Case Note & Summary
The petitioner, Rajiv Vijaysarathy Rathnam, is the plaintiff in a money suit (O.S.No.1305/2013) pending before the XLI Addl. City Civil Judge, Bengaluru. The respondent, Sudha Seetharam, is the defendant and the plaintiff's mother-in-law. During the trial, the defendant called DWs 3 and 4 as her witnesses. Before their examination-in-chief was completed, the defendant filed an application under Section 154 of the Indian Evidence Act, 1872, seeking to declare them hostile and to cross-examine them. The trial court allowed the application by order dated 15.03.2019, treating DWs 3 and 4 as hostile and permitting the defendant to cross-examine them. The plaintiff challenged this order by way of a writ petition under Article 227 of the Constitution of India. The High Court held that the trial court's order was premature and erroneous. The witnesses had not yet been examined-in-chief, and the plaintiff had not cross-examined them. The discretion under Section 154 must be exercised only after the party calling the witness has examined them and the opposite party has cross-examined them. The order caused prejudice to the plaintiff as it deprived him of the opportunity to cross-examine the witnesses first. The High Court set aside the impugned order and directed the trial court to proceed with the examination of DWs 3 and 4 in accordance with law.
Headnote
A) Evidence Act - Hostile Witness - Section 154 - Cross-examination by party calling witness - The trial court treated DWs 3 and 4 as hostile and permitted the defendant to cross-examine them. The High Court held that the order was premature as the witnesses had not yet been examined-in-chief and the plaintiff had not cross-examined them. The discretion under Section 154 must be exercised judiciously and not in a manner that prejudices the opposite party. (Paras 1-5)
B) Civil Procedure - Writ Jurisdiction - Article 227 of the Constitution - Interference with interlocutory orders - The High Court, in exercise of its supervisory jurisdiction under Article 227, set aside the impugned order as it suffered from patent illegality and caused prejudice to the plaintiff. (Paras 1, 5)
Issue of Consideration
Whether the trial court erred in treating DWs 3 and 4 as hostile and permitting the defendant to cross-examine her own witnesses under Section 154 of the Indian Evidence Act, 1872, without affording the plaintiff an opportunity to cross-examine them first.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 15.03.2019, and directed the trial court to proceed with the examination of DWs 3 and 4 in accordance with law.
Law Points
- Hostile witness
- Cross-examination by party calling witness
- Section 154 Indian Evidence Act
- 1872
- Discretion of court
- Prejudice to opposite party
Case Details
2019 LawText (KAR) (10) 28
Writ Petition No.14032 of 2019 (GM-CPC)
Sri. Jayakumar S Patil, Senior Counsel for Sri. Abhilesh J, Advocate (for petitioner); Sri. Abhinav R, Advocate (for respondent)
Rajiv Vijaysarathy Rathnam
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Writ petition under Article 227 of the Constitution of India challenging an interlocutory order in a civil money suit.
Remedy Sought
Petitioner sought to set aside the trial court order dated 15.03.2019 treating DWs 3 and 4 as hostile and permitting the defendant to cross-examine them.
Filing Reason
The trial court allowed the defendant's application under Section 154 of the Indian Evidence Act, 1872, to declare her own witnesses hostile and cross-examine them, which the plaintiff contended was premature and prejudicial.
Previous Decisions
The trial court (XLI Addl. City Civil and Sessions Judge, Bengaluru) passed the impugned order on 15.03.2019 in O.S.No.1305/2013.
Issues
Whether the trial court erred in treating DWs 3 and 4 as hostile and permitting the defendant to cross-examine them under Section 154 of the Indian Evidence Act, 1872, before the plaintiff had an opportunity to cross-examine them.
Whether the impugned order caused prejudice to the plaintiff and warranted interference under Article 227 of the Constitution of India.
Submissions/Arguments
Petitioner argued that the order was premature as the witnesses had not been examined-in-chief and the plaintiff had not cross-examined them; the discretion under Section 154 must be exercised after the party calling the witness has examined them.
Respondent argued that the trial court had discretion to allow cross-examination of hostile witnesses at any stage and that no prejudice was caused to the plaintiff.
Ratio Decidendi
The discretion under Section 154 of the Indian Evidence Act, 1872, to permit cross-examination of a hostile witness by the party calling them must be exercised only after the witness has been examined-in-chief and the opposite party has cross-examined them. An order made before that stage is premature and prejudicial to the opposite party.
Judgment Excerpts
Petitioner being the plaintiff in a bitterly fought money suit in O.S.No.1305/2013 is invoking the writ jurisdiction of this Court for assailing the order dated 15.03.2019, a copy whereof is at Annexure-H, whereby the learned XLI Addl. City Civil Judge, Bengaluru having treated the witnesses i.e., DWs 3 & 4 as ‘hostile’ has permitted their cross-examination by the defendant who had called them as her own witnesses.
The trial court's order is premature and erroneous. The witnesses had not yet been examined-in-chief, and the plaintiff had not cross-examined them. The discretion under Section 154 must be exercised judiciously and not in a manner that prejudices the opposite party.
Procedural History
The petitioner-plaintiff filed a money suit (O.S.No.1305/2013) against the defendant-respondent. During trial, the defendant called DWs 3 and 4 as her witnesses. Before their examination-in-chief was completed, the defendant filed an application under Section 154 of the Indian Evidence Act, 1872, to declare them hostile and cross-examine them. The trial court allowed the application on 15.03.2019. The plaintiff challenged this order by filing a writ petition under Article 227 of the Constitution of India before the High Court of Karnataka.
Acts & Sections
- Indian Evidence Act, 1872: 154
- Constitution of India: 227
