Mr. A.N. Jindal, J.: - The precise question in this petition against the order dated 31.7.2012, passed by the trial court is, “whether the witness, summoned by the petitioner himself, who had refused to accept his signatures on the registered gift deed and the sale deed dated 22.5.2003, could be treated as hostile and suppressing the truth and whether such witness could be declared hostile enabling the petitioner to cross-examine him?”

2. Sense and reasons to contend that the witness was hostile, is the right of the party and to declare the witness as hostile is the satisfaction as well as discretion of the court. A witness is not necessarily hostile because in the process of unfolding the truth he happens to depose something against the party calling him as a witness. It is also a cardinal principle of law that the witness’s primary allegiance is to the truth and not the party calling him. The courts should not casually brand a witness “hostile” or “unfavourable” and should act in their judgment to see whether there is any truth. It is also settled that a witness who, to the satisfaction of the court, is suppressing the truth, could be permitted to be cross examined even during the stage of cross examination. However, the proper stage for dealing with the witness under Section 144 of Evidence Act, for putting any question to him, which might be otherwise in cross examination of the adverse party, is either by that witness while examined-in-chief or re-examined.

3. Before proceeding further, it would be essential to reproduce certain facts of the present case.

“On 14.11.2011, when Sukhwinder Singh DW-11 was called by the defendants-petitioners to prove their gift deeds and sale deeds dated 22.5.2003, to whom the presumption of truth is attached. The witness denied the factum of execution of such documents. However, examination-in-chief of the witness was deferred and the petitioner requested the court to declare the witness as hostile, but the court refused to do so.”

4. Now the interesting question to be determined in this case is, “whether the court could exercise its discretion to declare him hostile and permit the petitioner for cross examination?”

5. The cardinal principle of law is that a witness cannot be asked the leading questions by the party examining him. In this regard Sections 142 and 143 of the Evidence Act reads as under :-

“142. When they must not be asked – Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in a re- examination, except with the permission of the court.

The Court shall permit leading questions as to matters which are introductory or undisputed, or which have in its opinion, been already sufficiently proved.

143. When they may be asked – Leading questions may be asked in cross-examination.”

6. The Evidence Act further provided the situation where the leading questions could be asked. In this regard Section 145 of the Evidence Act needs to be reproduced. Section 145 of the Act reads as under :-

“145. Cross-examination as to previous statements in writing – A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”

7. Section 145 of the Act does not direct the party, who could be permitted to be cross examined qua the leading questions and it does not limit the right of the adverse party to cross examine the witness summoned by the other party. In the normal course, a witness can be cross-examined by the adverse party, but an exception has been made by Section 154 of the Act to permit the cross examination, to the party summoning him. Section 154 of the Act reads as under :-

“154. Question by part