Kiran Katyal & Ors. v. Zahoor Ahmad

12. On the said objection, the learned ADJ came to pass the impugned order dated 1st October 2022 supra.

13. I have heard Mr. A.K. Singla, learned Senior Counsel for the petitioners and Mr. Mukul Talwar, learned Senior Counsel for the respondent.

14. The impugned order disallows the very first question posed to the respondent as PW-1 by learned Counsel for the petitioners on the ground that the petitioners had, in their written statement, and vide Exhibit PW-1/20, allegedly admitted the factum of ownership of the respondent over the suit property.

15. To my mind, even if this were to be treated as correct, that cannot constitute a ground to disallow the question posed by learned counsel for the petitioners.

16. To a query from the court as to the provision under which such a question could be disallowed, Mr. Mukul Talwar, learned Senior Counsel for the respondent has invited my attention to Section 148 of the Indian Evidence Act, 1872 (the Evidence Act) which reads as under:

17. Mr. Talwar submits that, though the present case may not fall within one of the four considerations (1) to (4) enumerated in Section 148, the learned ADJ was, nonetheless, justified in disallowing the question posed to PW-1 by learned Counsel for the petitioners as it was not relevant. He seeks to support the impugned order passed by the learned ADJ on the basis of the opening words of Section 148, which reads “if any such question relates to a matter not relevant to the suit or proceeding.........”. Inasmuch as the defendants-petitioners had, according to Mr. Talwar, admitted the title of the respondent over the suit property, applying the test envisaged by the opening words of Section 148, the learned ADJ had rightly disallowed the question posed by learned Counsel for the petitioners.

18. I am unable to subscribe to the views expressed by Mr. Talwar, for more than one reason.

19. Section 148 does not confer any omnibus power to a court to disallow questions in cross-examination. Considerations (1) to (4) in the said section have not been provided by way of examples. What the section says is that, in exercising discretion as to whether to compel a witness to answer an irrelevant question, the court shall have regard to the four considerations (1) to (4) enumerated in that Section. The Court does not, therefore, have, before it, a tabula rasa. The question had to be decided having regard to the four considerations enumerated in Section 148. If none of the four considerations apply, ordinarily, Section 148 would not permit disallowing of the question.

20. Mr. Mukul Talwar fairly does not seek to bring his case within any of the four enumerated considerations in Section 148. He, however, relies on the opening words of the Section, which permit disallowance of questions which are not relevant to the matter in issue in the suit. At a plain glance, these words apply where the point on which the question was being posed was irrelevant to the proceedings.

21. There is a great degree of difference between a point which is irrelevant and a point on an issue which, according to the opposite party, may stand admitted. Even if a particular issue of facts stands admitted, it continues, nonetheless, to retain relevance. So long it retains relevance, it can be made subject matter of question posed to the witness.

22. Section 5 of the Evidence Act expressly allows evidence to be given, in any suit or proceeding, of the existence, or non-existence, of every fact in issue or of facts declared, in the succeeding provisions of Chapter II, to be relevant, and expressly proscribes evidence to be given of any other fact.

23. The expression “facts in issue” is defined, in Section 3, thus: “ “Facts in issue”. – The expression “facts in issue” means and includes – any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows.” The expression “facts in issue” is, thus, defined, in the Evidence Act, in the “means and includes” format. Definitions which use “means and includes” are intended to be exhaustive in nature. The following passages, from D.D.A. v. Bhola Nath Sharma[1] are instructive regarding the difference in the manner in which definition clauses are to be interpreted, depending on the format in which they are worded: “25. The definition of the expressions “local authority” and “person interested” are inclusive and not exhaustive. The difference between exhaustive and inclusive definitions has been explained in P. Kasilingam v. P.S.G. College of Technology[2] in the following words: (SCC p.356, para 19) “19. … A particular expression is often defined by the legislature by using the word „means‟ or the word „includes‟. Sometimes the words „means and includes‟ are used. The use of the word „means‟ indicates that „definition is a hard-and-fast definition, and no other meaning can be assigned to the expression than is put down in definition‟. (See Gough v. Gough[3]; Punjab Land Development and Reclamation Corpn. Ltd. v. Labour Court[4], SCC p. 717, para 72.) The word „includes‟ when used, enlarges the meaning of the expression defined so as to comprehend not only such things as they signify according to their natural import but also those things which the clause declares that they shall include. The words „means and includes‟, on the other hand, indicate „an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions‟. [See Dilworth v. Commr. of Stamps[5] (Lord Watson); Mahalakshmi Oil Mills v. State of A.P.6, SCC p. 170, para 11.] The use of the words „means and includes‟ in Rule 2(b) would, therefore, suggest that the definition of „college‟ is intended to be exhaustive and not extensive and would cover only the educational institutions falling in the categories specified in Rule 2(b) and other educational institutions are not comprehended. Insofar as engineering colleges are concerned, their exclusion may be for the reason that the opening and running of the private engineering colleges are controlled through the Board of Technical Education and Training and the Director of Technical Education in accordance with the directions issued by the AICTE from time to time.”

26. In Bharat Coop. Bank (Mumbai) Ltd. v. Employees Union[7] this Court again considered the difference between the inclusive and exhaustive definitions and observed: (SCC p. 695, para 23) “23. … when in the definition clause given in any statute the word „means‟ is used, what follows is intended to speak 1995 Supp (2) SCC 348 (1891) 2 QB 665 (CA)

1899 AC 99: (1895-99) All ER Rep Ext 1576 exhaustively. When the word „means‟ is used in the definition … it is a „hard-and-fast‟ definition and no meaning other than that which is put in the definition can be assigned to the same. … On the other hand, when the word „includes‟ is used in the definition, the legislature does not intend to restrict the definition: it makes the definition enumerative but not exhaustive. That is to say, the term defined will retain its ordinary meaning but its scope would be extended to bring within it matters, which in its ordinary meaning may or may not comprise. Therefore, the use of the word „means‟ followed by the word „includes‟ in [the definition of „banking company‟ in] Section 2(bb) of the ID Act is clearly indicative of the legislative intent to make the definition exhaustive and would cover only those banking companies which fall within the purview of the definition and no other.” *****

28. In Hamdard (Wakf) Laboratories v. Labour Commr.[8] it was held as under: (SCC p. 294, para 33)

”

24. “Relevant” is defined, in Section 3 of the Evidence Act, thus: “Relevant. – One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.”

25. Relevancy of facts form subject matter of Chapter II of the Evidence Act, comprising Sections 5 to 55.

26. Given the amplitude of the expressions “fact and issue” and “relevant fact” as contained in Section 3 of the Evidence Act, it is clear that the expression “every fact in issue and of such other facts as are hereinafter declared to be relevant”, employed by Section 5, are wide and compendious, and embrace an expansive factual panoply.

27. Section 6 of the Evidence Act treats “facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction” as relevant. “Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relevant”, vide Section 7. Section 9 ordains that “facts necessary to explain or introduce a fact in issue or relevant fact … or which show the relation of parties by whom any such fact was transacted” are relevant insofar as they are necessary for that purpose.

28. Viewed thus, there can be no gainsaying that, in the present case, the title of the respondent over the suit property was relevant. Mr. Mukul Talwar, learned Senior Counsel also did not dispute this fact. In fact, the issues framed by this Court in the suit itself indicate that the title of the respondent over the suit property was a relevant fact. Equally relevant, per consequence, would be rival titular claims to the suit property, if laid.

29. That being so, a question with respect to the issue of title of the respondent over the suit property cannot be treated as a question relating to a matter not relevant or to the suit or proceeding.

30. Thus, even if it were to be presumed that there was an admission on the aspect of title, that cannot be a ground to disallow a question on that aspect, so long as the aspect remained relevant to the suit or proceeding before the Court. The question of whether the fact, with respect to which a question is posed to a witness while recording evidence, stands admitted or denied, is not regarded, by the Evidence Act, as a valid consideration, while deciding whether to allow or disallow the question. If the question relates to a relevant fact, it has to be allowed. That is the mandate of Section 5.

31. Section 48 is, in fact, in the nature of an exception to Section 5. Section 5 permits, unequivocally, evidence to be given “of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant”, i.e., of every fact in issue or relevant fact. Section 148 envisages the circumstance in which the Court may require a witness to answer a question which relates to an matter not relevant to the suit or proceeding. The occasion to take recourse to Section 148, therefore, arises only if the question that is asked relates to a matter not relevant to the suit or proceeding. While deciding whether, even in respect of such an “irrelevant” question, the witness should be compelled to answer, the Court is required to “have regard to” the four considerations (1) to (4) enumerated in Section 148.

32. No occasion arises, in the present case, to advert to Section 148, as the issue of the presence, or absence, of titular rights of the parties over the suit property was a fact which was, both “in issue” as well as “relevant” to the suit proceedings. As such, evidence, of the fact could be led, by virtue of Section 5. Section 148, which would be attracted only if the fact was irrelevant, has no application at all.

33. On first principles, the manner in which a party is to proceed with the recording of evidence should remain, ideally, the pristine prerogative of that party. A court should not, save in the rarest of circumstances, monitor the manner in which the evidence is being recorded or navigate the questions which are posed by one party to the witness of the other.

34. Having said that, it is always open to the court, where it feels that the questions which are posed are vexatious, repetitive or otherwise abusive of the legal process, to disallow such questions.

35. The circumstances in which a court may interfere with the questions which are being posed to a witness must necessarily take guidance, apart from Section 148, from Sections 149 to 159 of Evidence Act which, for the purpose of instruction, may be reproduced thus:

36. The query put learned Counsel for the petitioners to the respondent as PW-1, which the impugned order disallowed, cannot be said to fall within any of the above-extracted provisions of the Evidence Act. Nor can its disallowance be justified under Section

148.

37. Mr. Talwar places reliance on a judgment rendered by this Bench in Ravinder Suri v. Dayawati[9]. The judgement, if anything, militates against the stand that Mr Talwar seeks to canvas, as is apparent from the following passage from the report:

38. In that view of the matter, the impugned order clearly invites interference under Article 227 of the Constitution of India.

39. It is made clear that this Court has only examined the aspect of whether the first query put by learned Counsel for the petitioner to the respondent as PW-1 was rightly disallowed.

40. This judgment should not be treated as an expression of opinion on any other aspect of the case.

41. The impugned order is therefore set aside. The objection raised by the respondent, as noted in the impugned order, accordingly stands dismissed. The petition is accordingly is allowed with no order as to costs.

C. HARI SHANKAR, J.