Prokrity Nath Mukhopadhyay vs Saroj Banerjee

A testamentary suit is taken up for final hearing.

By an Order dated March 14, 2016 the proceedings for probate was converted into one for grant of Letters of Administration. An amendment application was allowed in the suit. The plaintiff had applied for taking evidence on commission. Such application was allowed. The plaintiff had examined one witness in commission. Such witness was cross-examined.

The plaintiff had made an application being G.A. No. 2868 of 2016 seeking re-examination of its witness. The pleadings in the application were that, although the plaintiff?s witness had identified and proved the signature of the testator, the same has not been marked as an exhibit. An opportunity was sought to re-examine the witness of the plaintiff.

Such application being G.A. No. 2868 of 2016 was disposed of by an Order dated November 8, 2016 which is as follows:-

"The petitioner seeks re-examination of its witness. Learned Advocate for the respondents opposes such prayer on the ground that the petitioner had adequate opportunity before the Commissioner and that, in the event the Court is pleased to allow the application, suitable compensation by way of cost should be given.

It appears that the petitioner seeks to re-examine its witness for the purpose of recording a document already produced in evidence as an exhibit and for establishing the identity of the attesting witness.

Re-examination is permissible for the purpose of explaining the evidence on record. The petitioner, in my view, is seeking to give explanation to the evidence already on record through the proposed reexamination.

In such circumstances, the present application is allowed. There will be an order in terms of prayer (a) of the application. The witness, Mr. Ashok Kumar Roychowdhury, is permitted to be reexamined.

The Commissioner appointed by the order dated August 3, 2016 is requested to undertake the further work of commission.

By consent of the parties, the date for commission will commence on and from November 26, 2016 and will continue on a day to day basis on every day during court hours until the evidence of all the parties are completed. The venue of the commission will be decided by the Commissioner.

The cause papers will be taken in terms of the order dated August 3, 2016. The Commissioner will be paid remuneration in terms of the order dated August 3, 2016. GA No. 2868 of 2016 is disposed of."

The Order dated November 8, 2016 proceeds on the basis that, there was a document which was marked as an exhibit and that, the plaintiff required to re-examine its sole witness in respect of such exhibited document. In the examination-in-chief, of the sole witness of the plaintiff no document was tendered in evidence. No document was marked as an exhibit. The Will was not proved. Signatures in the Will were not proved. This fact was not placed before the Court on November 8, 2016 by the parties. The order records that, there was a document which was marked as an exhibit. This factual incorrectness was not pointed out. The plaintiff had re-examined its witness on the basis of such order. The defendant had cross-examined such witness.

In the re-examination, the Will was marked as an exhibit. The ingredients of Section 63 of the Indian Succession Act, 1925 was sought to be satisfied in the re-examination.

Learned Senior Advocate for the plaintiff when confronted with the question of the scope of re-examination, relies upon 1999 Volume 8 Supreme Court Cases page 649 (Rammi allias Remeshwar v. State of M.P.) and 2015 Volume 3 Supreme Court Cases page 220 (Vinod Kumar v. State of Punjab) in support of the proposition that, reexamination of the witnesses is not confined to clarifications of the ambiguities arising in cross-examination. New matters can be introduced. He submits that, the defendant had a right of crossexamination which the defendant had exercised in respect of the new matters introduced in re-examination. The defendant, therefore, ought not to be allowed to take the point that, the re-examination was improper. So far as the Will being marked as an exhibit in reexamination is concerned, learned Senior Advocate for the plaintiff relies upon 2003 Volume 8 Supreme Court Cases page 752 (R. VE. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple & Anr.). He submits that, there is a difference between a document which is inadmissible in evidence and a document admitted in evidence but not adequately proved. He submits that, the Will marked as an exhibit at the trial is not a document which is not inadmissible in evidence. At best the defendant can raise an objection with regard to the mode of proof of such document. However, such an objection ought to have been raised at the time of tender of the document and not at a later stage. The defendant not having raised any objection with regard to the document being marked as exhibit during the re-examination, it cannot be heard to have any objection now.

None appears for the defendant at the hearing.

Rammi allias Remeshwar (supra) is of the view that, "17. There is an erroneous impression that re-examination should be confined to clarification of ambiguities which have been brought down in cross-examination. No doubt, ambiguities can be resolved through re-examination. But that is not the only function of the re-examiner. If the party who called the witness feels that explanation is required for any matter referred to in cross-examination he has the liberty to put any question in reexamination to get the explanation. The Public Prosecutor should formulate his questions for that purpose. Explanation may be required either when ambiguity remains regarding any answer elicited during cross-examination or even otherwise. If the Public Prosecutor feels that certain answers require more elucidation from the witness he has the freedom and the right to put such questions as he deems necessary for that purpose, subject of course to the control of the court in accordance with the other provisions. But the court cannot direct him to confine his questions to ambiguities alone which arose in crossexamination."

Vinod Kumar (supra) after noticing Rammi allias Remeshwar (supra) is of the view that, emphasis on re-examination by the prosecution is not limited to any answer given in the cross-examination, but the public prosecutor has the freedom and right to put such questions as he deems necessary to elucidate certain answers from the witness. It is not confined to clarification of ambiguities, which have been brought down in the cross-examination.

Re-examination is dealt with by Section 138 of the Evidence Act, which is as follows:- "138. * * *

Direction of re-examination.- The re-examination shall be directed to the explanation of matters referred to in crossexamination; and if new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter."

Rammi allias Remeshwar (supra) and Vinod Kumar (supra) after taking into consideration Section 138 of the Evidence Act, are of the view that, re-examination is not confined to ambiguities brought down in the cross-examination only. Section 138 of the Evidence Act permits new matters to be introduced in re-examination, with the permission of the Court. In the present case, admittedly, new matters have been introduced in re-examination. The question is whether the same was done with the permission of the Court or not. The evidence was taken in commission. Permission for re-examination was taken by the Order dated November 8, 2016. The Order dated November 8, 2016 has been set out in its entirety. Such order does not permit introduction of new materials. The petitioner did not come to the Court with an application to introduce new materials. It sought re-examination on the questions put in cross-examination. The prayer in the application being G.A. No. 2868 of 2016 seeks permission to re-examine the sole witness of the plaintiff. Nowhere in the application or in the course of moving the application on November 8, 2016 did the plaintiff ever seek permission to introduce new materials in re-examination.

New materials being introduced in re-examination without the permission of the Court and although the defendant had proceeded to cross-examine the sole witness on the new materials introduced in reexamination, such cross-examination does not cure the initial defect. The plaintiff ought to have taken prior permission of the Court to introduce new materials. The plaintiff not having done so, the conduct of the defendant in cross-examining of the witness of the plaintiff after re-examination, does not tantamount to the Court granting permission to the plaintiff to introduce new materials in re-examination.

The Will was introduced in re-examination as an exhibit. It was not even tendered during examination-in-chief. The ingredients of Section 63 of the Indian Succession Act, 1925 were neither established nor attempted to be established during the examination-in-chief. The plaintiff could have introduced it in re-examination, if it had taken a permission under Section 138 of the Evidence Act, to do so. The plaintiff did not obtain prior permission of the Court to introduce new materials. The document, therefore, although marked as an exhibit and although such marking of an exhibit, was done uncontested, the same did not cure the absence of the permission of the Court to do so. In such circumstances, the ratio of R. VE. Venkatachala Gounder (supra) has no manner of application in the facts of the present case.

The Will was marked as an exhibit in the examination-in-chief of the sole witness of the plaintiff. The ingredients of Section 63 of the Indian Succession Act, 1925 were not satisfied during the examination and cross-examination of the sole witness of the plaintiff. The evidence tendered during re-examination has to be ignored in the facts of the present case. The plaintiff, therefore, has failed to establish its case.

T.S. No 3 of 2002 is dismissed. No order as to costs.

The Department is directed to draw up and complete the decree as expeditiously as possible.