S.P. GARG, J.

IA No.2912/2014 (u/S 154 Evidence Act)

1. The plaintiff has instituted the instant suit for possession, prohibitory permanent injunction and mesne profits against the defendants. Issues were settled by an order dated 16.10.2008. On 22.11.2013 before the Local Commissioner, the plaintiff examined Dr.Rajiv Agarwal (PW-5) who proved photocopy of the medical certificate dated 26.12.2005 (Ex.PW-1/5) issued by him. In the cross-examination, Dr.Rajiv Agarwal was confronted with another certificate/document dated 01.08.2006 issued by him. It was exhibited as Ex.PW-5/D-1. The witness was cross-examined on 22.11.2003 and 21.01.2014. At that stage, learned counsel for the plaintiff sought to cross-examine Dr.Rajiv Agarwal on document Ex.PW5/D-1 and it was objected to by the defendants”counsel. Since the learned Local Commissioner was not competent to do so, necessary permission was asked to be taken from the court.

2. The instant IA has been filed by the plaintiff to seek permission of the court to recall and cross-examine PW-5 (Dr.Rajiv Agarwal) and to put questions to him under Section 154 of the Evidence Act. Contesting it, the defendants have stated that the application is an abuse of the process of the court and deserves to be dismissed. The plaintiff intends to seek permission to cross-examine his own witness PW5 (Dr.Rajiv Agarwal) which is not permissible. Section 154 Evidence Act is not applicable to the present civil proceedings. It can be availed only in criminal proceedings and that too when the prosecution witness turns hostile. In the instant case PW-5 (Dr.Rajiv Agarwal) did not turn hostile. He has proved the medical certificates issued by him without deviation.

The document (Ex.PW-5/D-1) already on record was in the knowledge of the plaintiff. The witness has given true account and has admitted issuance of both the medical certificates in the discharge of official duties. PW-5 (Dr.Rajiv Agarwal) cannot be considered or taken a “hostile” witness.

3. Learned counsel for the plaintiff urged that PW-5 (Dr.Rajiv Agarwal) requires to be recalled to put questions regarding issuance of subsequent medical certificate (Ex.PW-5/D-1). The plaintiff would not get any opportunity to ask questions from him about the circumstances in which document Ex.PW-5/D-1 was issued as the defendants would not summon him in their evidence to prove the said document.

4. Learned Senior counsel for the defendants vehemently urged that Section 154 Evidence Act is not applicable to civil proceedings. The plaintiff was aware about the existence of document Ex.PW-5/D-1. Despite that, he took a chance to summon PW-5 (Dr.Rajiv Agarwal). He did not bother to ask any question about the issuance of certificate Ex.PW-5/D-1. Both the certificates were issued by PW-5 (Dr.Rajiv Agarwal) and have been proved by him. He cannot be recalled by the plaintiff to cross-examine him. Such a procedure is unknown to law. Reliance has been placed on Rabindra Kumar Dey vs.State of Orissa (1976) 4 SCC 233; Gura Singh vs.State of Rajasthan AIR 2001 SC 330; S.Murugesan vs. S.Pethaperumal AIR 1999 Madras 76 and Sivhamurthy Swamy vs.Agodi Songanno AIR 1969 Kant.12.

5. Admitted position is that PW-5 (Dr.Rajiv Agarwal) was summoned by the plaintiff to prove medical certificate dated 26.12.2005 (Ex.PW1/5) issued by him when Mr.Bishan Avtar Tevary S/o late Shri Chander Bhan Tevary r/o House No.B-45 Soami Nagar, New Delhi was alive and admitted in Batra Hospital & Medical Research Centre. Certificate dated 26.12.2005 was issued during his life time and he was declared “presently not fit to move out of this hospital?. It was further recorded therein that “the treatment is absolutely essential and potentially life saving?. Since this document was issued by Dr.Rajiv Agarwal, the plaintiff had no option but to summon him to prove it in evidence.

6. It appears that Dr.Rajiv Agarwal issued another certificate/document dated 01.08.2006 after Sh.Bishan Avtar Tevary expired