IMPORTANT POINT
Re-examination of witness—Re-examination cannot be used to give a chance to witness to undo statement of witness made in cross-examination and fill in lacunae in evidence.

JUDGMENT (ORAL)

Amit Bansal, J.—This matter has been listed on office noting pursuant to the proceedings before the Local Commissioner on 20th May, 2022 appointed by this Court for recording of evidence.

2. The present suit has been filed seeking to, inter alia, injunct the defendants/occupants from unlawfully entering any part of the first floor including the balcony of Shop No.4/6 on the ground floor of the premises bearing No.4/1-14 (A-1/4), Eleven Style Mile, Ward 1, Mehrauli, New Delhi. Issues were framed in the suit on 02nd August, 2019 and a Local Commissioner was appointed to record evidence of the parties. An initial sum of Rs.1,00,000/- was fixed as the fees to be paid to the Local Commissioner, which was to be borne by the plaintiff.

3. It has been noted in the proceedings before the Local Commissioner on 20th May, 2022 that the counsel for the defendant made a request to reexamine DW-1, which request was opposed by the counsel appearing on behalf of the plaintiff.

4. Accordingly, the Local Commissioner has referred the matter to the Court for appropriate directions.

5. The relevant extracts from the proceedings of 20th May, 2022 are set out below:—

“The statement of Ms. Neha Dutta, DW-1 was completed on 02.05.2022. On that date she was fully cross examined. However, during the completion of the cross examination, Sh.Kuldeep Kumar, Advocate for the defendant had made a request that he be permitted to re-examine the witness. Since, it was already 4.25 PM, therefore, the question of re-examination was kept open to be taken up today.

Sh. Kumar submits that he would like to re-examine the witness (DW-1) with regard to the questions where the witness has replied ‘YES’ or ‘NO’ only and the explanation for reaching at the truth and for the proper adjudication of the issues in question are necessary to be asked and replied for a fair conclusion.”

6. Counsel appearing on behalf of the defendant has placed reliance on Section 138 of the Evidence Act, 1872 as well as the judgment of the Supreme Court in Rammi Alias Rameshwar v. State of Madhya Pradesh, 1999 (8) SCC 649.

7. Relying on the aforesaid judgment of the Supreme Court, it is contended on behalf of the counsel for the defendant that the defendant is entitled to re-examine DW-1 on account of the answers given by the said witness in the cross-examination. He states that since the witness has replied only in ‘yes’ or ‘no’, he is entitled to re-examine the said witness to get a proper explanation from the witness in respect of the questions posed to her.

8. On the other hand, the counsel for the plaintiff vehemently opposes the said request. She places reliance on the judgment of this Court in Simrin Singh v. Amrit Srinivasan and Ors., 2018 SCC OnLine Del 7177. She submits that a witness cannot be allowed to be re-examined so as to provide an explanation when the said witness has answered the question in ‘yes’ or ‘no’. She further submits that the witness is an educated person and a law graduate and has consciously chosen to give the answers in the aforesaid manner.

9. I have heard the counsels for the parties.

10. Before dealing with the judicial precedents cited by the counsels for the parties, it is deemed apposite to refer to the relevant portion of Section 138 of the Indian Evidence Act, which is as under:—

“138. ...

Direction of re-examination.––The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.”

11. Counsel for the plaintiff has correctly placed reliance on the judgment in Simrin Singh (supra). The relevant observations of the Court are set out below:—

“9. Though Section 138 supra permits re-examination ‘to explain the matters referred to in cross-examination’ and permits further cross-examination of the witness thereafter, only if the Court has in re-examination permitted