SUNAKAR GOCHHAYAT Vs. DHANESWAR BARIK

JUDGEMENT

(1.) The question to be decided in this, revision is, if rejection of the application filed by petitioners 1 to 4 to cross -examine the witness (DW 1) is justified. Shankar, Chakradhar and Ankura were three brothers, Doli (Defendant No. 6) and Banamali (defendant No. 7) are the legal representatives of defendant No. 4. Court (defendant No. 5) is the legal representative of Ankura. Plaintiffs purchased the disputed property from Chakradhar whereas defendant Nos. 1 to 4 purchased a portion of the disputed property from defendant Nos. 5, 6 and 7. Purchases ware almost contemporaneous, plaintiffs' being 4 days earlier than that of defendant Nos. 1 to 4. The question that arose in the suit for permanent injunction was, if the property was the exclusive property of Chakradhar or was the joint property of Chakradhar and defendants, 5, and 7 and if the plaintiffs were in possession.

(2.) AFTER conclusion of evidence adduced by the plaintiffs, the defendants examined their witness Michhu (DW 1) on 10 -12 -1986. After the cross -examination was over, the petitioners, who were defendants 1 to 4. without re -examining him filed an application making a prayer to the Court to allow them to cross -examine him after declaring him hostile. Said prayer having been rejected/ this revision has been filed. The trial Judge rejected the prayer holding that merely because the witness made some statements damaging to the defendants 1 to 4 during his cross -examination by the plaintiffs, that was not a justification for declaring him hostile and permitting defendants 1 to 4 to cross -examine him.

(3.) THE moot question for consideration is, if the aforesaid statements of the witness justified invoking Section 154 for the purpose of putting this question in the nature of cross -examination. Section 154 of the Evidence Act reads as under; '154. The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might fee put in cross -examination by the adverse party.' An exhibition of hostile animus is not the sole test of declaring a witness adverse because such a test would frustrate the object in many cases like where a shrewd and composed witness might, by concealing his real sentiments or hostile attitude, give unfavourable evidence and make statements contrary to the facts, known to him and what the party calling him expected him to say nor can the witness merely giving unfavourable testimony be enough to declare him adverse, for he might be telling the truth which may go against the party calling him. He is hostile, it he tries to injure the party's case by prevaricating or suppressing the truth ; when his temper, attitude, demeanour, bearing, etc. in the witness box show a distinctly antagonistic feeling or a mind hostile to the party calling him or when concealing his true sentiments he does not exhibit any hostile feeling, but makes statements contrary to what he knew and was called to prove or what he had deliberately told before and by his manner of giving evidence and conduct shows that he is suppressing the truth, or that he is not desirous of giving evidence fairly and telling the truth to the Court with a view to help the other party. A witness who is unfavourable is not necessarily hostile. But the matter as to whether permission should or should not be granted to cross -examine one's witness whatsoever hostile he may appear to be eminently is one in the discretion of the trial Judge and his discretion under various circumstances is not open to challenge.