While leaving no scope for ambiguity of any kind, the Delhi High Court has in a recent, refreshing, robust, remarkable and rational judgment titled Capitol Art House (P) Ltd in CS(OS) 3379/2015 & I.A. 3153/2020 (u/S 151 CPC), I.A. 4125/2021(for directions) and cited in 2022 LiveLaw (Del) 544 has observed that the opportunity of re-examination cannot be used to give a chance to a witness to undo its statement made in cross-examination and fill in the lacunae in evidence. It must be mentioned here that the Single Judge Bench of Hon’ble Justice Mr Amit Bansal was dealing with a suit filed seeking to injunct the defendants, who were occupants, from unlawfully entering any part of the first floor including the balcony of a shop on the ground floor of the premises. We thus see that the Court was of the considered view that no case for re-examination was made out.

To start with, this brief, brilliant, and balanced oral judgment authored by a Single Judge Bench of Delhi High Court comprising of Hon’ble Justice Mr Amit Bansal sets the ball rolling by first and foremost putting forth in para 1 that, This matter has been listed on office noting pursuant to the proceedings before the Local Commissioner on 20th May, 2022 appointed by this Court for recording of evidence.

To put things in perspective, the Bench then envisages in para 2 that:
The present suit has been filed seeking to, inter alia, injunct the defendants/occupants from unlawfully entering any part of the first floor including the balcony of Shop No.4/6 on the ground floor of the premises bearing No.4/1-14 (A-1/4), Eleven Style Mile, Ward 1, Mehrauli, New Delhi. Issues were framed in the suit on 02nd August, 2019 and a Local Commissioner was appointed to record evidence of the parties. An initial sum of Rs.1,00,000/- was fixed as the fees to be paid to the Local Commissioner, which was to be borne by the plaintiff.

Truth be told, the Bench then states in para 3 that:
It has been noted in the proceedings before the Local Commissioner on 20th May, 2022 that the counsel for the defendant made a request to re-examine DW-1, which request was opposed by the counsel appearing on behalf of the plaintiff.

Needless to say, the Bench then points out in para 4 that:
Accordingly, the Local Commissioner has referred the matter to the Court for appropriate directions.

As we see, the Bench then enunciates in para 5 that:
The relevant extracts from the proceedings of 20th May, 2022 are set out below:

The statement of Ms. Neha Dutta, DW-1 was completed on 02.05.2022. On that date she was fully cross examined. However, during the completion of the cross examination, Sh. Kuldeep Kumar, Advocate for the defendant had made a request that he be permitted to re-examine the witness. Since, it was already 4.25 PM, therefore, the question of re-examination was kept open to be taken up today.

Sh. Kumar submits that he would like to re-examine the witness (DW-1) with regard to the questions where the witness has replied ‘YES’ or ‘NO’ only and the explanation for reaching at the truth and for the proper adjudication of the issues in question are necessary to be asked and replied for a fair conclusion.

On the one hand, the Bench then discloses in para 6 that:
Counsel appearing on behalf of the defendant has placed reliance on Section 138 of the Evidence Act, 1872 as well as the judgment of the Supreme Court in Rammi Alias Rameshwar v. State of Madhya Pradesh, 1999 (8) SCC 649.

Adding more to it, the Bench then also lays bare in para 7 that:
Relying on the aforesaid judgment of the Supreme Court, it is contended on behalf of the counsel for the defendant that the defendant is entitled to re-examine DW-1 on account of the answers given by the said witness in the cross-examination. He states that since the witness has replied only in ‘yes’ or ‘no’, he is entitled to re-examine the said witness to get a proper explanation from the witness in respect of the questions posed to her.

As anticipated, the Bench then points out in para 8 that:
On the other hand, the counsel for the plaintiff vehemently opposes the said request. She places reliance on the judgment of this Court in Simrin Singh v. Amrit Srinivasan and Ors., 2018 SCC OnLine Del 7177. She submits that a witness cannot be allowed to be re-examined so as to provide an explanation when the said witness has answered the question in ‘yes’ or ‘no’. She further submits that the witness is an educated person and a law graduate and has consciously chosen to give the answers in the aforesaid manner.

After hearing the counsels for the parties as revealed in para 9, the Bench then remarks in para 10 that:
Before dealing with the judicial precedents cited by the counsels for the parties, it is deemed apposite to refer to the relevant portion of Section 138 of the Indian Evidence Act, which is as under:
138… Direction of re-examination:
The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.

To be sure, the Bench then hastens to add in para 11 that:
Counsel for the plaintiff has correctly placed reliance on the judgment in Simrin Singh (supra). The relevant observations of the Court are set out below:

9. Though Section 138 supra permits re-examination ‘to explain the matters referred to in cross-examination’ and permits further cross-examination of the witness thereafter, only if the Court has in re-examination permitted new matters to be introduced (else, after re-examination, there is no right of further cross-examination) but in my opinion, the words ‘explain matters referred to in cross-examination’ cannot be interpreted so widely as to permit in routine, re-examination of witness and in the name of re- examination, undo what has been achieved/revealed in cross-examination. In my view, reexamination, particularly in civil cases, has to be permitted rarely. I say so because civil proceedings are essentially adversarial, as distinct from adjudication of criminality, which, with the passage of time, is more inquisitorial than adversarial, with the prosecution as well as the Judge being in search of truth, rather than letting a finding on criminality being returned for failure and defaults of the accused.

11. The words ‘explanation of matters referred to in cross-examination’ in Section 138 supra, in my view, have to be interpreted as re-examination confined to explanation of the sense and meaning of the expressions used by the witness in cross-examination, if they be in themselves doubtful and also the motive by which the witness was induced to use those expressions. Re-examination, in my view, cannot go further than that. I reiterate that re-examination cannot be sought and allowed, with the sole object of giving a chance to the witness to undo the effect of statements earlier made in cross-examination. Lacunae in evidence led cannot be filled up under the pretext of re-examination.

It is worth noting that the Bench then clearly states in para 12 that:
This Court in Simrin Singh (supra) has observed that in the garb of ‘explanation of matters referred to in cross-examination,’ a witness cannot be recalled for re-examination in a routine manner. Further, such reexamination cannot be used to fill in the lacunae in the evidence.

Notably, the Bench then also clarifies in para 13 that:
The distinction between a criminal trial and a civil trial has also been noted by this Court in Simrin Singh (supra). In civil cases, re-examination can only be permitted rarely as civil proceedings are adversarial in nature as opposed to criminal cases, which are inquisitorial in nature.

For sake of clarity, the Bench then also opts to note in para 14 that:
The judgment in Rammi (supra) relied upon by the defendant is in the context of a criminal case and therefore, the observations made therein were in that context and would not be applicable in the present case.

Most remarkably, the Bench then makes it amply clear in para 15 that:
In the guise of re-examination, the counsel for the defendant cannot ask the witness to give further explanation to the answers given by her. There is no ambiguity in the answers given by the witness that requires explanation through re-examination. In the present case, the witness, who is a law graduate, has consciously chosen to give her answers in ‘yes’ or ‘no’ without giving any explanation in support thereof.

Most significantly, the Bench then minces no words to state what forms the cornerstone of this notable judgment in para 16 wherein it is held that, Needless to state that any interpretation in respect of the answers given by the witness can be addressed by the counsels at the time of making submissions. Re-examination cannot be used to give a chance to the witness to undo the statement of the witness made in cross-examination and fill in the lacunae in evidence.

On a practical note, the Bench then observes in para 17 that:
Therefore, in the facts and circumstances of the case, this Court is of the view that no case for re-examination is made out.

What’s more, the Bench then specifies in para 18 that:
Counsel for the plaintiff submits that in view of the time and efforts put in by the Local Commissioner, the plaintiff is willing to pay a further fees of Rs.75,000/- to the Local Commissioner.

Going ahead, the Bench then states in para 19 that:
Accordingly, it is directed that the plaintiff shall pay an additional sum of Rs.75,000/- to the Local Commissioner.

Finally, the Bench then concludes by holding in para 20 that:
With the aforesaid observations, the matter may be placed before the Local Commissioner on the dates fixed.

In a nutshell, the Single Judge Bench of the Delhi High Court comprising of Hon’ble Mr Justice Amit Bansal has made it indubitably clear that re-examination can’t be used to give chance to witness to undo the statement that was made in cross examination and thus fill the lacunae in evidence. It certainly merits no reiteration that we have already discussed this extremely commendable judgment exhaustively along with the relevant case laws also as stated herein above. We thus see in this case that the Court very rightly holds that no case for re-examination is made out which is quite discernible also! It is a no-brainer that there can be just no denying or disputing it! Of course, we must concede that all the courts in similar such situations must definitely abide by what the Delhi High Court has laid down so very explicitly, elegantly and eloquently in this leading case!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi (Retd), A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh