Saturday, 21 May 2016

When court should not disallow particular questions in cross examination?

 I have given my thoughtful considerations to the learned Senior
Advocates and with their assistance, I have also gone through the records. The
cross examination of the witness is a weapon in the hands of the opposite party to
establish the reliability or otherwise of a witness who is under cross examination.
The witnesses are also cross examined to ascertain the credibility of such witness
and also to see the veracity of the case put forward before the Court. Section 137
of the Evidence Act, inter alia, provides that the examination of a witness by the
party who calls him shall be called his examination-in-chief, whereas the
examination of a witness by the adverse party shall be called his cross
examination. Section 138 provides that a witness shall first record the examinationin-chief
and then if adverse party so desires, be cross examined, thereafter if the
party calling him so desires be re-examined. The examination and cross
examination must relate to relevant facts, but the cross examination need not be
confined to the facts to which the witness testifies on his examination in chief. On
plain reading of the said provisions, the contention of Shri Sudin Usgaonkar,

learned Senior Advocate appearing for the Respondents, that the cross
examination has to be restricted only to the statements made in the examination-inchief
or in the pleadings cannot be accepted. It is always open in the cross
examination to put questions in order that they can nullify or establish the veracity
or otherwise of the allegations made in the proceedings.
7. When the relevancy and the admissibility of a particular question is
seriously raised, it is the endeavour of the Court to elicit the answer after recording
the objectives. The final decision on such objectives can be decided at the end of
the trial. This view has been taken by this Court in the Judgment reported in 2015
SCC Bom 2571 in the case of Neema Hingarh vs. Ashish Hingarh, wherein it has
been observed at Para 8 thus:
“8. In the case of Irfan Badshah (supra), the
learned Single Judge of Delhi High Court considered
Section 148 of the Indian Evidence Act, 1872 as also
the decision of the Apex Court in the case of Special
Cell, New Delhi v. Navjot Sandhi alias Afshan Guru,
(2003) 6 SCC 641, wherein it was observed thus,
“… the endeavour of the Court wherever
there is a serious dispute with regard to the
relevancy and admissibility of a question
should be to elicit the answer of the witness
after noting the objections. The final
decision to reject particular evidence as
irrelevant or inadmissible can be if required
taken at the end of the trial. This procedure
benefits even the appellate court as in a
case where the question is disallowed or
excluded from evidence and the appellate
court feels that the same was essential, it is
at this stage not required to remand back
the matter for re-examination of the witness.
Cross-examination is the main tool of an

accused to test the veracity of the evidence
of the witness and discredit his
trustworthiness. Moreover, this does not
mean that the trial court will not exercise its
discretion in disallowing irrelevant
questions.”
In such circumstances, I find that the procedure followed by the
learned Trial court refusing to allow the questions at the time of the cross
examination, is not at all justified, unless the Court comes to the conclusion that the
questions are inter alia those which a party cannot be forced to answer and are
patent erroneous and put to delay the proceedings and for oblique purpose or have
no nexus with the dispute between the parties.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 411 OF 2015
Mr. Ajit Sukhijia,

V e r s u s
Mr. Edgar Francisco Valles,

 Coram :- F. M. REIS, J
Date : 9thJuly, 2015.
Citation;2016(3) MHLJ242,2016(2) ALLMR447

Heard Shri S. D. Lotlikar, learned Senior Counsel appearing for the
Petitioners and Shri Sudin Usgaonkar, learned Senior Counsel appearing for ther
Respondents.
2. Rule. Heard forthwith. Learned Counsel appearing for the
Respondents, waive service.
3. The above Petition takes exception to the Orders passed by the
learned Civil Judge, Senior Division at Panaji, whereby five questions put to Dw.1 in
his cross examination, came to be disallowed on the ground that such question is
irrelevant.
4. Shri S. D. Lotlikar, learned Senior Advocate, has submitted that the
learned Judge has erroneously refused such questions as, according to him, the
questions are very material for deciding the matter in controversy. Learned Senior
Advocate further submits that the learned Judge was not justified to interrupt the
cross on irrelevant ground and, as such, cause grave prejudice to the Petitioners.
Learned Senior Advocate further submits that the cross examination is a strong

weapon in the hands of the opposite party and, as such, it was not open to the
learned Judge to call upon the Petitioners to justify the reason why the questions
were being asked. Learned Senior Advocate further submits that the suit filed by
the Petitioners is to declare a Will as null and void on the ground to coercion and
unnatural nature of the Will and for other reasons stated in the plaint. Learned
Senior Advocate further pointed out that it is well settled that in such cases, it is
always open to the Plaintiff to draw some suspicion with regard to the execution of
such Will and as such, it was not open to the learned Judge to disallow the
questions put by the Petitioner. The learned Senior Advocate as such submits that
the Orders passed by the learned Judge disallowing the questions be quashed and
set aside.
5. On the other hand, Shri Sudin Usgaonkar, learned Senior Advocate
appearing for the Respondents, has submitted that the questions which have been
disallowed are irrelevant to decide the matter in controversy. Learned Senior
Advocate has thereafter taken me through the issues framed in the suit to point out
that the questions which have been asked were not at all material nor have any
nexus with the issues raised in the suit. Learned Senior Advocate further pointed
out that the questions which were asked were not part of the pleadings of the
Petitioners nor of the Respondents and, as such, the questions cannot be put to the
witness. Learned Senior Advocate has thereafter taken me through the provisions
of Section 145 and 146 of the Evidence Act to pointed out the questions which can
be put to a witness in cross examination and, as such, according to him, the
questions which have been put to the Respondents do not come within the said

provisions of the Evidence Act. Learned Senior Advocate as such submits that the
question of interfering in the impugned Order would not arise at all and,
consequently, the Petition be dismissed. In support of his submission, the learned
Senior Advocate has relied upon the Judgment of this Court reported in 1979 Mh.
L. J. 11 in the case of Baburao Patel vs. Bal Thackeray & anr. Learned Senior
Advocate has pointed out that in the said Judgment, the law has been settled about
the nature of the questions which could be put in the cross examination for
examining the character of such witness.
6. I have given my thoughtful considerations to the learned Senior
Advocates and with their assistance, I have also gone through the records. The
cross examination of the witness is a weapon in the hands of the opposite party to
establish the reliability or otherwise of a witness who is under cross examination.
The witnesses are also cross examined to ascertain the credibility of such witness
and also to see the veracity of the case put forward before the Court. Section 137
of the Evidence Act, inter alia, provides that the examination of a witness by the
party who calls him shall be called his examination-in-chief, whereas the
examination of a witness by the adverse party shall be called his cross
examination. Section 138 provides that a witness shall first record the examinationin-chief
and then if adverse party so desires, be cross examined, thereafter if the
party calling him so desires be re-examined. The examination and cross
examination must relate to relevant facts, but the cross examination need not be
confined to the facts to which the witness testifies on his examination in chief. On
plain reading of the said provisions, the contention of Shri Sudin Usgaonkar,

learned Senior Advocate appearing for the Respondents, that the cross
examination has to be restricted only to the statements made in the examination-inchief
or in the pleadings cannot be accepted. It is always open in the cross
examination to put questions in order that they can nullify or establish the veracity
or otherwise of the allegations made in the proceedings.
7. When the relevancy and the admissibility of a particular question is
seriously raised, it is the endeavour of the Court to elicit the answer after recording
the objectives. The final decision on such objectives can be decided at the end of
the trial. This view has been taken by this Court in the Judgment reported in 2015
SCC Bom 2571 in the case of Neema Hingarh vs. Ashish Hingarh, wherein it has
been observed at Para 8 thus:
“8. In the case of Irfan Badshah (supra), the
learned Single Judge of Delhi High Court considered
Section 148 of the Indian Evidence Act, 1872 as also
the decision of the Apex Court in the case of Special
Cell, New Delhi v. Navjot Sandhi alias Afshan Guru,
(2003) 6 SCC 641, wherein it was observed thus,
“… the endeavour of the Court wherever
there is a serious dispute with regard to the
relevancy and admissibility of a question
should be to elicit the answer of the witness
after noting the objections. The final
decision to reject particular evidence as
irrelevant or inadmissible can be if required
taken at the end of the trial. This procedure
benefits even the appellate court as in a
case where the question is disallowed or
excluded from evidence and the appellate
court feels that the same was essential, it is
at this stage not required to remand back
the matter for re-examination of the witness.
Cross-examination is the main tool of an

accused to test the veracity of the evidence
of the witness and discredit his
trustworthiness. Moreover, this does not
mean that the trial court will not exercise its
discretion in disallowing irrelevant
questions.”
In such circumstances, I find that the procedure followed by the
learned Trial court refusing to allow the questions at the time of the cross
examination, is not at all justified, unless the Court comes to the conclusion that the
questions are inter alia those which a party cannot be forced to answer and are
patent erroneous and put to delay the proceedings and for oblique purpose or have
no nexus with the dispute between the parties.
8. In the present case, on perusal of the questions which are disallowed,
I find that such questions are to ascertain the correctness of the particulars in the
disputed Will. Apart from that, some of the questions put by the learned Counsel
appearing for the Petitioner in respect of amounts spent from the accounts may be
otherwise not required but, however, such questions were in the context of an
Order passed by this Court directing Dw.1 to maintain the accounts. Besides that,
whether there were sufficient assets to satisfy the legacies at the relevant time may
be material in the context to examine whether the testator was fully conversant with
the position of her assets and whether she has taken into consideration these
aspects while executing the Will under challenge on the ground that the testator
was not in a firm position, to execute such Will.
9. These aspects have to be examined in the context of the

provisions of the Evidence Act which clearly stipulates the questions which are
permissible in cross examination of the witnesses. As a general rule, the Court
would not be justified in imposing restrictions in the cross examination of a witness.
But however the Court may in the course of the trial come to the conclusion that
some of the cross examination was unnecessary and, in such a case, the Court
has powers to control the cross examination of a witness by the Counsel but such
power has to be exercised in a reasonable way. As such, the Trial Court should
see that the cross examination is not conducted in a rumbling way or that the
questions are impermissible under the provisions of the Indian Evidence Act.
10. In view of the above, I find that the learned Trial Judge was not
justified to disallow question nos. 1, 2, 3 and 4 in the course of the deposition of the
witness by Order dated 04.06.2015. As far as the fifth question as to whether the
legacies of cash amount to the beneficiaries in terms of the Will have been paid it
has no nexus to the matter in controversy in the suit. Hence, the impugned Order
disallowing question nos. 1 to 4 by Orders dated 04.06.2015 are quashed and set
aside.
11. Rule is made absolute in the above terms.
F .M. REIS, J.

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