B N CHOBE Vs. SAMI AHMED

JUDGEMENT

(1.) THE short question involved in this revision petition is whether a witness whose deposition is over, can be permittted to be cross-examined under section 154, Evidence Act, as a hostile witness by the party who produced him. This question arises out of the following facts. THE plaintiff produced one Abdul Lateef Khan (P.W.3) as his witness. He was examined on 16-12-1965. After his examination-in-chief was over, the defendant declined to cross-examine as he thought that there was nothing which need be put to the wtiness. THE proceedings of 16-12-1965 showed that "the plaintiff wanted to file an application to treat P.W.3 hostile". This application, however, was filed on 9-1-1966, This application was resisted by the defendant. It was ultimately dismissed by the court below by an order dated 26-7-1966. It is this order that is now the subject of revision. Section 154, Evidence Act, reads as follows:-

(2.) IN this case, what had happened on 16-12-1965 was that the plaintiff declared his intention to file an application to treat P W 3 hostile. That is far .from asking the Court to treat the witness as hostile and then permint him to cross-examine the witness then and there. Mere declaration of his intention that he intends to file an application to treat the wtiness as hostile without asking the Court for permission to cross-examine his own witness would not attract the provisions of section 154 of the Evidence Act. The proceedings sheet of 16-12-1965 therefore in no manner helps the plaintiff. Reliance, however, was placed on a decision of the Madras High Court in Ammathayarammal v. Official Assignee in support of the contention advanced before me that such an application can be filed even subsequently and the witness can be permitted to be cross-examined on such an application. I do not think this decision any where decides that way. On the other hand, some observations of Beasley, C.J go quite cntrary to the contention raised before me. It is apparent from the facts the learned Chief Justice narrated at the outset of Ms judgment that "Whilst he (the witness) was under examination in chief, Mr. Grant, who appeared for the Official Assisgnee, put a number of questions to the witness of a cross-examination nature", without asking the permission of the court to do so. Again at page 141, the learned Chief Justice observed as follows: