P.M. Elavarasan Vs. A. Sujatha and Ors. - (High Court of Madras) (19 Mar 2018)
Absence of any provision in Original Side Rules, which enables production of documents in cross-examination, cannot amount to prohibition against production of documents in cross-examination
Present application has been filed seeking the applicant/6th Defendant to strike out the deposition of D.W.1, recorded on 23rd January, 2017 and 19th June, 2017 and to strike out the Exhibits, as according to the applicant, the procedure adopted in recording the said evidence and in marking those documents is against the Rules of the Original Side of present Court and the questions put in cross-examination to the witness are per se defamatory. The question that, arises for consideration in instant application is as to whether Rule 8 of Order IX of the Original Side Rules, completely bars production of documents in cross-examination of witnesses by the adversary. The other prayer is sought for in this application is that the question, which are put to the witness in cross-examination on 19th June, 2017 are per se defamatory.
The Division Bench of this Court in Saradambal Ammal v. Sambanda Mudaliar, had held that, the provisions of the Code of Civil Procedure, 1908 (CPC), which are inconsistent with the Original Side Rules of this Court will not apply to the proceedings in the Original Side of this Court. Section 137 of the Evidence Act, vests a right of cross-examination on the adverse party and such right cannot be reduced to be empty formality. In K.V. Kuppuswamy Ayyangar and another v. The State of Tamil Nadu, rep by its Chief Secretary, Madras and others, a Division Bench of this Court had held that, the power under order VI Rule 17, is available to this Court for allowing amendment of the pliant. The Division Bench after considering the scope of Rule 3 of Order I of the Original Side Rules, held that the High Court will have the power to amend the plaint, under Order VI Rule 17 of the CPC, de hors the absence of a provision in the Original Side Rules.
Section 144 of the Evidence Act, 1872 relates to evidence as to matters in writing and it enables question being put the witness under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and for that purpose, it enables the document being produced, Section 145 of the Evidence Act, enables cross-examination of witness as to previous statements made by him in writing or reduced into writing, and if the witness is to be contradicted by the said writing. Section 145 requires the attention of the witnesses, must be drawn to the writing, before he/she could be questioned on the writings. Therefore, production of documents in cross-examination cannot be said to be totally barred, either by the Original Side Rules or the Rules contained in the CPC. These Rules being procedural in nature must give way to the substantive law, viz. The Evidence Act.
The mere fact that the Original Side Rules, does not enable production of documents in cross-examination of the witness, cannot be used as a tool to shut out Cross-examination of the witness on the contents of the documents as well as production of documents in cross-examination. The absence of any provision in the Original Side Rules, which enables production of documents in cross-examination, cannot amount to a prohibition against the production of documents in cross-examination. In fact, Order XLIX Rule 3 of the Code of CPC, itself enumerates the Rules in the CPC, which will not apply to the High Court exercising its ordinary original jurisdiction. Order VII Rule 14 of the CPC, does not form part of those Rules and its application is not excluded by Order XLIX Rule 3 of the CPC. Therefore, the provisions of Order VII Rule 14 Sub Rule 4 can always be made applicable to the proceedings in the original side of this Court. Any other interpretation would only be doing violence to the provisions of the substantive law, viz. The Indian Evidence Act. Therefore, the procedure adopted by the learned Additional Master, in allowing marking of Exs. P30, P31 and P32 in cross-examination of D.W.1 does not call for any interference and the documents cannot be struck off from evidence.
Section 138 of the Evidence Act, provides that cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. Section 146 of the Evidence Act, provides that it shall be lawful for the cross-examining counsel, to put questions to discover who the witness is and what is its position in life or to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty of forfeiture. Therefore, it was definitely open to the counsel to ask the question regarding the character of the witnesses, while cross examining the witness and from the portion of the evidence extracted above, it could be seen the witness promptly denied the suggestion. Therefore, there is no need to strike out the evidence recorded on 19th June, 2017 as contended by the learned counsel claiming it to be per se defamatory. The application is dismissed.
Relevant : Saradambal Ammal vs. Sambanda MudaliarMANU/TN/0406/1962; K.V. Kuppuswamy Ayyangar and Anr. vs. The State of Tamil Nadu, represented by the Chief Secretary and Ors. MANU/TN/0528/1991
Tags : CROSS-EXAMINATION EVIDENCE STRIKE-OUT