Decided on December 04,1967

BHONDU Respondents


- (1.) THIS is an appeal by the plaintiff against a decree of the 2nd Additional District Judge, Raipur, affirming a decree of the 1st Civil Judge, Class I, Raipur.
(2.) THE facts, briefly stated are: THE suit relates to a portion of Khasra No. 257 which is the embankment of Kukri Talao, situate in Raipur. THE plot has been in occupation of the defendant Bhondu since the time of his father Thansingh. THE plaintiff served the defendant with a notice of ejectment demanding arrears of rent. THE plaintiff claims that the defendant has been his tenant since 1954 on a monthly rent of Rs. 2 and sued for ejectment since the defendant has defaulted in payment of rent since 1 st June 1958. THE defendant denied the tenancy and claimed to have been in possession of the suit plot in his own right for the last 20 years. On these facts, both Courts have concurrently found that the relation of landlord and tenant has not been established, and hence non-suited the plaintiff. Being faced with a pure question of fact, Shri N. S. Kale, learned counsel for the appellant assailed the decree on a rather ingenious ground, namely, the refusal by the first Court to permit the plaintiff under section 155 of the Evidence Act to call other independent evidence to impeach the testimony of P. W. 4 Chhotelal, has vitiated the trial. According to the learned counsel, the evidence of Chhotelal had a direct bearing on the case of the plaintiff who alleges that after the death of Thansingh, the tenancy was split up between his two sons, the defendant and Chhotelal and since 1954 they are admittedly in occupation of adjacent plots over which they have their respective huts. This would be a piece of circumstantial evidence lending support to the plaintiff's case. In his statement, the plaintiff has stated that Chhotelal had agreed to pay Re. 1 per month as rent. The plaintiff has filed a receipt Ex. P-6 which purports to be signed by P. W. 4 Chhotelal, but in the witness- box Chhotelal denied the execution of this receipt and stated that he does not know English at all. The plaintiff, accordingly, applied on 18th July 1963, for an opportunity for his comparing his signature and to seek the opinion of the expert as the witness knew English and has appended his signature at "so many places in the office and elsewhere" but being brother of the defendant falsely denied execution of the rent receipt Ex. P-6, proof of which would have made the plaintiff's testimony probable. Shri A.R. Choubey, learned counsel for the respondent strenuously opposes the suggestion that the trial of the suit is, in any manner, vitiated by the rejection of the plaintiff's application dated 18th July, 1963, and contends the rejection was justified because the application came after closure of the plaintiff's case. He further urges that the signature of Chhotelal on Ex. P-6 will have no bearing on the real question in controversy between the parties namely, whether the defendant was a tenant of the plaintiff. Apart from this, the learned counsel argues that the finding reached by the Courts below that the contract of tenancy is not established, is a finding of fact.
(3.) FOR a proper appreciation of the contentions raised on this aspect of the case, it is necessary to set out the circumstances under which the application was rejected. After the closure of evidence on 18th July 1963, the plaintiff moved the application for calling other independent evidence to impeach the testimony of P. W. 4 Chhotelal. The application was rejected forthwith by the first Court with the following reasons: "The credibility of the said witness is not in issue in this case. Moreover when the witness denies the knowledge of English language itself question of getting handwriting expert's opinion has no meaning. A party cannot also be allowed to discredit his own witness unless the said witness has, with the permission of the Court, been declared hostile." The appeal Court reiterated this action, by stating: "Strangely enough this witness was not declared hostile by the plaintiff and, therefore, the learned lower Court rightly disallowed the attempt by the plaintiff to impeach this witness by examining the hand-writing expert to prove that Chhotelal has signed this receipt. This leaves the plaintiff's testimony alone " This brings me to the question whether the plaintiff had the right to impeach the testimony of the witness under section 155 and if so, what was the stage when the right should have been exercised. There is no manner of doubt that the Courts were wrong in rejecting the application on the ground that the plaintiff could not be allowed to discredit his own witness unless he was, with the permission of the Court, declared hostile. Such a view of the right given to a party under section 155 of the Evidence Act is wholly unwarranted. That section nowhere requires the exercise of the right dependent upon fulfilment of this condition.;

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