P L D 1971 Dacca 118 (PLP)

Dates of hearing : 16th, 17th and 18th July 1969. This Rule is directed against an order dated December 12, 1966, passed by Munsif, 2nd Court, Kishoreganj, granting the prayer for examination of an expert witness. The facts may briefly be stated. The petitioners instituted Title Suit No. 109 of 1957 for a declaration of title to and for khas possession of the suit land on eviction of the defendants therefrom. The case of the plaintiffs‑petitioners is that they purchased the suit property from one Girija Kanta Pandit through his constituted attorney by a registered deed of conveyance dated January 7, 1957. Defendant No. 1, opposite‑party No. 1 herein, sought to resist the claim of the petitioners on the ground that on June 18, 1952 Girija Kanta Pandit executed a bainapatra a deed of agreement, to sell the suit property to him and after having received a part of the consideration money placed opposite‑party No. 1 in possession thereof. The genuineness of the bainapatra was challenged by the petitioners and at their instance it was sent to a Handwriting Expert in the employ of the Government. S. R. Khadim, Hand writing Expert, attached to C. I. D., East Pakistan, examined the balnapatra and submitted a report on October 11, 1958. The report it appears, went against opposite‑party No.

1. At the instance of opposite‑party No. 1 the bainapatra was sent thereafter to A. N. M. Tabib, a private Handwriting Expert. The report of Tabib also was unfavourable to opposite‑party No. 1 S. R. Khadim and A. N. M. Tabib, were examined in Court, on October 24, 1960 at the instance of the petitioners and opposite‑party No. 1 respectively. It appears that opposite‑party No. 1 also filed a suit being Title Suit No. 65 of 1959 for specific performance of contract on the basis of the bainapatra in question with respect [to the identical property in the present suit. On December 6, 1966, opposite‑party No. 1 filed an application to stay further pro ceedings of the present suit pending examination of the Handwriting Expert in Title Suit No. 65 of 1959 and the receipt of certain records from the office of the Deputy Commissioner. This application was rejected by the learned Munsif by Order No. 79 of the date which reads as follows:‑ "Plaintiffs filed hazira. The defendant filed a petition praying for shifting of the date of P. hearing on the ground stated therein. Copy received by the other side. Objection raised. Perused the petition, heard the learned Pleader for both the sides. Ground does not seem to be genuine. Hence the prayer rejected." On the same date opposite‑party No. 1 filed another application, and as it would appear from the sequence of events, after the first application just referred to had been rejected. By the impugned order the learned Munsif allowed the later application having observed, "the defendant No. 1 shall pay Rs. 15 as costs (c.p.) as the petition for examination of expert is filed at a very late stage. It has been contended on behalf of the petitioners that the learned Munsif assigned no reason why, after A. N. M. Tabib had once been examined on October 24, 1960, the prayer for his examination again by the party who called him should at all be allowed. The learned Munsif, it is true, did not assign any reason in the body of the order but he referred to the grounds in the application without stating what in fact they were. The grounds seem to be that since the report of A. N. M. Tabib was prejudicial to the case of opposite‑party No. 1, Tabib was called as a witness at his instance for cross‑examination, but inadvertantly the learned lawyer then engaged by him, did not cross‑examine the witness. It has, however, been contended further on behalf of the petitioners that opposite‑party No. 1 could not cross‑examine Tabib since it was not established that he was a hostile witness. The learned Advocate for opposite party No. 1 in reply has referred to the provisions of section 154 of the Evidence Act and has sought to argue that it is open for the party to cross‑examine his witness with the permission of the Court without declaring him hostile. In support of the argument he cited several decisions which I do not consider worthwhile to refer as I fully agree with the view. The question in the present case is whether such an opportunity as is sought for now was earlier available to the party and whether the grounds shown are sufficient for the grant of the prayer. In order that a party may be entitled to invoke section 154 A of the Evidence Act it is necessary to establish that the witness is guilty of prevarication, or that he is inconsistent in his statement, or tries to suppress the truth or that he bears an animosity towards the party who calls him. In the absence of an allegation of the above nature, a party, in my opinion, is not entitled to cross‑examine his witness to impeach his credit. It has been held in the case of Abed Ali Mid v. Ismail Mia (P L D 1961 Dacca 85) by Asir, J. sitting with Akbar, J. as his Lordship then was, that a hostile animus and that the witness not being desirous of telling the truth should weigh in the matter of allowing the prayer for cross‑examining a witness cited by a particular party. A. N. M. Tabib was examined once before and it was up to opposite‑party No. 1 then to show the existence of circumstances in which it was necessary for him to put to the witness any question which might have been put in cross‑examination and seek permission of the Court accordingly. It is to be remembered that Tabib sought to be examined by opposite‑party No. 1 was an expert witness who expressed certain opinion in regard to a questioned document. It has not been established that he bore any animosity towards the party who called him as a witness for examination nor there is any material to indicate that he was trying to suppress the truth. It is neither the case that the opinion in regard to which he was sought to be examined was inconsistent with any other opinion of his on the subject‑matter. In the absence of such premises being established I do not think that opposite‑party No. 1 was entitled to recall the witness to cross‑examine him. I am constrained to think that the learned Munsif acted illegally and with material irregularity in the exercise of his jurisdiction in granting the prayer for examination of A. N. M. Tabib. For the reasons indicated above I make the Rule absolute. The impugned order is set aside. I make no order as to costs. S. Q. Rule made absolute.