The petitioner aggrieved by the order dated

15.02.2019, passed in O.S.No.116/2016, by the LIX

3

Addl. City Civil & Sessions Judge, Bengaluru (CCH-

60), has filed this writ petition.

2. Brief facts leading rise to filing of this petition

are as under:

Petitioner filed a suit in O.S.No.116/2016 for

mandatory

injunction

against

the

respondents.

Respondents No.1 and 3 filed written statement

separately. The Trial Court on the basis of pleadings

of parties, framed issues. Petitioner was examined as

PW-1

and

was

duly

cross-examined

by

the

respondents. Petitioner closed his side. The official of

respondent No.1 was examined as DW-1. During the

course of cross-examination, certain questions were

asked to DW-1 for which he tried to look into the

office file he had brought along with him to answer

the same. Petitioner raised objection stating that the

witness is not permitted to refer the office file. The

Trial Court overruled the objection and permitted DW-

4

1 to refer the file brought by him. Aggrieved by the

same, petitioner has filed this writ petition.

3. Notice was issued to respondent No.1.

Inspite of service of notice, respondent No.1 remained

unrepresented. Insofar as respondents No.2 and 3

are concerned, petitioner filed a memo seeking

dispensation of notice to respondents No.2 and 3.

This Court vide order dated 14.03.2019, dispensed

notice to respondents No.2 and 3.

4. Heard learned counsel for the petitioner.

5. Learned counsel for the petitioner submits

that DW-1 being the witness has no right to refer the

file brought by him during the course of cross-

examination. He submits that the respondents have

not produced the said documents before the Court.

The petitioner cannot be taken by surprise by

referring the file brought by him. He submits that the

5

Trial Court committed an error in passing the

impugned order. Hence on these grounds, prays to

allow the writ petition.

6. Perused the records and considered the

submissions

made

by

learned

counsel

for

the

petitioner.

7. There is no dispute that the petitioner filed a

suit

for

mandatory

injunction

directing

the

respondents 1 and 2 to deliver the original documents

of title deeds of the schedule property to the plaintiff

against the respondents. The respondent No.1 3 Bank

examined the Branch Manager as DW-1. During the

course of cross-examination, the said witness was

referring to the file which was brought by him. The

petitioner raised objection for referring the office file.

In order to consider the case in hand, it is necessary

6

to refer Section 159 of the Indian Evidence Act which

reads as under:

<159. Refreshing memory:

A

witness

may,

while

under

examination,

refresh

his

memory

by

referring to any writing made by himself at

the time of the transaction concerning

which he is questioned, or so soon

afterwards that the Court considers it likely

that the transaction was at that time fresh

in his memory.

The witness may also refer to any

such writing made by any other person,

and read by the witness within the time

aforesaid, if when he read it he knew it to

be correct.

When witness may use copy of

document to refresh memory:

Whenever a witness may refresh his

memory by reference to any document, he

may, with the permission of the Court,

refer to a copy of such document:

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Provided the Court be satisfied that

there is sufficient reason for the non-

production of the original.

An expert may refresh his memory by

reference to professional treatises.=

8. Section 159 of the Act provides that witness

while under examination refresh his memory by

referring to any writing made by himself at the time of

transaction concerning which he is questioned, or the

transaction that was at that time fresh in his memory.

DW-1 being an official witness is deposing before the

Court based on the records maintained by the Bank

and not on his personal knowledge. The official

witness may refer the office file for refreshing the

memory under examination. If the official witn