REHANA BEGUM Vs. MIRZA M SHAIULLA BAIG

JUDGEMENT

(1.) THE facts leading to the present petition can be summarised as follows : the petitioner is the plaintiff. O. S. No. 8201/1980 is filed by her for declaration and consequential relief of injunction and also to re-open the Judgment and decree passed in O. S. No. 290/1975. A copy of the plaint thereof is produced at Annexure-A. The reason for instituting such a suit is not required to be stated for disposing of this petition. Suffice it to say that O. S. No. 290/1975 was filed by the petitioner herein and respondent no. 6 - Rizavane Begum. Mr. Narasimha murthy was the learned counsel who was appearing for the defendants in the said suit. Respondent No. 7 who is none other than the sister of petitioner filed a suit in O. S. No. 7804/1980, for an identical relief to avoid compromise decree/in O. S. No. 290/ 1975. In the Said suit, i. e. O. S. No. 7804/ 1980, Mr. Narasimha Murhy, who was appearing for the contesting defendants in O. S. No. 290/1975 retired from the proceedings and was examined as D. W, 2 and he supported the defendants and also the compromise decree passed in O. S. No. 290/1975. It is also not disputed that the said suit was dismissed and the judgment and decree passed in O. S. No. 290/1975 is confirmed as respondent No. 7 cannot avoid such a decree as she was party to the proceedings. When the present suit instituted by the petitioner is pending trial, an application IA no 21 is filed by the petitioner under sections 137 and 154 of the Indian Evidence act seeking permission of the Court to put such questions to the said witness as adverse party would put in a cross-examination as contemplated under Section 154 of the Evidence Act. In the said application though the provisions of the Indian Evidence act, viz. , Section 137 and Section 154 were invoked, the said application was resisted by the defendants, inter-alia, contending that the said witness viz. , Mr. Narasimha murthy having not been examined and that he had been turned hostile, the applications invoking Sections 137 and 154 are not maintainable and at best would be termed as premature. The learned Trial Judge has accepted the said contention and was of the opinion that in the absence of any evidence which would run contrary to the interest of the plaintiff/petitioner, the question of invoking Section 154 in the present set of circumstances cannot be accepted and has rejected the said application, as against which the present petition is filed. The impugned order is produced at Annexure-D.

(2.) SMT. Birdy Aiyappa, learned counsel appearing for the plaintiff-petitioner would contend that the circumstances in which the petitioner is placed, there is every apprehension that Mr. Narasimha Murthy, Counsel appearing for the defendants in the earlier proceedings would not support her case. Apprehending such hostility, the present application under Section 154 was filed so as to put such questions which are normally put to a party in a cross-examination by an adverse party. She would further submit that mr. Narasimha Murthy having given evidence on behalf of the defendants in the earlier suit filed by petitioner's sister viz. R. 7, mr. Narasimha Murthy supporting her case is remote. In the circumstances, there is every justification for allowing the said application.

(3.) SRI S. G. Krishna Murthy, appearing for the respondents would submit that in the absence of any evidence that he may turn hostile, the question of the plaintiff-petitioner invoking Section 154 does not arise at all. The sum and substance is that the learned Trial Judge was justified in rejecting the application.