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TMI Blog1967 (9) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... arguments were commenced. They concluded today. 3. Although many cases have been cited by Counsel on both sides, there is not much doubt or obscurity about the principles governing the Court's discretion whether or not to grant the permission under Section 154 of the Evidence Act. Most of the cases have been cited only by way of illustration of the particular and respective positions taken up by the counsel or merely as examples of the application of the well established principles to the facts and circumstances of particular cases. It will not therefore, be necessary for me to refer in detail to everyone of the cases cited. 4. Whatever may be the position under the English law, it has never been doubted that, under the Indian law and particularly in view of the wording of Section 154 the Evidence Act, the matter is left entirely to the discretion of the Court. It is not necessary as pointed out by the Privy Council so early as AIR 1922 PC 409, Baikuntha v. Prasanna, to make any formal declaration that a witness is hostile before granting permission under section 154 of the Evidence Act. But though the discretion is stated in wide terms, there is no doubt that it is a ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty cites witness, he is representing to the Court that the said witness is, in his opinion, a trustworthy witness who may be expected to speak the truth, and because he has put forward a case which he believes to be true, by expecting the witness to speak the truth, he may be taken to expect that he will speak in favour of his case. 10. Exceptional cases will fall into two categories. The first is where a person is bound by law to examine a witness of a particular description to prove his case, as for example, examination of an attestor of a will or an attestor of documents required by law to be attested. The second category of cases would be cases where a party is obliged not by any rule of law but by force of circumstances or pure necessity to examine a witness in order to complete the statement of his case or completely to discharge the burden of proof placed on him by law. 11. But whatever may be the category into which a given case falls, and whatever may be the circumstances which oblige a party to call particular witness, there is no doubt that so far as his case itself is concerned, he does not represent to the Court that the said case is true on facts or at any rate, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n answer given or a disposition disclosed in a matter likely to damage the case of the party calling the witness, may be suspected to be inspired by a desire not to speak the truth or to hide the truth or to colour the truth in such a way as to mislead the Court. 16. In normal cases where it can be fairly assumed that a party calling a witness represents to the Court that he is a trustworthy witness, an occasion for the party calling him to seek permission under Section 154 of the Evidence Act can arise only where he unexpectedly gives an answer which is adverse to his case. Even there, it is not enough if the party feels that the witness is hostile to him; it is necessary that the Court should come to entertain an opinion that the witness has such hostile animus against the party calling him as to be inspired by a desire to speak the untruth or not to speak the truth. 17. Hence, in such cases, an element of surprise of the type mentioned above becomes the starting point for a consideration by the Court of the question whether it should exercise its discretion under Section 154 and permit the party calling a witness to cross-examine him. 18. It is with reference to such ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the petitioner lead to one inevitable inference, viz., that even at the time this witness was cited by the petitioner, he had no illusions about the type of evidence he might give, but did distinctly and clearly contemplate that it would be necessary for him to cross-examine this witness for the purpose of making out his own case. 22. If such is the position, he cannot be said to represent to the Court that this witness may be regarded as a trustworthy witness. If, therefore, he gives an answer adverse to the case of the petitioner he cannot be heard to say that he has been taken by surprise and that therefore he may be permitted to test the truth of the answer by himself cross-examining the witness. Mr. Patil nevertheless argues that his case must be regarded as on par with the case of an attesting witness which a party propounding a will or an attested document is bound by law to examine. 23. I do not think that the analogy applies in all respects. The necessity in this case of examining the witness is not one imposed by law but one regarded as existing by the petitioner and one which to a great extent depends upon a n opinion of the petitioner. If this view is that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the witness would support his case and he cannot therefore tell the Court that because he does not support his case, the witness is speaking the untruth. It may be that the witness knows that everything stated about him in the petition is not t rue or not knowing what has been stated about him in the petition is admitting only such facts of his as are true and denying as untrue any other acts or activities which he did not indulge in. Even if he should be regarded, as the petitioner contends, as a person favourably disposed towards the respondents, it need not be that he has any special animus against the petitioner so as to be willing to speak the untruth. 28. No doubt the other witnesses examined for the petitioner have spoken to some of the acts and activities of this witness as alleged in the petition. But the fact that this witness or any answer given by this witness contradicts the evidence of those witnesses is not by itself sufficient to hold that he has such hostile animus as to entitle the petitioner to seek my permission under Section 154. This position has been fairly conceded by Mr. Patil. That is also what the Madras High Court held in Rathnasabhapathy v. Publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f both the parties fail to elicit from the witness information which is relevant to this enquiry, the Court is not powerless; it can nevertheless intervene under Section 165 of the Evidence Act if it entertains the opinion that it is necessary to do so in the interests of discovering the truth. In such an event, it would also give liberty to both the parties to cross-examine the witness upon topics covered by examination by the Court. 33. In the circumstances of this case and for the reasons stated above, I am not satisfied that it has yet been made out that the witness has disclosed such animus as to require me to permit the petitioner himself to cross-examine him. 34. Although the petitioner has taken the risk of examining this witness on his side and should therefore be fairly called upon to take the consequences of the steps taken by him, the evidence of this witness is of considerable importance to the decision of some of the important issues of this case. Hence, although in my opinion, no case has been made for a general permission to cross-examine this witness being granted under S. 154 of the Evidence Act, it may become necessary on particular topics or in relation to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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