Civil Revision No. 3793 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 3793 of 2011 Date of Decision: 29.7.2011 *** Satinderjit Singh .. Petitioner Vs. Hardev Singh & Ors. .. Respondents with Civil Revision No. 3844 of 2011 *** Satinderjit Singh .. Petitioner Vs. Hardev Singh & Ors. .. Respondents CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR Present:- Mr. V.K. Sandhir, Advocate for the petitioner. *** ARVIND KUMAR, J. The petitioner is being sued by the respondents in the suit for declaration in respect of properties of Late Gopal Singh. Respondents No.1 and 2 have also filed a petition under Section 372 of the Indian Succession Act for grant of succession certificate in respect of amount lying in the name of deceased Gopal Singh in the post office. The petitioner has appeared in both the cases and the genesis of his claim hinges upon a Will dated 19.7.1986 alleged to have been executed by the deceased in his favour. Both the aforesaid revision petitions have arisen out of the proceedings in the above cases and are proposed to be disposed of by this common order. The facts of the case are not relevant for the disposal of the cases and hence are not recapitulated herein. What has necessitated the Civil Revision No. 3793 of 2011 2 petitioner-defendant to file the instant revision petitions are that, during the time when his evidence was going on and he already got examined five witnesses, he filed an application for appointment of a Handwriting and Fingerprint Expert to examine the Will dated 19.7.1986. The said application was allowed and accordingly the Will was examined by one Sukhpreet Kaur, Handwriting and Fingerprint Expert. This witness appeared in the witness box as DW6 and proved her report, tendered on the same day, as Ex.DW6/1. The operative part of the deposition made by this witness is as under:- “In the above noted case I have minutely and thoroughly examined and compared that disputed signatures alleged to be of Gopal Singh present on the will dated 19.7.86 marked as Q1 and compared the same with the standard signature of Gopal Singh marked as S1 to S8 present on the application form for RNR account of Pb. & Sind Bank dated 27.12.82 and found that the Q1 signature are produce of copied forgery and do not telly with the standard signature of Gopal Singh. My report which consists the detail regarding my opinion is Ex.DW6/1.” The cross-examination of this witness was deferred on the request of counsel for the plaintiff. However, the defendant filed an application for declaring the aforesaid witness i.e. DW6, as hostile on the averments that this witness has connived with the plaintiff and has made a false report. After the contest, the learned trial Court dismissed the said application. I have heard learned counsel for the petitioner and have gone through the paper book carefully. It is an admitted fact that the aforesaid witness(DW6) was appointed on the request of the petitioner. But only by giving her aforesaid opinion, can this witness be declared hostile? In the considered opinion of the Court such a recourse under Section 154 of Evidence Act cannot be invoked. Section 154 of the Indian Evidence Act reads as under:- Civil Revision No. 3793 of 2011 3 “The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party.” Section 154 ibid, would contemplate a situation where a party calling a witness and on examining him discovers that the witness is hostile, he can seek permission of the Court to put questions to him which may be put to him by way of cross-examination. The Hon'ble Apex Court in the Landmark judgment in the case of Satpaul Vs. Delhi Administration, AIR 1976 SC 294 observed as follows:- “30. The terms “hostile witness”, “adverse witness”, “unfavourable witness”, “unwilling witness” are all terms of English law. At Common Law, if a witness exhibited manifest antipathy, by his demeanour, answers and attitude, to the cause of the party calling him, the party was not, as a general rule, permitted to contradict him with his previous inconsistent statements, nor allowed to impeach his credit by general evidence of bad character. This rule had its foundation on the theory that by calling the witness, a party represents him to the Court as worthy of credit, and if he afterwards attacks his general character for veracity, this is not only malafide towards the Court, but, it would enable the party to destroy the witness if he spoke against him, and to make him a good witness if he spoke for him with the means in his hand of destroying his credit if he spoke against him.” In the case of Smt. Kolluri Kusuma Kumari V. Grandhi Surya Bhagawan, 1995(2) APLJ 370(HC), followed in the case of Vattikonda V. Anantharama Rao Vs. Vuganti Narayana Rao 2010(4) Civil Revision No. 3793 of 2011 4 CCC 842(AP), it has been held by the Andhra Pradesh High Court, as follows:- “It is a well settled that merely because one part of the statement of the witness was not favourable to the party, which called him, the Court should not readily conclude that he was suppressing the truth or that his testimony was adverse to the party, which called him. To grant permission to cross examine one's own witness, the Court has to exercise its power carefully taking into consideration all facts and circumstances of the case.” The Hon'ble Court while relying upon the decision in the case of N. Balaraju & Anr. Vs. Vidhyadhar 2004(4) ALD 490, further held that:- “For a witness to be treated or declared as hostile there should be some material to show that he made a statement or had done an act in support of the case of the party calling him as a witness at any earlier point of time and is speaking contrary to that.” In the case of Krutibas Sahu Vs. Madhab Das, AIR 1961 (Ori), 48, the Court while relying upon the case of Tulsiram Shaw Vs. R.C. Pal ltd., AIR 1953 Cal. 160, held that the witnesses speaking truth against the party who had called him as a witness will not necessarily be hostile witness. It is the discretion of the Court to allow the party who had called him as the witness to put question which might be put in cross examination. It has further been held in Krutibas Sahu's case (supra) that:- Section 154 says nothing about declaring a witness hostile; it allows a party with the permission of the Court as its discretion to cross examine his own witness in the same way as the adverse party; ordinarily a party calling his witness is not allowed to ask him these questions but this ordinary rule is relaxed in Section 154; the purpose of such relaxation can only be to find Civil Revision No. 3793 of 2011 5 out if the witness is one of truth and can be relied on, because cross examination is the most powerful and effective instrument for bringing out and testing truth; but that is far from saying that a witness is hostile whenever his testimony is such that it does not support the case of the party calling him; such a view would seriously undermine the independence, integrity and dignity of a witness in a Court of law. From the above principles, it is emphatically clear that a distinction must be drawn between a “hostile” and “unfavourable” witness and by merely by giving an unfavourable testimony, which goes against a party calling him, a witness cannot be declared hostile. He is hostile if he tries to injure the party's case by prevaricating or suppressing the truth or taking a inconsistent stand than what was taken by him at an earlier point of time. However, in the instant case DW6 who is an hand-writing expert, after examination of the signatures on the dispute will, found the same not similar to that appearing on certain other documents. It is not that she had taken an altogether different stand from the one taken by her earlier. Only because of her observations made as to the difference in the signatures, she cannot be declared hostile. It cannot be gathered that she was not desirous of telling the truth, rather she has given her independent opinion, which otherwise is not binding upon the trial Court. In this view of the matter, the petitioner cannot derive any benefit from the cases relied upon by his counsel viz., Srikanta Mondal Vs. Srikanta Mondal & Ors. 2003(2) ICC 957, State Vs. Ramesh Chand & Ors. 1974(I) ILR(Delhi) 129, Dadabuddappa Gouli Vs. Kale Kanu Gouli & Ors. 2000(2) LJR 302, Rehana Begum Vs. Mirza M. Shaiulla Baig(D) by LRs 2006(1) RCR(Criminal) 72 and Tanala Satyanarayana Vs. Tanali Ramarao & Ors. & Ors. 2006(4) RCR(Civil) 565. The cumulative effect of the above discussion is that, there is no illegality or perversity in the impugned orders. The revision petitions, being without any merit, are dismissed. A copy of this order be placed in the connected petition. (ARVIND KUMAR) JUDGE July 29, 2011 Jiten