Application for correcting deposition or cross-examination is not acceptable

correcting deposition or cross-examination

Case:  Sharifullah vs Tafazzal Hossain

Reference:  69 DLR (AD) (2017) 61

Facts & Arguments:

In 1983 Md Tafazzal Hossain filed a title suit in a Dhaka Subordinate Court for partition of the suit land registered as Title SuitNo. 284 of 1983. The case was transferred two times, in 1985 & 1992, being registered as Title Suit No. 270 of 1985 & Title Suit No. 41 of 1992 respectively.

Md Tafazzal Hossain got an ex-parte decree in his favor on 2-8-1993. As it went against Md. Sharifullah, he then filed an application (Miscellaneous Case No.27 of 1994) for setting aside the aforesaid decree under Order 9, Rule 13 of the Code of Civil Procedure, 1908 (hereinafter called as the Code). At first, Md Tafazzal Hossain objected to contest but when the court fixed a peremptory hearing[1], he appeared & hearing started. Examination and cross-examination had also been completed by 19-11-1998.

Almost two months later, on 17-1-1999 Md TafazzalHossain applied to the Court for correcting the deposition made by him in his cross-examination. Under sections 151 & 152 of the Code, he wanted the Court to expunge his statement partly. But the trial Court refused to do so by an order on the same date.

Then Md Tafazzal Hossain moved to the High Court Division(HCD) challenging the order of the trial Court by filing civil revision. A learned Sigle Judge Bench ordered in favor of Mr. Tafazzal Hossain and directed the aforesaid trial Court for correction of the deposition &cross-examination and also to conclude the proceeding within 4 (four) months of receiving this HCD judgment. And thereby this reported petition for leave to appeal i.e. Sharifullah vs Tafazzal Hossain was filed by Md. Sharifullahin the Appellate Division (AD).

Judgment:

A Full Bench of the AD consisting of 4 (four) learned Judges heard the learned Advocates of both the parties. The Court tried to find the answer the question- whether a deposition can be corrected after being signed by the respective party.

The Appellate Division had taken some provisions of the Code and the Evidence Act, 1872 (the Act) into their consideration. Order18 of the Code deals with “Hearing of the Suit & Examination of Witness”. Section 137 of the Act contains definitions of“Examination-in-chief, cross-examination & re-examination” and section138 of the same Act describes the “Order of Examinations”.

Going through these provisions of law the AD held that“it appears to us that a witness is not entitled to correct his deposition after putting his signature in the deposit sheet.” The Court further held that“if such a recourse is allowed to be practiced by a witness, then the whole purpose of cross-examination shall be frustrated and in the process the cross-examination shall become a mockery.”

Finally, the AD quashed the decision of the HCD and restored the judgment of the trial Court holding the opinion that “the HCD totally failed to consider the above-mentioned provisions of the laws” and hence “the HCD committed an apparent error in making the Rule”.


[1] Peremptory hearing means when opposite party in a suit wants to delay but the Court fixes a date for hearing. If the Court finds that any party is delaying the proceeding unduly, then it may fix a date for hearing that cannot be changed.

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Tazimul Maruf

Tazimul Maruf

Tazimul Maruf is a 4th year law student at the University of Rajshahi. He is a former student of Bangladesh Madrasah Education Board with a sound academic result having scholarships in class 5 & 8 and GPA 5 in both Dakhil & Alim examinations. Maruf is interested in Legal Research & Writing. He is engaged with some social welfare organizations. He can be reached at tazimulmarufbd@gmail.com.
Tazimul Maruf

Tazimul Maruf

Tazimul Maruf is a 4th year law student at the University of Rajshahi. He is a former student of Bangladesh Madrasah Education Board with a sound academic result having scholarships in class 5 & 8 and GPA 5 in both Dakhil & Alim examinations. Maruf is interested in Legal Research & Writing. He is engaged with some social welfare organizations. He can be reached at tazimulmarufbd@gmail.com.

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