IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1115 of 2008 BRAHMDEO YADAV Versus MUKHAI YADAV@MUKHLAL YADAV & ORS ----------- 2 05.08.2008 Heard counsel for the petitioner. In the opinion of this Court, the impugned order does not suffer from any jurisdictional error, inasmuch as, the Court below has considered the whole aspect of the matter and has found that merely because the defendant petitioner was of the opinion that his witness was gained over by the plaintiff, opposite party, will not be a sufficient ground for declaring him hostile or expunging his evidence. As a matter of fact, it was for the petitioner to establish that after the examination of his witness and in course of his cross-examination by the plaintiff, he had stated any fact which upon being taken into consideration, could have gone to indicate that he had gone into collusion with the plaintiff, opposite party. The declaration of witness as hostile by the - 2 - party who produces him cannot be a mechanical exercise unless the Court is satisfied to this extent. In that view of the matter, on a mere presumption that the plaintiff had asked for recall of such a witness who did not turn up for his deposition by itself will not be a sufficient circumstance for the petitioner to get the witness declared as hostile. In that view of the matter this court does not find any reason to interfere with the impugned order. The reliance placed by the petitioner on the decision of this Court in the case of Srimati Bimla Devi Vs. Rambhajan Mahto & Ors. reported in 2006 (4) PLJR 214 is wholly misconceived. In that case, the Court had come to a specific finding that the witness in course of cross-examination had stated facts adverse to the case of the party who had produced him and therefore, he was to be declared hostile irrespective of the fact that whether an application was filed or - 3 - not. Such is not a position in this case and thus facts being not similar the ratio of Bimla Devi case supra will not be applicable. Be that as it may, this Court does not find any jurisdictional error in the impugned order and accordingly this Civil Revision application is hereby dismissed. BCJ (Mihir Kumar Jha, J.)