INTRODUCTORY:

Whether interlocutory application to declare a witness hostile and permit his cross-examination, after concluding the evidence, at the instance of party, at whose instance the witness was called, is maintainable, is the sum and substance of the issue raised in this Civil Revision Petition.

FACTUAL MATRIX:

2. The respondent filed a suit for declaration and permanent injunction. The petitioner was arrayed as first defendant. The suit was contested by the petitioner.

3. Before the Trial Court, the respondent examined P.W.3. The witness was cross-examined by the petitioner on 20 August, 2013. After cross-examination, evidence of P.W.3 was closed. Thereafter, the respondent filed an application in I.A.No.787 of 2013 to declare P.W.3 as hostile and grant him permission for cross-examination. The application was filed on 29 August, 2013.

4. The application was allowed by the learned Trial Judge, in spite of the objection raised by the petitioner. The order dated 06 November, 2013, is the subject matter of this Civil Revision Petition.

SUMMARY OF SUBMISSIONS:

5. The learned counsel for the petitioner contended that the petitioner cross-examined P.W.3 on 20 August, 2013 and closed the evidence. It was only after 9 days, the respondent filed the application to treat P.W.3 as hostile and grant permission for cross-examination. According to the learned counsel, once a witness produced by a particular party is cross-examined by the other side, it is not permissible to file an application, at a later point of time, for permission to cross-examine the witness treating him hostile.

6. The learned counsel for the respondent submitted that the counsel for the respondent was not present during the time of cross-examination of P.W.3. According to the learned counsel, it was only after reading the deposition, that the respondent realized that P.W.3 tendered evidence against his interest and to support the case of petitioner herein. It was only under such circumstances, the respondent filed the application in I.A.No.787 of 2013 to treat P.W.3 as a hostile witness and grant permission for cross-examination.

THE STATUTE:

7. Section 154 of the Indian Evidence Act confers jurisdiction on the Court to permit cross-examination by the party who calls a witness. The provision reads thus:

"154. Question by party to his own witness.-

(1) 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.

(2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness."

8. The provisions of the Evidence Act would show that the chief-examination of the witness would be conducted by the party, at whose instance, the witness was summoned. Thereafter, he would be cross-examined by the adverse party. Section 154 of the Evidence Act is an exception to the general principle that cross-examination would be conducted only by the adverse party. Section 154 of the Evidence Act therefore gives a discretion to the Trial Court. While exercising discretion, the Court must be convinced that the evidence tendered by the witness examined by a party on his side shows an element of hostility or that the witness has resiled from his earlier statement in material particulars. The Court is, therefore, given a wide discretion to decide the question of hostility.

THE PRECEDENT:

9. The Supreme Court in Sat Paul v. Delhi Administration [AIR 1976 SC 294] held that grant of permission to treat a witness as hostile is expedient to extract the truth and to do justice. The Supreme Court observed:

"The discretion conferred by S.154 on the court is unqualified and untrammelled, and is apart from any question of "hostility". It is to be liberally exercised whenever the court from the witness's demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previou