GAJADHAR PRASAD Vs. SHAKUNTALA MISHRA

JUDGEMENT

(1.) Heard on the question of admission. The petitioners/defendants have filed this petition under Article 227 of the Constitution of India being aggrieved by the order dated 25.9.2013 passed by 1st Civil Judge Class-I, Churhat District Sidhi in C.S. No. 91-A/2013, whereby their application filed under Section 154 of Evidence Act r/w Section 151 of CPC declaring their witness Shivnath to be hostile and permitting them to cross-examine him by placing the leading questions, has been dismissed.

(2.) The petitioners' counsel after taking me through the papers placed on record along with the impugned order including the deposition of the aforesaid witness Shivnath (Ann. P.2), argued that the affidavit of such witness under Order 18 Rule 4 of CPC was filed on behalf of the petitioners on 23.11.2012 and such witness was cross-examined on behalf of the private respondents on 3.9.2013. As alleged in such cross examination he has stated the fact contrary to his in chief stated in the aforesaid affidavit. Thereafter, the impugned application under Section 154 of Evidence Act r/w Section 151 of CPC to declare such witness to be hostile and permitting them to cross examine him by leading questions was filed on 19.9.2013, but the same has been dismissed by the trial Court without considering the averments of the affidavit of such witness as well as the version of cross-examination. He further said that in view of the provision of Section 137 of Evidence Act and of settled position of law, if the witness of the party at any stage of his deposition states contrary to the earlier statements in chief or against the interest of the party, who called him then on making the request to declare such witness to be hostile and permit such party to cross examine such witness then the Court is bound to declare such witness to be hostile and permit the party like the petitioners to cross-examine such witness. In support of his contention he also placed his reliance on a decided case of the Apex court in the matter of Dahyabhai Chhaganbhai Thakkar Vs. State of Gujrat, 1964 AIR(SC) 1563 He also argued that the examination of such witness Shivnath was carried out in the absence of the counsel of the petitioners, so in such premises aforesaid prayer could not be made on the same day. With these submission he prayed to allow his application by setting aside the impugned order by admitting and allowing this petition.

(3.) Having heard the counsel keeping in view his arguments, I have perused the papers placed on record along with the impugned order.