Kamla Devi vs Reshmu Devi

Rakesh Kainthla, J

The present appeal is directed against the judgment and decree dated 04.05.2006, passed by the learned District Judge, Bilaspur, H.P. (learned Appellate Court) vide which the judgment and decree dated 20.11.2004, passed by the learned Civil Judge (Senior Division), Bilaspur, H.P. (learned Trial Court Court) were set aside and the suit of the respondent (plaintiff before learned Trial Court) was decreed. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned trial Court for convenience).

Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit for the recovery of ₹50,000/- as damages against the defendant. It was asserted that the plaintiff and defendant are residents of the same village. The plaintiff, Smt. Suharu, Nirmla and Amri Devi were working in the field of Sukhia on 26.06.2002. The defendant was working in her field located adjacent to the field of Sukhia. The defendant started abusing the plaintiff by saying that she (plaintiff) was grabbing the money of the defendant's husband, and she (plaintiff) had an extramarital relationship with the defendant's husband. The defendant defamed the plaintiff publicly without any cause. The plaintiff has a good reputation and has remained the President of Mahila Mandal, Barog. Her estimation was lowered in the eyes of the public. Hence, the suit was filed to seek the relief mentioned above.

The suit was opposed by the defendant by filing a written statement denying the contents of the plaint. However, it was admitted that the parties are residents of the same village and the defendant was working in her field. It was asserted that the defendant never defamed the plaintiff, and the plaintiff had filed a false suit. Hence, it was prayed that the suit be dismissed.

A replication denying the contents of the written statement affirming those of the plaint was filed.

The learned trial Court framed the following issues on 19.05.2003:

Whether the plaintiff is entitled to the suit amount of ₹50,000/- as damages from the defendant as alleged? OPP.

Relief.

The parties were called upon to produce the evidence, and the plaintiff examined herself (PW-1), Nirmla Devi (PW-2) and Suharu (PW-3). The defendant examined herself (DW-1) and Vijay Sood (DW-2).

The learned Trial Court held that the relationship between the parties was strained. The witnesses examined by the plaintiff were inimical, who had litigation with the defendant's family. It was difficult to rely upon their testimonies. The defendant's version was corroborated by Vijay Sood. The learned Trial Court answered issue No.1 in negative and dismissed the suit.

Being aggrieved by the judgment and decree passed by the learned Trial Court, the plaintiff filed an appeal, which was decided by the learned District Judge, Bilaspur, H.P. (learned Appellate Court). The Appellate Court held that the testimonies of the witnesses cannot be rejected because of the litigation with the defendant. The plaintiff's witnesses had consistently stated that the defendant had used the defamatory words against the plaintiff. The presence of Vijay Sood (DW2) on the spot was not suggested to any person, and her testimony was not believable. Learned Trial Court had erred in appreciating the evidence on record. Hence, the learned Appellate Court set aside the judgment and decree passed by the learned Trial Court and decreed the plaintiff's suit.

Being aggrieved by the judgment and decree passed by the learned Trial Court, the defendant has filed the present appeal, which was admitted on the following substantial questions of law on 18.08.2008: -

Whether the impugned judgment and decree is a result of misread and misinterpretation of statements of PW-1 to 3?

Whether the statement of inimical witnesses, who are having a civil litigation with the defendant, can be relied upon?

I have heard Mr Surya Chauhan, learned counsel for the appellant/defendant and Mr Hitender Verma, learned counsel for the respondent/plaintiff.

Mr Surya Chauhan, learned counsel for the appellant/defendant, submitted that the learned Trial Court had rightly held that the testimonies of inimical witnesses could not be relied upon. The learned appellate Court erred in reversing the well-reasoned judgment of the learned Trial Court. Therefore, he prayed that the present appeal be allowed and the judgment and decree passed by the learned Appellate Court be set aside.

Mr Hitender Verma, learned counsel for the respondent/plaintiff, submitted that the present appeal does not involve any substantial question of law but relates to the interpretation of the evidence, which is a pure question of fact. There is no bar in relying upon the testimonies of the inimical witnesses, and the learned Trial Court had erred in rejecting the statements of the witnesses due to the enmity alone. Learned Appellate Court had rightly held that enmity is a double-edged weapon and cannot be used to discard the testimony of a witness. Hence, he prayed that the present appeal be dismissed. He relied upon judgments of the Hon'ble Supreme Court in Santosh Hazari vs. Purushottam Tiwari (deceased) by LRs (2001) 3 SCC 179 and Chanderbhan vs. Sarswati (2022) 20 SCC 199 in support of his submission.

I have given considerable thought to the submission made at the bar and have gone through the records carefully.

Substantial question of law No.2.

Mr Surya Chauhan, learned counsel for the appellant/ defendant, submitted that the learned Trial Court had rightly discarded the statements of the witnesses because of the enmity with the defendant. He read the cross-examination of the witnesses to show that the relationship between the parties, the witnesses and the defendant was strained. He submitted that the learned Appellate Court has erred in relying upon the statements of the inimical witnesses. This submission is not acceptable. It was laid down by the Supreme Court in Ramashish Rai v. Jagdish Singh, (2005) 10 SCC 498, that the testimony of a witness cannot be discarded because of enmity. The Court has to see the statement of inimical witnesses with due care and caution. It was observed:

7...The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise, the witnesses are true and reliable, their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is a well-settled principle of law that enmity is a double-edged sword. It can be a ground for false implication. It can also be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence. In the present case, the High Court has rejected the otherwise creditworthy testimony of an eyewitness account merely on the ground that there was enmity between the prosecution party and the accused party.

Therefore, the learned trial Court had erred in rejecting the statements of the plaintiff's witnesses based upon the relationship alone. The evidence could not have been rejected due to the enmity but was required to be seen with due care and caution. Hence, this substantial question of law is answered accordingly.

Substantial question of law No.1.

Plaintiff, Reshmu Devi, stated that she was working in the field of Sukhia on 26.06.2002 with Nirmla, Suharu, Parvatu and her sister-in-law. Defendant was working in her field at a distance of 35-40 feet. The plaintiff was chatting with other women. The defendant told them that they were abusing her. Nirmla replied that they were talking to each other and were not discussing the defendant. The plaintiff asked Nirmla to keep quiet. The defendant told the plaintiff that she (plaintiff) had an extramarital relationship with the defendant's husband. The plaintiff was taking the money from the defendant's husband, and the defendant would not let the plaintiff live. This incident spread in the locality, and the plaintiff was defamed. She stated in her cross-examination that she had not talked to the defendant for 7-8 years. She volunteered to say that she and the defendant belonged to different castes. She admitted that Suharu and the defendant had a litigation.

Nirmla Devi (PW-2) stated that she, Reshmu Devi (plaintiff), Suharu, Amari and Parvati were working in the field of Sukhia. They were talking to each other. Defendant was working in her field at some distance. The defendant said that they were discussing her. She (Nirmla Devi) replied that they were talking to each other and were not discussing the defendant. The plaintiff asked her (Nirmla Devi) to keep quiet. The defendant got infuriated and told the plaintiff that she (plaintiff) had an extramarital relationship with the defendant's husband, and the plaintiff was taking the money from him. She threatened to kill the plaintiff. These words defamed the plaintiff. She stated in her cross-examination that Sukhia is her father-in-law, and he had a litigation with the defendant's father-in-law. She admitted that the plaintiff and defendant were not on talking terms with each other for many years. She denied that a false case was made by the plaintiff and that no abuses were hurled.

Suharu (PW-3) corroborated the plaintiff's version.

She stated that she was working in the field on 26.06.2002. The defendant was working in an adjacent field. The plaintiff and other persons were talking to each other. The defendant told Nirmla that they were discussing the defendant. Nirmla denied this fact. The plaintiff asked Nirmla to keep quiet. The defendant got infuriated and told the plaintiff that the plaintiff had an extramarital relationship with the defendant's husband, and the plaintiff had taken money from him. The defendant threatened to kill the plaintiff. These words lowered the plaintiff's estimation in their eyes. She stated in her cross-examination that the fields of Suharu and the defendant were located adjacent to each other. She was not aware that Nirmla and Suharu had a quarrel with each other. She admitted that her husband and Kamla's father-in-law had litigation. She admitted that they were not on talking terms with each other during the litigation. She denied that she was making a false statement because of the enmity.

It is apparent from the cross-examination of these witnesses that nothing was suggested to them except the enmity between the parties, the witnesses and the defendant. The enmity is no reason to discard the witness's testimony, and the learned Trial Court had erred in rejecting their testimonies based on the enmity alone. Their testimonies corroborated each other, and the learned Appellate Court had rightly accepted their testimonies.

Kamla Devi (DW-1) admitted that she was working in her field, and the plaintiff and 5-6 women were working in the field of Sukhia. Therefore, part of the plaintiff's statement is corroborated by the defendant. She stated in her cross-examination that the plaintiff and other women were laughing, and she had not said anything to them. She volunteered to say that they were talking nonsense. This shows that the defendant had a grievance regarding the conversation between the plaintiff and other women, and the learned Appellate Court was justified in relying upon the plaintiff's version.

Vijay Sood (DW-2) stated that he went to the defendant's house to collect money. The defendant revealed that 5-6 women were abusing her (defendant). The defendant replied that she had an old enmity with them.

The statement of this witness will not help the defendant. This witness had not gone to the fields but to the defendant's house. Therefore, he is not an eyewitness, and his testimony is not sufficient to disprove the statement of the plaintiff and her witnesses.

Therefore, the learned Appellate Court had rightly appreciated the evidence and accepted the evidence of the plaintiff. This was a pure finding of facts. It was laid down by the Supreme Court in Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179: 2001 SCC OnLine SC 375 that the High Court can decide a Regular Second Appeal (RSA) based on a substantial question of law, and it is not permissible to interfere with the pure finding of facts. It was observed at page 186:

"11. Even under the old Section 100 of the Code (pre-1976 amendment), a pure finding of fact was not open to challenge before the High Court in a second appeal. However, the Law Commission noticed a plethora of conflicting judgments. It noted that in dealing with second appeals, the courts were devising and successfully adopting several concepts, such as a mixed question of fact and law, a legal inference to be drawn from facts proved, and even the point that the case had not been properly approached by the courts below. This was creating confusion in the minds of the public as to the legitimate scope of second appeals under Section 100 and had burdened the High Courts with an unnecessarily large number of second appeals. Section 100 was, therefore, suggested to be amended so as to provide that the right of second appeal should be confined to cases where a question of law is involved and such a question of law is a substantial one. (See Statement of Objects and Reasons.) The Select Committee to which the Amendment Bill was referred felt that the scope of second appeals should be restricted so that litigation may not drag on for a long period. Reasons, of course, are not required to be stated for formulating any question of law under sub-section (4) of Section 100 of the Code; though such reasons are to be recorded under the proviso to sub-section (5) while exercising the power to hear on any other substantial question of law, other than the one formulated under sub-section (4)."

This position was reiterated in Chandrabhan v. Saraswati, (2022) 20 SCC 199: 2022 SCC OnLine SC 127, wherein it was observed at page 210:

32.3. The general rule is that the High Court will not interfere with findings of fact arrived at by the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case where the evidence, taken as a whole, is not reasonably capable of supporting the finding.

In the present case, the question framed is the interpretation of the evidence led before the learned Trial Court. It is a pure question of fact and does not involve the substantial question. Hence, this substantial question of law is answered accordingly.

Final Order

In view of the above, the present appeal fails, and it is dismissed, so also the pending applications, if any.

The record of the learned Courts below be returned along with a copy of this judgment.