examination and says that the witness shall be first examinedinchief,
then (if the adverse party so desires) crossexamined; then (if the party
calling him so desires) reexamined. Section 138 further says that the
examination and crossexamination must relate to the relevant facts, but
the crossexamination need not be confined to the facts to which the
witness testified on his examinationinchief. Section 138 further provides
that the reexamination shall be directed to the explanation of matters
referred to in crossexamination; and, if new matter is, by permission of
the court, introduced in reexamination, the adverse party may further
cross examine upon that matter. Bare perusal of section 138 would
show that the crossexamination need not be confined to the facts stated
by the witness in examinationinchief. If the facts which are not stated
by the witness in examinationinchief are put to him in the crossexamination,
some explanation may be required to be given by the
witness to the matters so referred to in the crossexamination. It is for
this reason, the reexamination can be permitted by the court to explain
the facts which were put to him in the crossexamination. Section 138
specially says that reexamination shall be directed to explain the matters
referred to in the crossexamination. It is thus clear that reexamination
is not restricted to explaining any ambiguity in the oral evidence (as is
commonly misconstrued by many) but to explain any matter which has
been referred to in the crossexamination of the witness. To protect the
interests of the party cross examining the witness at the first instance
against any new material introduced in the reexamination, Section 138
further provides that if new facts are introduced in the reexamination,
the adverse party would have a right of further crossexamination on
that matter. The provisions of section 138 are so designed as to do
complete justice between the parties and to give them full opportunity of
adducing evidence. Reexamination has to be liberally allowed where
new facts which are introduced in the crossexamination.
6 I am fortified in my view by the decision of the Supreme Court in
Rammi alias Rameshwar vs. State of M.P. (1999) 8 Supreme Court
Cases 649. In paragraph 17 of the decision, the Supreme Court has
observed :
“17. There is an erroneous impression that reexamination
should be confined to clarification of ambiguities which have
been brought down in crossexamination. No doubt, ambiguities
can be resolved through reexamination. But that is not the only
function of the reexaminer. If the party who called the witness
feels that explanation is required for any matter referred to in
crossexamination he has the liberty to put any question in re
examination to get the explanation”.
7 The decision of the Supreme Court clears the erroneous impression
which then existed that the reexamination should be confined only to
clarification of the ambiguities which have been brought down in the
crossexamination. Undoubtedly, ambiguities can be resolved through
reexamination but that is not the only purpose for which reexamination
is allowed. If the party who had called a witness feels that an explanation
is required for any matter referred to in the crossexamination, he can be
permitted by the court to put any question in that regard in the reexamination.
Interest of the adverse party is protected by permitting him
further crossexamination as to any new matter introduced in the reexamination.
8 Mr. Damale, learned counsel for the defendant (petitioner)
submitted that the decision in the case of Rameshwar vs. State of MP
(supra) was rendered in a criminal proceedings and cannot be applied to
a civil suit. The submission is stated only to be rejected. Reexamination
is allowed under section 138 of the Evidence Act. Section 138 applies to
both to criminal as well as civil trials. Principle laid down by the
Supreme Court in the case of Rameshwar (supra) cannot be restricted to
only to a criminal trial. It applies equally to a trial of a civil case.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
WRIT PETITION NO. 8674 OF 2010
SHRI GURDIAL SINGH, ,
V/s.
M/s. Arudatta Triotex Engineers Pvt.Ltd.,
CORAM : D. G. KARNIK, J.
DATE : 07th JUNE, 2011.
Citation:2011(6) ALLMR 505,2011(5) MHLJ889
1 Rule, returnable forthwith. Mr. Bubna waives service on behalf of
Respondent No.1. Learned counsel for the petitioner (defendant in the
suit) states that the respondent no.2 is a formal party; hence, service on
respondent No.2 is dispensed with. By consent, taken up for final
hearing.
2 This petition is directed against an interlocutory order passed by
the learned 3rd Joint Civil Judge, Senior Division (for short “the trial
court”) granting permission of reexamination of its witness (PW1) to the
respondent (plaintiff in the suit). For the sake of convenience the parties
are hereinafter referred to as the plaintiff and defendant as per their
status in the suit.
3 In pursuance of the provisions of Order 18, Rule 4 of the Code of
Civil Procedure, as amended by the Amendment Act, 2002, the plaintiff
filed an affidavit of Mr. Sunildatta Vasant Borwankar (PW1) in lieu of
examinationinchief on 21st March, 2009. He was crossexamined by the
defendant on 18th June, 2009. On the next date i.e. on 18th July, 2009 the
plaintiff made an application that certain ambiguities had arisen in the
evidence of PW1 on account of answers given by him in the crossexamination
in respect of a letter dated 19th July, 2001 (Exh.66/1) and
therefore, the plaintiff may be permitted the reexamination of PW1 to
explain the circumstances under which the letter was issued. The
application was resisted by the defendant. After hearing the parties, the
trial court by its order dated 11th August, 2009 allowed the application
and granted permission to the plaintiff to reexamine Mr. Borwankar
(PW1) with a condition that reexamination shall be restricted only to
the extent of explaining the circumstances under which the letter dated
19th July, 2009 was issued. The defendant, thereafter, filed an application
for review of the order. By order dated 30th March, 2010, the review
application was dismissed. By this petition, the defendant challenges the
original order as well the order passed on the review application.
4 The learned counsel for the defendant (petitioner) submitted that
the application for reexamination ought not to have been granted.
There was no ambiguity in the crossexamination. On the other hand,
the plaintiff’s witness Mr. Borwankar had admitted issuance of the letter
dated 19th July, 2009 in his crossexamination. What the plaintiff wanted
to do was to get over the said admission and/ or explain the said
admission, which cannot be allowed by way of reexamination. The
application, therefore, should have been rejected.
5 Section 137 of the Evidence Act says that the examination of a
witness by the party who calls him shall be called his examinationin
chief; the examination of a witness by the adverse party shall be called
his crossexamination and the examination of a witness, subsequent to the
cross examination by the party who calls him, shall be called his reexamination.
Section 138 of the Evidence Act prescribes the order of
examination and says that the witness shall be first examinedinchief,
then (if the adverse party so desires) crossexamined; then (if the party
calling him so desires) reexamined. Section 138 further says that the
examination and crossexamination must relate to the relevant facts, but
the crossexamination need not be confined to the facts to which the
witness testified on his examinationinchief. Section 138 further provides
that the reexamination shall be directed to the explanation of matters
referred to in crossexamination; and, if new matter is, by permission of
the court, introduced in reexamination, the adverse party may further
cross examine upon that matter. Bare perusal of section 138 would
show that the crossexamination need not be confined to the facts stated
by the witness in examinationinchief. If the facts which are not stated
by the witness in examinationinchief are put to him in the crossexamination,
some explanation may be required to be given by the
witness to the matters so referred to in the crossexamination. It is for
this reason, the reexamination can be permitted by the court to explain
the facts which were put to him in the crossexamination. Section 138
specially says that reexamination shall be directed to explain the matters
referred to in the crossexamination. It is thus clear that reexamination
is not restricted to explaining any ambiguity in the oral evidence (as is
commonly misconstrued by many) but to explain any matter which has
been referred to in the crossexamination of the witness. To protect the
interests of the party cross examining the witness at the first instance
against any new material introduced in the reexamination, Section 138
further provides that if new facts are introduced in the reexamination,
the adverse party would have a right of further crossexamination on
that matter. The provisions of section 138 are so designed as to do
complete justice between the parties and to give them full opportunity of
adducing evidence. Reexamination has to be liberally allowed where
new facts which are introduced in the crossexamination.
6 I am fortified in my view by the decision of the Supreme Court in
Rammi alias Rameshwar vs. State of M.P. (1999) 8 Supreme Court
Cases 649. In paragraph 17 of the decision, the Supreme Court has
observed :
“17. There is an erroneous impression that reexamination
should be confined to clarification of ambiguities which have
been brought down in crossexamination. No doubt, ambiguities
can be resolved through reexamination. But that is not the only
function of the reexaminer. If the party who called the witness
feels that explanation is required for any matter referred to in
crossexamination he has the liberty to put any question in re
examination to get the explanation”.
7 The decision of the Supreme Court clears the erroneous impression
which then existed that the reexamination should be confined only to
clarification of the ambiguities which have been brought down in the
crossexamination. Undoubtedly, ambiguities can be resolved through
reexamination but that is not the only purpose for which reexamination
is allowed. If the party who had called a witness feels that an explanation
is required for any matter referred to in the crossexamination, he can be
permitted by the court to put any question in that regard in the reexamination.
Interest of the adverse party is protected by permitting him
further crossexamination as to any new matter introduced in the reexamination.
8 Mr. Damale, learned counsel for the defendant (petitioner)
submitted that the decision in the case of Rameshwar vs. State of MP
(supra) was rendered in a criminal proceedings and cannot be applied to
a civil suit. The submission is stated only to be rejected. Reexamination
is allowed under section 138 of the Evidence Act. Section 138 applies to
both to criminal as well as civil trials. Principle laid down by the
Supreme Court in the case of Rameshwar (supra) cannot be restricted to
only to a criminal trial. It applies equally to a trial of a civil case.
9 There is no merit in the writ petition which is hereby dismissed.
Rule is discharged with no orders as to costs.
[D.G. KARNIK, J.]
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