Ganga Devi G. @ Ganga v. Dr. Lathakumari K.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN THURSDAY, THE 21[ST] DAY OF OCTOBER 2021 / 29TH ASWINA, 1943** **RFA NO. 658 OF 2016** **AGAINST THE DECREE & JUDGMENT IN OS 26/2015 OF SUB COURT, KARUNAGAPPALLY, KOLLAM** ## **APPELLANT/DEFENDANT:** GANGA DEVI G. @ GANGA AGED 45/15, D/O.GOMATHI AMMA,SREEMANGALAM,KUNNATHOOR WEST,KUNNATHOOR EAST P.O. KUNNATHOOR WEST MURI,KUNNATHOOR VILLAGE, KOLLAM. BY ADV SRI.V.PHILIP MATHEW ## **RESPONDENT/PLAINTIFF:** DR. LATHAKUMARI K. AGED 51/15, W/O.RAJENDRAN NAIR,MANGATTU KIZHAKKATHIL VEEDU,KUNNATHOOR WEST, KUNNATHOOR EAST P.O.,KUNNATHOOR WEST MURI- 690540,KUNNATHOOR VILLAGE, KOLLAM. BY ADVS. SRI.ASHWIN SETHUMADHAVAN SRI.A.JAYASANKAR SRI.MANU GOVIND SMT.B.MEERA SRI.S.SABARINADH THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 21.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RFA No.658 of 2016 2 ## **CR** ## **JUDGMENT** A decree was passed in a suit for realization of money based on a cheque by the trial court, against which the defendant came up mainly on the ground that the court below accepted additional proof affidavit and documents produced along with it exhibited as A3, A4 and A5,without affording an opportunity of crossexamination. An additional proof affidavit was submitted after the examination of plaintiff and closing of the evidence. Along with the additional affidavit, three documents were produced, which were marked as Exts.A3 to A5. Additional affidavit and the documents marked were taken up, discussed and appreciated as piece of evidence and relied on by the trial court without affording an opportunity to crossexamine the witness or the documents thereof. Thereby, the mandate under Sections 137 and 138 of the Evidence Act has been overlooked by the trial court. The right of cross-examination of a witness on any crucial aspect and on the documents relied on is an RFA No.658 of 2016 3 indefeasible right. The only exception to this general rule is under Section 139 of the Evidence Act, when a person is summoned for mere production of a document and not as a witness. There shall not be any misunderstanding between denial of right of cross- examination, failure to conduct cross-examination and waiver of such right of cross-examination. Among these three, the first one alone would make the chief examination inadmissible in evidence. There may be cases in which there is failure on the part of opposite party or opponent to cross examine the witness or waiver of the right of cross examination. In both these cases, the oral testimony by way of chief examination would acquire the character of evidence. 2. In **State of U.P. v. Nahar Singh (dead) [(1998)** **3 SCC 561)** ,the Apex Court had considered the principle embodied under Section 138 of the Evidence Act, which confers a valuable right of cross-examination of a witness and documents tendered in evidence by opposite party and the enlarged scope under Section 146 of the Evidence Act to cross examine a witness to RFA No.658 of 2016 4 test his veracity. 3. The right of cross-examination is not a mere formality to be complied with, but it should reflect sufficient opportunity afforded to cross-examine the witness on all disputed matters. The extensive nature of right of cross-examination was also laid down by the Apex Court in **Dahyabhai Chhaganbhai Thakker v. State of Gujarat (AIR 1964 SC 1563)** , wherein a new and important matter was allowed to be introduced in reexamination without affording sufficient opportunity to cross-examine the witness on the newly introduced matter and it was held that the three minutes time given for cross-examination is insufficient. 4. Then comes the question what would be the legal position when the witness died after the chief examination, but before cross-examination or before completion of cross-examination. It was held by the Apex Court in **Satnam Singh v. Sadhu Singh 2001 (8) Supreme 574** ) that in such situation, it is not permissible to eschew the entire oral evidence tendered by the witness. The relevant portion of the judgment is extracted below: RFA No.658 of 2016 5 _“It has come on evidence on record that Teja Singh, one of the attesting witnesses, after his examination-inchief died and therefore, he could not put up for cross-examination. Under such circumstances, the evidence of Teja Singh could not have been excluded. Similarly, the evidence of Jagdish Singh Uppal, the Scribe, ought not to have been rejected on the ground that he did not know the parties personally. We are, therefore, of the opinion that the view taken by the High Court in rejecting the plaintiffs' evidence was erroneous.”_ 5. When the witness died after chief examination and before cross-examination, the court cannot eschew the entire oral testimony, but should seek corroboration by other pieces of evidence and in the absence of such corroboration, the court will be justified in rejecting the entire version given in chief examination. The court must be so cautious while rejecting the entire version given in chief examination, when the witness died before cross- examination. A different criteria can be applied when cross-examination was started, but not completed. The portion of evidence which was subjected to crossexamination will form part of evidence, while the rest RFA No.658 of 2016 6 of the portion needs corroboration. 6. A proof affidavit, additional proof affidavit or documents tendered, if not allowed to be tested by cross-examination, will not form part of the evidence. Like wise, mere marking of documents would not itself amount to acceptance in evidence, except when marked with a prefix or suffix “not objected” and it should find a place in the proceedings, wherein the document was marked, otherwise, the marking of document should be only for the purpose of its identity. At this juncture, it is worth to note that a Constitution Bench of the Apex Court in **State of Karnataka v. State of A.P. [2000 KHC 1833 = (2000) 10 SCC 607]** , while marking interse correspondence as exhibits as agreed by the parties, clarified that it would not mean that the truth of the contents is admitted by the other side. The principle behind it is so clear that marking of a document does not by itself amount to admission in evidence, unless it is specifically admitted by the parties. The permission or consent granted to mark the document shall not be misconstrued as an admission to the content of the document. RFA No.658 of 2016 7 7. The Apex Court in yet another decision in **Narbada Devi Gupta v. Birendra Kumar Jaiswal and Another (2003 KHC 1695 = AIR 2004 SC 175)** has laid down the legal position that mere production and marking of a document as exhibit by the court cannot be held to be due proof. However, the situation is different where the documents are produced, and they are admitted by the opposite party and exhibited by the court based on the admission. The relevant portion of the said judgment is extracted below for reference: _“Reliance is heavily placed on behalf of the appellant on the case of Ramji Dayawala & Sons (P) Ltd v. Invest Import (1931 (1) SCC 80). The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held, to be a due proof of its contents. Its execution has to be proved by admissible evidence that is by the 'evidence of those persons who can vouchsafe for the truth of the facts in issue'. The situation is, however, different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as exhibits by the court. We find no force in the argument advanced on behalf of the appellant that as the mark of exhibits has been put on the back portions of the rent receipts near the place where the admitted signatures of the plaintiff appear, the rent receipts as a whole_ RFA No.658 of 2016 8 _cannot be treated to have been exhibited as an admitted documents.”_ 8. The legal necessity to record whether the document was marked without any objection or subject to proof was also considered by this Court in **Nilavarnisa and Others v. M.M.Faizal and Others** **(2019(1) KHC 699 = 2019(1)KLT 652)** and laid down that “even if there is a consent given by the opposite side to mark a document, if the contents of the document is specifically subject to proof, the documents shall be marked by the Tribunal only subject to proof and the same shall be evident from the order sheet, B Diary and it is apt that a mention is made in the award also”. 9. The decree and judgment of the court below hence cannot be sustained and liable to be set aside. I do so. The case is remanded back to the trial court so as to afford an opportunity to cross examine the plaintiff on the additional proof affidavit and documents Exts.A3 to A5. The parties may also be permitted to adduce additional evidence, if any and shall dispose of the suit within a time schedule of RFA No.658 of 2016 9 four months from the date of appearance of parties. The parties shall appear before the trial court on 22/11/2021. The appeal is allowed in part accordingly. Sd/- sv **P.SOMARAJAN JUDGE**