sections 137 and 154 of the Indian Evidence act seeking permission of the Court to put such questions to the said witness as adverse party would put in a cross-examination as contemplated under Section 154 of the Evidence Act. In the said application though the provisions of the Indian Evidence act, viz. , Section 137 and Section 154 were invoked, the said application was resisted by the defendants, inter-alia, contending that the said witness viz. , Mr. Narasimha murthy having not been examined and that he had been turned hostile, the applications invoking Sections 137 and 154 are not maintainable and at best would be termed as premature. The learned Trial Judge has accepted the said contention and was of the opinion that in the absence of any evidence which would run contrary to the interest of the plaintiff/petitioner, the question of invoking Section 154 in the present set of circumstances cannot be accepted and has rejected the said application, as against which the present petition is filed. The impugned order is produced at Annexure-D.

( 2 ) SMT. Birdy Aiyappa, learned counsel appearing for the plaintiff-petitioner would contend that the circumstances in which the petitioner is placed, there is every apprehension that Mr. Narasimha Murthy, Counsel appearing for the defendants in the earlier proceedings would not support her case. Apprehending such hostility, the present application under Section 154 was filed so as to put such questions which are normally put to a party in a cross-examination by an adverse party. She would further submit that mr. Narasimha Murthy having given evidence on behalf of the defendants in the earlier suit filed by petitioner's sister viz. R. 7, mr. Narasimha Murthy supporting her case is remote. In the circumstances, there is every justification for allowing the said application.

( 3 ) SRI S. G. Krishna Murthy, appearing for the respondents would submit that in the absence of any evidence that he may turn hostile, the question of the plaintiff-petitioner invoking Section 154 does not arise at all. The sum and substance is that the learned Trial Judge was justified in rejecting the application.

( 4 ) THE only question which requires to be addressed in this petition is whether the application filed by (he plaintiff petitioner invoking Section 154 of the Evidence Act is justifiable?

( 5 ) SECTION 154 of the Indian Evidence act reads as under : the Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross- examin

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2005 Supreme(Kar) 322

Karnataka High CourtRehana Begum - AppellantVersusMirza M.Shaiulla Baig - RespondentDecided On : 06-02-05W.P. : 47140 of 2004

Karnataka High Court
Rehana Begum - Appellant
Versus
Mirza M.Shaiulla Baig - Respondent
Decided On : 06-02-05
W.P. : 47140 of 2004