The right to cross-examine summoned witnesses is circumscribed when the availability of defense is limited, and further cross-examination beyond the scope of the suit or record is impermissible.

JUDGMENT

Tushar Rao Gedela, J. (Oral)

[The proceeding has been conducted through Hybrid mode]

1. The petitioner challenges the orders dated 12.03.2018 and 31.05.2018 passed in CS DJ ADJ 99/2016 (16164/2016) titled 'Sharons Link Logistics vs. UNI Trade Logistics' whereby the learned Trial Court had permitted the respondent/defendant to cross-examine the summoned witnesses namely PW-2 and PW-3 appearing on behalf of two different banks.

2. Mr. Pranav Sapra, learned counsel for the petitioner submits that an objection under Section 139 of the Indian Evidence Act, 1872 (in short "Evidence Act") was raised before the learned Trial Court while the PW-3 Mr. Anupam Kamal, Service Manager, Kotal Mahindra Bank and PW-2 Mr. Manik Vishwakarma, Deputy Manager, ICICI Bank, Vasant Vihar, New Delhi were being examined and cross-examined.

3. Learned counsel submits that the provisions of Section 139 of Evidence Act are very clear, in that, the summoned witnesses from whom the production of documents is sought, are not witnesses as understood in the ordinary parlance and therefore cannot be put to cross- examination by the other side.

4. Learned counsel further submits that the part cross-examination which was conducted by the respondent/defendant at page 22 establishes that the respondent is going beyond the circumscription as stipulated in Section 139 of the Evidence Act. Learned counsel submits that despite the aforesaid objection on this aspect, the learned Trial Court overruled the said objection and permitted the respondent/defendant to cross- examine the aforesaid witnesses beyond the legal stipulation.

5. Learned counsel submits that a plain view of the cross- examination that was conducted, appears to be an attempt to elicit information which was not subject matter either of the suit or even of the record which was brought by the summoned witnesses.

6. Learned counsel for the petitioner/plaintiff also contends that it is an admitted fact that the respondent/defendant did not file their written statement and the right to file written statement was struck off. On that basis learned counsel submits that the scope of the cross-examination in any case was extremely limited.

7. On that basis, learned counsel submits that the impugned order ought to be quashed and set aside.

8. Per Contra, Mr. Varun Singh, learned counsel appearing for the respondent/defendant submits that the entitlement and the right of the respondent/defendant, though the right to file written statement was struck off, cannot be curtailed inasmuch as it is an indelible right available to the defendant to elicit truth from the witnesses who are brought on record by the petitioner/plaintiff.

9. Learned counsel further submits that the purport of Section 139 of Evidence Act could not be to curtail the rights given to parties to ensure that there is a fair trial being conducted.

10. Learned counsel further submits that questions that were being across put to the witnesses were only in respect of the documents that were produced and not beyond those documents.

11. Mr. Singh further submits that it was only to elicit the truth of the contents of the documents itself that further questions were required. On that basis, learned counsel submits that the permission granted by the learned Trial Court in permitting the respondent/defendant to continue with the cross-examination was in accordance with law and no illegality or judicial impropriety has been committed. Learned counsel submits that the impugned orders are sustainable in law.

12. Learned counsel for the respondent/defendant draws attention of this Court to the account opening form of the petitioner firm - M/s. Sharons Link Logistics to submit that the documents filed on record by the respondent, before this Court alongwith the counter affidavit shows that the Proprietor of the Link Logistics is Ms. Madhu Verma, who is stated to be wife of Mr. Manish Verma, who has purportedly shown himself as the Proprietor of