Monday, 15 March 2021

When the court should allow or can refuse to allow questions at the time of cross-examination?

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.

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.

IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO. 411 OF 2015

Mr. Ajit Sukhijia Vs Mr. Edgar Francisco Valles,


Coram :- F. M. REIS, J

Date : 9 th July, 2015.

Citation: 2016(2) ALLMR 447


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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