RAMA DEVI MISHRA Vs. JYOSHODA MISHRA

JUDGEMENT

(1.) This revisional application has been preferred under Article 227 of the Constitution of India. The case of the appellant/petitioner is that she filed an application for grant of a Letter of Administration before the learned Court below in respect of the estate of deceased Kalpa Devi Mishra, who died on 29.12.94. Said application was contested by the opposite party by filing written objection claiming therein that Kalpa Devi did not execute any Will in favour of the petitioner. The O.P. also alleged that the Will was manufactured by the husband of the petitioner in connivance with the writer and witnesses of the Will. On 24.7.2002 the said case came up before the learned Additional District Judge, Second Court, Hooghly and on that day the petitioner's evidence was recorded. Similarly on 20.9.2002 the evidence of the P.W. 2 was also recorded. Thereafter on 11.2.2003 evidence of the P.W. 3 Bimal Singh was recorded. But said Bimal Singh did not support the petitioner's case in his evidence. As such, on the same day the petitioner filed an application praying for permission to cross-examine the P.W. 3 on the grounds stated in the said petition. But the learned Court below rejected the said petition on that very day without practically assigning any reason whatsoever. Being aggrieved by, and dissatisfied with, the said Order No. 40 dated 11.2.2003 the petitioner has filed this revisional application under Article 227 of the Constitution of India claiming therein that the order, as passed by the learned Court below, suffers from material irregularity and he also failed to exercise the discretion, given by the statute to him, judicially. It has been alleged that the order in question is the result of the non-application of mind by the learned Court below and as such same should be set aside.

(2.) I have heard the submissions of the learned Advocates for both the sides. According to the learned Advocate for the petitioner, the learned Court below was not at all justified in rejecting his prayer for cross-examining the P.W. 3. In this respect, he drew my attention to the impugned order and argued that the matter in question reveals that the learned Judge rejected the prayer of the petitioner without assigning any reason whatsoever. On the other hand, learned Advocate for the respondent argued that the Court was justified in rejecting the prayer of the petitioner as the said petition could not be allowed after the cross-examination of the witness was over. In this respect, learned Advocates for both the sides drew my attention to the provisions of section 154 of the Indian Evidence Act wherein it has been provided that the party can cross-examine his own witness and put leading questions to him with the permission of the Court in an appropriate case. There is no doubt that this is a discretionary power given to the Court so that in an appropriate case the Court can exercise this discretionary power in order to enable a party to cross- examine his own witness for the purpose of this case. But the learned Advocate for the respondent argued that simply because there is a provision to that effect in the Evidence Act, the Court is not bound to allow the prayer automatically. He is to consider the entire circumstances before passing any such order. In this respect he has cited a decision reported in AIR 1977 SC page 170, Rabindra Kunmar Dey vs. State of Orissa. It appears that in the said decision it has been clearly laid down "before a witness can be declared hostile and the party examining the witness is allowed to cross-examine him, there must be some material to show that the witness is not speaking truth or has exhibited an element of hostility to the party for whom he is to depose." The learned Advocate for the petitioner on the other hand cited a decision reported in 2001(2) SCC 205 page 205, Gura Singh vs. State of Rajasthan. It appears that the decision reported in AIR 1977 SC page 170 (supra) was also relied in this decision. There is no conflict in between the two decisions regarding the principle on which a prayer for permission to cross-examine a party's own witness is to be allowed. But if we look into this decision reported in 2001(2) SCC 205 (supra) then it will appear that it has been clearly laid down that "the Courts are, therefore, under a legal obligation to exercise the discretion vesting in them in a judicious manner by proper application of mind and keeping in view the attending circumstances." So it appears from the decisions of the Hon'ble Supreme Court that in order to allow or reject a prayer made under section 154 of the Evidence Act, the Court is to look into the entire subject and thereafter he should exercise his judicial discretion in either allowing or rejecting the said prayer.

(3.) So far as the present case is concerned, it appears that said prayer of the petitioner was rejected by the learned Court below. If we look into the impugned order, then it will appear that on the same day when the examination of the P.W. 3 took place a petition under section 154 of the Indian Evidence Act was filed by the petitioner praying for permission to cross-examine the witness. Learned Advocate for the respondent drew my attention to the evidence of the P.W. 3 claiming that in fact the P.W. 3 was questioned by the Court itself during examination-in-chief. According to him, the respondent did not cross- examine the witness and thereafter when the petition under section 154 of the Evidence Act was filed, the Court was of the opinion that the said petition could not be allowed at that stage. So the learned Advocate for the respondent argued that there is nothing wrong in the order of the learned Court below. But if we look into the impugned order of the learned Court below, then it will appear that nowhere it has stated the reason for rejection of the petition of the petitioner. The evidence of the P.W. 3, as recorded by the learned Court below, is also not very clear as to when this petition under section 154 of the Act was filed by the petitioner. The impugned order of course shows that a petition to that effect was filed by the petitioner praying for permission to cross-examine the P.W. 3 which the learned Court preferred to reject. But I have already pointed out that there is no reason assigned by the learned Court below in rejecting the said petition. Simply it has been mentioned in the ordersheet "Heard the learned Advocates. Considered. The instant petition cannot be entertained at this stage". This, in my opinion, cannot be considered to be a reason given by a judicial authority. It is surprising that a Court of the rank of Additional District Judge passed such a rejection order without assigning any reason whatsoever. It shows that the said order of the learned Court below suffers from material irregularity and he has failed to exercise the jurisdiction vested in him judicially. As such, I am of opinion that it is a fit case where the matter should be sent back to the learned Court below with the direction to pass a reasoned order in respect of the petition filed by the petitioner under section 154 of the Indian Evidence Act.