Friday, December 15, 2017 | ePaper

Allowing witness to correct his deposition shall make cross-examination a mockery

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Appellate Division :
(Civil)
Md Abdul Wahhab Miah J
Nazmun Ara Sultana J
Md Imman Ali J
Md Nizamul Huq J
Judgment
July 28th, 2016
Sharifullah (Md) and
anothers .... Petitioner
vs
Md Tafazzal Hossain and another-Respondents
Code of Civil Procedure (V of 1908)
Order XVIII, rule 17
Evidence Act (1 of 1872)
Sections 137 and 138
A witness is not entitled to correct his deposition after putting his signature in the deposition sheet and if such a recourse is allowed to be practised by a witness, then the whole purpose of cross examination shall be frustrated and in the process the cross examination shall become a mockery. . ..... (7)
Aminul Haque Advocate instructed by Madhu Malati Chowdhury Barua, Advocate-on-Record-For the Petitioner.
Nurul Islam Chowdhury, Advocate-on-Record-For Respondent No.1.
None Represented -Respondent No.2.
Judgment
Md Abdul Wahhab Miah J : The delay of 15 days in filing the petition is condoned.
2. This petition for leave to appeal has been filed against the judgment and order dated 19-4-2012 passed by a learned Judge of the Single Bench of the High Court Division in Civil Revision No. 561 of 1999 making the Rule absolute with some direction.
3. Short facts necessary to dispose this petition are that respondent No.1 as the plaintiff filed Title Suit No. 284 of 1983 in the Court of Subordinate Judge, 4th Court, Dhaka for partition of the suit land. Subsequently the suit being transferred to the Court of Subordinate Judge and Artha Rin Adalat No. 4, Dhaka was renumbered as Title Suit No. 270 of 1985 and then again it was renumbered as Title Suit No.41 of 1992 on being transferred to the Court of Artha Rin Adalat and Subordinate Judge, Dhaka.
4. The suit was decreed exparte on 2-8-1993 against the defendant-petitioner herein and respondent No. 2. The defendant-petitioner along with the other defendant (respondent No. 2, herein) filed an application under Order IX, rule 13 of the Code of Civil Procedure (the Code) for setting aside the ex-parte decree. The application was registered as Miscellaneous Case No.27 of 1994.
5. Respondent No.1 as the plaintiff filed written objection to contest the miscellaneous case.
The case being ready for peremptory hearing, hearing commenced and after examination of the defendant-petitioner (in the miscellaneous case), the plaintiff-opposite party (in the miscellaneous case) was examined as OPW 1 on 19-11-1998.
Then on 17-1-1999 i.e. after almost two months he (the plaintiff-opposite party) filed an application under Sections 151 and 152 of the Code for correction of his depositions by expunging some portions of his statement in cross examination.
The trial Court by its order of the same date (17-1-1999) rejected the prayer. Challenging this order the plaintiff filed the above mentioned civil revision before the High Court Division. A learned Judge of the Single Bench by the impugned judgment and order made the Rule absolute directing the trial Court "to correct the deposition and cross examination of the OPW. I and to dispose of the case within 4(four) months from the date of receipts of this judgment and order in accordance with law"; hence this petition of leave to appeal.
6. Heard Mr Aminul Haque, learned Counsel for the petitioner and Mr Nurul Islam Chowdhury, learned Advocate-on-Record who entered caveat on behalf of plaintiff-respondent No. 1.
7. We have considered the provisions of Order XVIII of the Code and Sections 137 and 137 of the Evidence Act. These provisions of the respective law have dealt with the hearing of the suit and examination of witnesses.
From a reading of these provisions of laws it appears to us that a witness is not entitled to correct his deposition after putting his signature in the deposition sheet and if such a recourse is allowed to be practised by a witness, then the whole purpose of cross examination shall be frustrated and in the process the cross examination shall become a mockery.
But the High Court Division totally to consider the above mentioned provisions of the laws and also the impact of such a recourse resorted to by the plaintiff-opposite party and it, in a very casual manner, allowed the prayer of the plaintiff-opposite party.
So, the High Court Division committed an apparent error in making the Rule absolute with the direction as quoted hereinbefore, and as such, the impugned judgment and order cannot be sustained and that must be set aside.
Since we have heard the learned Counsel for the petitioner and the learned Advocate-on Record for plaintiff-respondent No.1, we are inclined to interfere with the impugned judgment and order in a summary manner without giving any leave, as if leave is granted it would cause delay in the disposal of the miscellaneous case, the case being of the year 1994. Accordingly, this petition is disposed of in the following terms:
8. The impugned judgment and order of the High Court Division is set aside and those of the trial Court is restored.

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