1. This is a revision petition against an order passed by the Additional Sub-Judge, Muzaffarab4O on 5-5-1969.
2. Mst. Rabia Bibi widow of Haji Akbar Joo and her children brought a suit for partition of property and rendition of accounts against her step-children who are step-brothers of other plaintiffs. The defendants pleaded a prior partition. Issues were framed and the parties ordered to produce evidence. The statement of D. W. Kh. Abdul Hamid son of Kh. Usman Joo was recorded on 5-5-1969.
3. He appears to have been produced to identify the signature of his father on the alleged partition deed Exh. D. A. Only this much was put to him in the examination-in-chief. In cross-examination he stated that Abdul Ahad defendant took into his possession the entire property of Akbar Joo on his demise. This statement was con--sidered hostile by the defendants as it repudiated their whole case. So the learned counsel for the defendants immediately requested the Court to declare the witness hostile and permit his cross-examination. This request was refused and it is against this order that the defendants have come in revision.
4. Two preliminary objections were raised by the learned counsel for the non-applicants which are (1) that the order under revision is not covered by the words case decided; and (2) even if the order be treated as revisable, the witness could not be declared hostile because it could not be said that "he was not desirous of telling the truth" or for that matter, was not in fact speaking the truth.
5. The words case decided have so often come for interpreta--petition before various High Courts that the position instead of emerging clear, has got somewhat confused. In AIR 1943 Lah. 65, a case decided by 7 Judges, it was held that the words case decided' should receive the widest possible interpretation. Consequently the order of the Sub-Judge staying the suit on receipt of a Robkar from the debt Conciliation Board, Multan was treated as a case decided and therefore revisable. It was held: --- "The word case in section 115 does not always mean the whole suit. It is of a very wide import, and means any state of facts juridical considered. This meaning is wide enough to include a decision on any substantial question in controversy between the parties affecting their rights, even though such order is passed in the course of the trial of the suit. An interlocutory order deciding a question of this kind as disting--uished from purely formal and incidental orders, is a `case decided' within the meaning of section 115, but it will be open to revision only if the other conditions expressly laid down in section 115 are satisfied."
6. PLD 1965 Lah. 686 an order requiring plaintiff to pay additional court-fee was held revisable. The practice obtaining in our High Court is to give a liberal interpretation to section 115. In dozens of cases revision was entertained against orders closing evidence or involving onus of proof.
7. It is thus clear that the words case decided must receive a liberal interpretation. In the present case the failure of the Court to allow cross-examination of the witness may have far reaching consequences in that it may ultimately (I) be treated as practically an admission by the defendants that the entire property of Haji Akbar Joo went into their possession after his death and
(2) it may be difficult for the Courts to rely upon this admission on account of the trial Court's refusal to allow the defendants an opportunity of putting him questions in the nature of cross- examination.
8. It is true that the question can be agitated in appeals but I think prudence and fairplay demand that the question should be finally decided before proceeding further so that the party producing such a witness or confronted with a surprise knows where he stands in the light of such cross- examination. It is not uncommon to come across otherwise good cases which are destroy--ed by winning over a witness. The world of litigation is no longer a world of simple-straight folk, as it used to tar during the good old days. Of course, litigants have every right to win cases. In fact either party must win in any case but without resorting to methods that are not clean.
9. As regards the other conditions required under section 115, this section has been amended in Azad Kashmir and the High Court empowered to revise such orders even for the ends of justice. I, therefore, overrule this objection.
10. The law regarding the cross-examination of a witness by the party calling him is contained in section 154 of the Evidence Act which reads:- "The Court may in its discretion permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party."
11. The word `hostile' does not figure anywhere in the Act. 7 he question as to when may a party be allowed to put questions in the nature of cross-examination to his own witness has to be determined in each case in the light of its particular circumstances. There was a time when permission by the Court to cross-examine a witness by his own party was considered as having so discredited such witness that he was treated as being unworthy of any credit and no reliance was, therefore, placed upon his evidence. One may in this connection refer to A 1 R 1921 Cal. 677 and AIR 1923 Cal. 463. This ultimately was found not to have been either a correct exposition of law or in- keeping with the principles of justice primarily because it was the credibility of the witness in the witness-box which should matter with the Court. The argument that a party can be allowed to cross-examine his witness only if it appeared to the Court that "the witness was not desirous of telling the truth" can easily be traced to these earlier times and has to be considered in that context. Latter interpretation of law has not only simplified the matter but has brought greater reason--ableness and logic to bear upon it. It is now settled law that the witness even after being impeached by the very party producing him, does not, for that matter, become unreliable and that the parties are at liberty to rely upon his statements in support of their respective pleas and the Court is also at liberty to treat his statement on the same level as it treats other witnesses.
12. References may in this connection be made to a Full Bench case reported as AIR 1931 Cal. 401. This was decided by 5 eminent Judges. Rankin, C. J. Held (page 405): --- "I believe there is no English case which has ever held or suggested that permission given by the Judge to the party calling a witness to cross-examine him amounts to a declaration binding upon the Court or the jury that the evidence which he has given or is about to give is unworthy of any credit. Such a doctrine is wholly contrary to fundamental principle that credibility of witness is matter for the opinion of the jury, to the principle that it is to be judged of finally at the end of the case . . . . . ."
13. It was again held by him at page 407: -- "In my opinion the fact that a witness is dealt with under section 154, Evidence Act, even when under that section he is cross-examined to credit, in no way warrants a direction to the jury that they are bound in law to place no reliance on his evidence, or that the party who called and cross- examined him can take no advantage from any part of his evidence. There is moreover no rule of law that if a jury thinks that a witness has been discredited on one point they may not give credit to him on another. The rule of law is that it is for the jury to say."
14. 1n the light of this state of law to hold that a party can be allowed to cross-examine his witness only when it appears to the Court that "he was not desirous of telling the truth", would clearly appear to be rigid and inflexible. It would also amount to pre-judging the credibility of the witnesses at a stage where, the Court ought, in the best tradition of justice, to withhold its opinion. In every case the main question before a Court is to discover the truth from the conflicting pleas of the parties before it. The award of relief or punishment consequently follows. Whenever a party seeks to declare his witness hostile to use the commonly used term, the witness is either deposing to facts or suppressing facts which either support the opponent or conversely which negative the claim of his producer. To expect the Court therefore to determine, even cautiously but nevertheless to determine, as to what the truth is, for unless a Court determines what the truth is, how can it determine that the witness was not desirous of telling truth, would to my humble thinking, amount to an indiscretion unlikely to create confidence in the litigant populace. One cannot do better than to quote Roland, J. Who said in AIR 1933 Pat. 517: --- "The definition that a hostile witness is one who is not desirous of telling the truth is dead and buried and must be forgotten."
15. It was again held in AIR 1931 Cal. 401:- "The ordinary rule that leading questions must not on material points to be put by a party to his own witness has its basis in the circumstance that as the party chooses what witnesses he will call, a witness is very often anxious to assist the party on whose behalf he is called. The rule is to guard against the bias of the witness in favour of the side in support of which his evidence is sought.
16. Where no such bias need be apprehended the rule loses much of its utility."
17. Therefore, it seems that the requirement is not that the witness must be suppressing truth or not desirous of making a truthful statement" but as to whether he has made a statement which may adversely affect the party producing him. I must add that it is not every statement of such a witness adversely affecting the party producing him which would entitle a party to cross-examine him. The substance of the parties respective cases and the effect of such statement thereon have to be considered by the Court before granting or refusing such permission.
18. When a party calls any person as a witness, it is supposed to assume that the witness will support it or in other words would make a statement favourable to it. It was held by Buckland, J. In AIR 1931 Cal. 401: --- "It is assumed that a party will call as witnesses only persons who can prove HIS case and in practice, as an almost invari--able rule, what such witnesses may be expected to say is known before hand."
19. When a witness makes a statement adversely affecting the party producing him, it assumes great importance and may be treated by the Court as an admission on the part of the party itself.
20. Therefore, if the party who produced him, desires to put him questions in the nature of cross- examination, it does not ask for the moon. If he is to be tied to the admissions made by such a witness and if ultimately as often happens, the fate b of his case is to hang upon his admissions, then in all fairness to him, he should be permitted to put him questions in the nature of cross- examination so that he may get an opportunity of bringing on record any material on the basis of which he may persuade the Court not to rely upon his evidence. This view was taken in some authorities. For instance in AIR 1933 Pat. 517 the same question arose before a Division Bench. Mr. Rowland, J. Who wrote the Division Bench judgment, graphically explained the rule in the following words:- "There is a sense in which every witness may be regarded as hostile to the party against whom he deposes, whose interests his testimony may damage and friendly to the party who calls him and whose case his testimony is expected to support. Let us now examine the position when the opponent taken by surprise by such admissions of his own witness, asks permission to cross- examine him. If he says to the Court: "This is not my case; I do not admit these facts; the witness in so far as he deposes to these facts, is not my witness by whose admission I am bound; rather he is a witness friendly to my adversary.
21. Give me permission to treat him as I have a right to treat my adversary's witnesses, to cross- examine him, to test his veracity, to disprove the statements he has made against me."
22. Can a Court properly refuse such permission? And if leave is granted, what follows ? In Kalagurda Suryanarayana v. Yarlag-adda Naidoo (2) the trial Court in such circumstances had refused leave to cross-examine. Their Lordships expressed "much regret that this course was adopted, Common fairness required that opportunity to test such statements by cross---examination should be given, if the evidence was to be relied on; and that not having been done, the evidence is of no value.
23. These words of the Judicial Committee deserve careful perusal; they fully support two inferences: first that to obtain leave to cross-examine, all that is necessary is that the witnesses testimony should have been adverse to the party calling him; and second that the value of the witness's testimony is to be judged in the light of the results of such cross-examination."
24. I, therefore, accept the revision petition and order that the witness Abdus Samad shall not be declared hostile but the defendant shall be permitted to put him questions in the nature of cross- examination as provided by section 154 of the Evidence Act.
25. S. A. H.