Friday, 3 June 2016

Whether new matter can be introduced in re-examination of witness?

 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. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL  APPELLATE SIDE JURISDICTION
WRIT PETITION NO.  8674 OF   2010 
SHRI GURDIAL SINGH, , 
V/s. 
1  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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