The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 1094 OF 2024 Sukanti Dash …. Petitioner Mr. Ajit Chandra Mohapatra, Advocate Sanjib Kumar Parida …. Opp. Party -versus-
Legal Reasoning
Mr. Banshidhar Baug, Advocate CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 11.12.2024 2. 1. This matter is taken up through hybrid mode. 2. The Petitioner in this CMP seeks to assail the order dated 6th September, 2024 (Annexure-1) passed in C.S. No.334 of 2019, whereby learned 5th Additional Civil Judge (Senior Division), Cuttack directed D.W.1 to answer the questions to be asked by the Plaintiff on her pleadings in the written statement. 3. Mr. Mohapatra, learned counsel for the Petitioner submits that the suit has been filed by the Plaintiff-Opposite Party for realization of Rs.15.00 lakh from the Defendant- Petitioner. D.W.1 in her cross-examination refused to answer certain questions more-fully stated at paragraphs-26, 28 and 29 thereof. Thereafter, the Plaintiff-Opposite Party filed an application on 29th August, 2024 to compel/direct D.W.1 (Defendant) to answer the relevant questions to be put to her in her cross-examination. Considering such application, learned trial Court vide order dated 6th September, 2024 relying upon the case law in Muddasani Venkata Narasaiah (D) Th. LRs. –v- Page 1 of 5 Muddasani Sarojana, reported in AIR 2016 SC 2250, directed D.W.1 (Defendant) to answer questions put to her at paragraphs- 26, 28 and 29 of her cross-examination. Assailing the said order, this CMP has been filed. 3.1 It is further submitted by Mr. Mohapatra, learned counsel for the Petitioner that the witness cannot be compelled to answer the questions to be put to her. If the witness does not answer relevant question put to it, the Court may take resort the provisions under Section 148 of the India Evidence Act, 1972 (for short ‘the Act’). Thus, learned trial Court should not have directed D.W.1 to answer those questions. It is his submission that learned trial Court while adjudicating the matter has categorically stated that the questions about the alleged marriage between the Plaintiff and Defendant and the guests who attended the alleged marriage, appear to be irrelevant. Thus, the witness should not have been compelled to answer questions put to her at paragraphs-26, 28 and 29 of her cross-examination. Accordingly, he prays for setting aside the impugned order. 4. Mr. Baug, learned counsel for the Plaintiff-Opposite Party vehemently objects to the same drawing attention of this Court to Section 132 of the Act, which reads as under: “132. Witness not excused from answering on the ground that answer will criminate - A witness shall not be excused from answering any question, as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, Page 2 of 5 or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind: Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him, in any criminal proceeding, except a prosecution for giving false evidence by such answer.” In view of the proviso to Section 132 of the Act, a witness can be compelled to give answer to the question at the cost of prosecution for giving false evidence, if any. He also relies upon Section 148 of the Act, which reads thus: “148. Court to decide when question shall be asked and when witness compelled to answer- If any such question relates to a matter not relevant to the suit or proceeding, except in so far as it affects the credit of the witness by injuring his character, the Court shall decide whether or not the witness shall be compelled to answer it, and may, if it thinks fit, warn the witness that he is not obliged to answer it. In exercising its discretion, the Court shall have regard to the following considerations :- (1) Such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies; (2) Such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character, that the truth of the imputation would not affect, or would affect in a slight degree, the opinion o the Court as to the credibility of the witness on the matter to which he testifies; Page 3 of 5 (3) Such questions are improper if there is a great disproportion between the importance of the the witness's character and the importance of his evidence; imputation made against (4) The Court may, if it sees fit, draw from the witness's refusal to answer, the inference that the answer if given would be unfavourable.” He, therefore, submits that there is no illegality in directing D.W.1 (Defendant) to answer the questions put to her at paragraphs-26, 28 and 29 of her cross-examination. Hence, he prays for dismissal of the CMP. 5. Taking into consideration the submissions made by learned counsel for the parties, this Court finds that learned trial Court while adjudicating the matter did not at all take into consideration the provisions under Sections 114, 132 and 148 of the Act before directing D.W.1 (Defendant) to answer the questions put to her. There cannot be any quarrel to the principles settled in Muddasani Venkata Narasaiah (D) Th. LRs (supra), but the issue involved in the instant case is with regard to compelling a witness to answer questions put to it. However, if the question(s) put is/are relevant, then the Court may in its discretion ask the witness to answer the same. In the instant case, learned trial Court specifically opined that the questions regarding alleged marriage between the parties and the guests who attended the marriage function appear to be not relevant. Thus, learned trial Court has committed an error in neither taking into consideration the provisions under Sections 114, 132 and 148 of the Evidence Act nor the purpose of compelling the witness to answer question(s) not relevant for Page 4 of 5 adjudication of the suit. As such, the impugned order (Annexure- 1) is not sustainable and is accordingly set aside. The matter is remitted to learned trial Court for fresh adjudication of the petition filed by the Plaintiff-Opposite Party on 29.8.2024 keeping in mind the discussion/observations made hereinabove and giving opportunity of hearing to the parties concerned. 6. The CMP is allowed to the aforesaid extent. Urgent certified copy of this order be granted on proper application. bks (K.R. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 12-Dec-2024 19:11:20 Page 5 of 5