KUSUM GUPTA Vs. HARINARAYAN GUPTA

JUDGEMENT

(1.) This Miscellaneous Petition is filed being aggrieved of order dtd. 13/9/2019 (Annx.P/6), passed by learned II Civil Judge, Class-I, Chhindwara (M.P.), in R.C.S.No.5A/2014, allowing an application under Sec. 154 of the Evidence Act, permitting the plaintiffs to cross-examine their own witness who has turned hostile during cross-examination.

(2.) It is submitted that Hon'ble Supreme Court in Sri Rabindra Kumar Dey Vs. State of Orissa [(1976) 4 SCC 233], in para 10 has held that:- "a party will not normally be allowed to cross-examine its own witness and declare the same hostile, unless the court is satisfied that the statement of the witness exhibits an element of hostility or that he has resiled from a material statement which he made before an earlier authority or where the court is satisfied that the witness is not speaking the truth and it may be necessary to cross-examine him to get out the truth.

(3.) It is pointed out that the ratio of the law laid down in the case of Sri Rabindra Kumar Dey (supra), is that there must be some material to show that the witness is not speaking the truth or has exhibited an element of hostility to the party for whom he is deposing. He submitted that there is no such circumstance in the present case and, therefore, the impugned order be set aside.