N RAMRAJ Vs. MADHU

JUDGEMENT

(1.) This review petition is preferred to review the judgment dated 12/02/2008 passed by me in WP (C) No. 35596 of 2007. When the said matter was argued before me it appeared that permission was sought for putting leading questions on chief examination and on the basis of the same, I had disposed of the matter. Now the picture is clear. Documents are available and what is to be considered is as follows: The plaintiff had examined one Asokan, son of Ganesan as PW 2. He had stated in the chief affidavit certain basic factors. When he was cross examined, he had given a go bye to those statements and so when it reached the stage of reexamination, the plaintiffs counsel wanted to put leading questions under S.154 of the Evidence Act. Now the question is whether permission can be granted for such questions in reexamination. I am not going into the truthfulness or otherwise at this stage for the reason that it may affect the result of the case. But when a witness speaks contradictory to what he has sworn in the chief examination, there is nothing wrong in raising an apprehension in the mind of the person who has summoned him as a witness that the said witness has crossed the sides. When such a situation arises, the only remedy provided under the provisions of law is to put leading questions as contemplated under S.154 of the Evidence Act which in the ordinarily parlance is used as to declare the witness as a hostile witness.

(2.) Learned counsel for the plaintiff had taken me through the chief examination affidavit as well as the cross examination and there are striking difference between the two. So, when the chance of reexamination arose he requested the Court to permit him to put leading questions in reexamination which the Court below had granted. Now the learned counsel for plaintiff had cited before me the decision of the Apex Court reported in Dahyabhai v. State of Gujarat, 1964 (7) SCR 361 : 1964 (2) CriLJ 472 : AIR 1964 SC 1563 where a three Judges Bench of the Apex Court held that the Court can permit party calling a witness to put questions in the nature of cross examination at the stage of reexamination and the principle of such permission in civil matters has been decided by this Court in Thankamani v. Prabhakaran, 2001 KHC 185 : 2001 (1) KLJ 529 : 2001 (1) KLT 776 . Therefore when the party has summoned a witness, feels that he has been let down by giving contradictory answers to what he has stated in the chief examination, certainly he is legally entitled to clarify the position by further putting questions to him in the leading form as envisaged under S.154 of the Evidence Act. Therefore, I confirm the order of the learned Addl. Sub Judge, who has permitted to cross examine the witness by recalling PW 2. Needless to say that when the permission is granted to cross examine the witness in reexamination, necessarily, the other party has to be given an opportunity to do recross after the examination done in reexamination so that the entire picture will be clear before Court and the Court can at least attempt to analyse what is the truth. If there is a request to record those examination in the question answer form that may be considered by the Court below.