Case Note & Summary
The petitioner, as plaintiff in an injunction suit (O.S. No. 1963/2002), challenged a trial court order dated 15.10.2019 that allowed the respondent-defendant's applications (I.A. Nos. 58 and 59) summoning the plaintiff for cross-examination. The plaintiff had never entered the witness box or filed an examination-in-chief; his power of attorney holder had earlier deposed but died before cross-examination could conclude. The defendant argued that the death of the attorney justified summoning the plaintiff for cross-examination, and alternatively, that the plaintiff could be called as a witness for the defendant. The High Court framed two legal questions: whether a person not examined-in-chief can be summoned for cross-examination, and whether a defendant can summon the plaintiff to depose as his witness. The court answered both in the negative. Relying on Section 138 of the Indian Evidence Act, 1872, and authoritative commentaries, the court held that cross-examination is contingent on examination-in-chief; without the latter, there can be no cross-examination. The death of the attorney did not alter this rule. The court further held that calling an opposing party as one's own witness is a practice condemned by the Privy Council in Mahunt Shatrujan Das v. Bewa Sham Das, AIR 1938 PC 59, and no special circumstances were presented to justify deviation. Accordingly, the writ petition was allowed, the impugned order quashed, and the defendant's applications dismissed. No costs were awarded.
Headnote
A) Evidence - Cross-Examination - Requirement of Examination-in-Chief - Indian Evidence Act, 1872, Section 138 - The plaintiff had not entered the witness box or filed an affidavit in examination-in-chief; the defendant sought to summon him for cross-examination. The court held that without examination-in-chief, a person cannot be straightaway subjected to cross-examination, and applications for cross-examination of a plaintiff not examined in chief are not maintainable. Held that cross-examination follows chief-examination, and where there is no chief-examination, there is no cross-examination (Paras 3(a)-3(b)).
B) Civil Procedure - Witness Summons - Summoning Opponent as Witness - Code of Civil Procedure, 1908 - The defendant argued that applications to summon the plaintiff could be construed as calling the plaintiff as defendant's witness. Rejecting this, the court followed the Privy Council decision in Mahunt Shatrujan Das v. Bewa Sham Das, AIR 1938 PC 59, observing that the practice of calling the defendant as a witness to give evidence on behalf of the plaintiff is condemnable. No special circumstances were shown to depart from this precedent. Held that it is not open to a defendant to summon the plaintiff to depose as his witness (Para 3(d)).
Issue of Consideration
Whether a person who has not deposed in examination-in-chief can be summoned for cross-examination, and whether a defendant can summon the plaintiff to depose as his witness.
Final Decision
Writ petition allowed; the order dated 15.10.2019 in I.A. Nos. 58 and 59 passed by the XXXI Additional City Civil Court, Bengaluru, is quashed; the respondent’s subject applications are dismissed. No costs.
Law Points
- Cross-examination follows chief-examination
- not without chief-examination
- a witness who has given no evidence in chief may not be cross-examined
- the practice of calling the defendant as a witness to give evidence on behalf of the plaintiff is condemnable
- where the attorney of a party has deposed and is dead
- the party cannot be straightaway subjected to cross-examination
- a writ of certiorari lies under Article 227 to correct jurisdictional errors.
Case Details
2020 LawText (KAR) (02) 37
WRIT PETITION NO.52330 OF 2019 (GM-CPC)
Gowrishankar C., Vittal B.R.
Sri. H.H. Jyotendra Sinhji Vikramsinhji
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Nature of Litigation
Civil suit for injunction where plaintiff challenged a trial court order summoning him for cross-examination despite not having filed examination-in-chief.
Remedy Sought
Petitioner (plaintiff) sought to set aside the trial court order dated 15.10.2019 allowing the defendant’s applications (I.A. Nos. 58 and 59) and to dismiss those applications.
Filing Reason
The trial court erroneously allowed the defendant’s applications to summon the plaintiff for cross-examination when the plaintiff had not entered the witness box or filed an affidavit in lieu of examination-in-chief; the plaintiff’s power of attorney holder had died after deposing in part.
Previous Decisions
Trial court (XXXI Additional City Civil Judge, Bengaluru) allowed I.A. Nos. 58 and 59 on 15.10.2019, summoning the plaintiff for cross-examination in O.S. No. 1963/2002.
Issues
Whether a person who has not deposed in examination-in-chief can be summoned for cross-examination?
Whether it is open to the defendant to summon the plaintiff to depose as his witness?
Submissions/Arguments
Petitioner’s counsel argued that cross-examination without examination-in-chief is impermissible under Section 138 of the Evidence Act, and the death of the attorney does not permit summoning the party straightaway for cross-examination.
Respondent’s counsel argued that the applications can be construed as ones for summoning the plaintiff to depose as the defendant’s witness, and that the plaintiff should be cross-examined because his attorney, who had deposed, is dead.
Ratio Decidendi
Cross-examination cannot be permitted without examination-in-chief, as mandated by Section 138 of the Indian Evidence Act, 1872; a party who has not given evidence in chief cannot be summoned for cross-examination. Further, a defendant cannot summon the plaintiff to depose as his own witness, as such practice is condemnable and contrary to the principles laid down by the Privy Council, unless exceptional circumstances are shown.
Judgment Excerpts
Cross-examination follows chief-examination, but not without chief-examination. If there is no chief-examination, there is no cross-examination.
The contention of the learned counsel for the respondent that his subject applications can be construed as the ones for summoning the plaintiff to depose as defendant’s witness is untenable; the Privy Council in MAHUNT SHATRUJAN DAS VS. BEWA SHAM DAS, AIR 1938 PRIVY COUNCIL 59, observed that the practice of calling the defendant as a witness to give evidence on behalf of the plaintiff is condemnable.
Where the attorney of a party to the suit having deposed in cross-examination is dead, the said party can be straightway subjected to cross-examination by the other party; perhaps, the contention of the petitioner is abhorrent to the very idea of cross-examination.
Procedural History
Plaintiff filed injunction suit O.S. No. 1963/2002; plaintiff did not file examination-in-chief; plaintiff’s power of attorney holder deposed and later died; defendant filed applications I.A. Nos. 58 and 59 seeking to summon plaintiff for cross-examination; trial court allowed those applications on 15.10.2019; plaintiff filed writ petition under Article 227 of the Constitution; High Court heard the matter and reserved orders; writ petition allowed, trial court order quashed, and defendant’s applications dismissed on 24.02.2020.
Acts & Sections
- Indian Evidence Act, 1872: Section 138
- Constitution of India: Article 227
