Shanto-Mariam University of Creative Technology

Course Name: Evidence Act-II

Course Code: LL.B-4204

Topic: Doctrine of Estoppel, Waiver, Competency and

Compellability Witness, Examination in Chief, Cross-
Examination, Re-Examination and Leading Question.

Submitted To
Riad Hasan
Co-ordinator
Department of Law

Submitted By
Name: Mehedi Hasan
ID: 173461005
Batch: 17th
Semester: 11th

Date of Submission: 17.06.2021

Doctrine of Estoppel:
Estoppel is a legal principle that prevents someone from arguing something or
asserting a right that contradicts what they previously said or agreed to by law. It is
meant to prevent people from being unjustly wronged by the inconsistencies of
another person's words or actions.
KEY TAKEAWAYS:
• Estoppel is a legal principle that protects one party by holding another to their
word or requiring them to adhere to established legal facts.
• A form of estoppel encountered in contract law is promissory estoppel, which
enforces a reasonable promise made by one party if another party acted on
that promise and suffered a loss as a result.
• Estoppel is seen in common law legal systems around the world, including the
U.S., U.K., and Canada.
Section 115 of the Evidence Act, 1872 incorporates the meaning of estoppel as when
one person either by his act or omission, or by declaration, has made another person
believe something to be true and persuaded that person to act upon it, then in no
case can he or his representative deny the truth of that thing later in the suit or in
the proceedings. In simple words, estoppel means one cannot contradict, deny or
declare to be false the previous statement made by him in the Court.

Waiver:
The voluntary surrender of a known right; conduct supporting an inference that a p
articular right has been relinquished.
The term waiver is used in many legal contexts. A waiver is essentially a unilateral a
ct of one person that results in the surrender of a legal right. The legal right may be
constitutional, statutory, or contractual, but the key issue for a court reviewing a c
laim of waiver is whether the person voluntarily gave up the right. If voluntarily sur
rendered, it is considered an express waiver.

1. The relinquishment or refusal to accept of a right.

2. In practice it is required of every one to take advantage of his rights at a
proper time and, neglecting to do so, will be considered as a waiver. If, fo
r example, a defendant who has been misnamed in the writ and declarati
on, pleads over, he cannot afterwards take advantage of the error by ple
ading in abatement, for his plea amounts to a waiver.
 3. In seeking for a remedy the party injured may, in some instances, waive a
part of his right, and sue for another; for example, when the defendant h
as committed a trespass on the property of the plaintiff, by taking it away
, and afterwards he sells it, the injured party may waive the trespass, and
bring an action of assumpsit for the recovery of the money thus received
by the defendant.
4. In contracts, if, after knowledge of a supposed fraud, surprise or mistake,
a party performs the agreement in part, he will be considered as having
waived the objection.

Difference between Estoppel and Waiver are as follows:

Estoppel and waiver are entirely different. Estoppel is not a cause of action. It
may, if established, assist a plaintiff in enforcing a cause of action, by preventing
the defendant from denying the existence of some fact essential to establish the
cause of action. It is a rule of evidence which comes into operation if
(a) a statement of the existence of a fact has been made by the defendant
(or his authorized agent) to the plaintiff or someone on his behalf,
(b) with the intention that the plaintiff should act upon the faith of the
statement, and
(c) the plaintiff does act upon the faith of the statement.
On the other hand, waiver is contractual, and may constitute a cause of action;
it is an agreement to release or not to assert a right. Thus, if an agent with an
authority to make such an agreement on behalf of the principal agrees to waive
his principal’s right, then (subject to any other question such as consideration),
the principal will be bound by the contract, not by estoppel.

Competence of a witness:
As per Section 118 of the Evidence Act, all persons, including a child or an aged
except a tender year, extreme old age, disease-whether of body or mind- or any
other similar cause, are competent to be considered as a witness in the court of law
if they are able to understand the questions put to them, or able to give rational
answers to those questions.
Following persons are competent witness:
i. Persons of tender age (infants)
ii. Persons of extreme old age,
 iii. Persons suffering from diseases of body (deafness, dumbness and
illness) or of mind (idiocy, lunacy), and
iv. Persons intoxicated or drunken who are prevented from understanding
or giving rational answer to questions put to them, are not competent
to testify in a court of law.

Compellability of a witness:
Although the courts have in general the power to compel anybody to depose in
courts in judicial proceeding, there are certain cases when he cannot be
compelled to give evidence. Again, there are certain information and
communications which a person in possession of them is entitled to withhold
from disclosure. Section 121-131 deal with such communications. Section
121,122,124,125,129-131 describe the persons who cannot be compelled to
disclose certain information which are privileged communications.

Privileges of Judges and Magistrates:

Section-121 deals with the privileges of Judge and Magistrates. According to this
section, there are three “matters” relating to which evidence might be required
from a Judge or a Magistrate:
i. Any matter relating to his own conduct in court as such Judge or
Magistrate; illustration (a) exemplifies this matter;
ii. Any matter relating to something which come to his knowledge in court
as such Judge or Magistrate; illustration (b) exemplifies this matter;
iii. Any matter which occurred in his presence while he was so acting (as
such Judge or Magistrate); illustration (c) exemplifies this matter;
As to illustration (a) and (b) above, the Judge or the Magistrate cannot be
compelled to give evidence on such matters as witness except upon the special
order of a superior court; (but though he cannot be so compelled, yet he has the
discretion to waive the privilege and thus may answer questions in these
respects). As to illustration (c) above, he may be asked questions may answer
them like an ordinary witness.

Privilege as to Professional Communication between a lawyer and client

(Sections 126, 127 and 129):
Every person, however guilty he may be, is entitled to a fair trial, is a rule
recognized in every civilized society. Fair trial involves the service of a counsel,
and the counsel cannot properly defend his client unless he knows the whole
truth. It is not against the accused and it can always be shown that the
prosecution evidence is defective and therefore the benefit of doubt should be
given to the accused. That being so, unless the communications between counsel
and client are protected from disclosure, one of the valuable rights of a person,
services of counsel, would be lost.
The confidence reposed by a client in his Advocate is also a trust which, if made
susceptible to discretionary public ventilation by the advocate, the whole
institution of advocacy would turn unreliable and thus unworkable. Clients would
be sceptic to give out all their truths to their lawyers and thereby the lawyers
would find themselves insufficiently equipped at the trial and as a result, proper
dispensation of justice would be an absurd task for the court to accomplish. The
privileges under sections 126 and 129 are therefore necessary and compatible
with that trust between an advocate and his client.

Examination in Chief
Examination in chief is defined under Section 137 of the Evidence Act, when the
party calls a witness in the examination of witnesses that is called examination in
chief. Examination in chief is the first examination of witnesses after the oath. It is
the state in which party called a witness for examining him in chief for the purpose
of eliciting from the witness all the material facts within his knowledge which tend
to prove the party’s case. It is also known as Direct Examination.

Cross Examination
All the witnesses in civil cases which are produced or examined by the court on the
wish of parties must be presented before the court within 15 days from the date on
which issues are framed or within such other period as the court may fix. Then
parties have to file a list of witnesses in the suit. After that court can ask the
witnesses for examination by sending summons or parties may call the witnesses by
themselves. If the court issued a summons for asking the witnesses for the
examination then the expenses which arise due to the calling of witnesses by issuing
summons has to be deposited by the parties. The money deposited by the parties in
this condition is known as “Diet Money”. The date on which the parties wish to
produce and examine the witnesses in the court that is hearing. Now the hearing
will decide the court on the date of hearing. First thing is done by the plaintiff’s
examination in chief in which he asked the question which was seen by the witness.
After that defendant ask cross-questions which were asked by the plaintiff in the
examination in chief. And after the cross-examination is over at this stage the court
will fix a date for final hearing.

Re examination
The party re examine the witness who called the witness may if he likes and if it be
essential. The re examination must be confined to the explanation of matters grow
in cross examination. The proper intention for re examination is by asking questions
as may be proper to pull forward and explanation or meaning of expression used by
the witness in cross examination, if they are questionable. New matters may be
introduced only by the permission of the court, and if that is done, the opposite
party has a right to cross examine the witness on that point.
In re examination of witness examination in chief cannot be added to the very end
by starting totally new facts for the first time. The intention of re examination is only
to get the clarification of some questions created in the cross examination.

Leading questions
Any question which make a proposal to the answer which the person putting it
wishes to receive, is called a leading question.
Scope
Section 141 of Evidence Act defines “leading question”. Section 142 of Evidence Act
lays down that leading questions must not be put in examination in chief and re
examination without the permission of the Court. It also lays down that the court
should permit leading questions in examination in chief or re examination only as to
the matters which are begin, which are unchallenged or which are already been
sufficiently proved in the opinion of the Court. Leading questions may be put in cross
examination under Section 143 of Evidence Act.

Leading questions
A question is leading one when it point to witness the real or obligated fact which
the examiner expects and desires to be confirmed by the answer. The circumstances
in which the question arises determined whether a question is leading or not. Is the
plaintiff your father? Have you not lived for 8 years with him? Is this man 55 years
of age? Is not your name Hemant? Do you reside at Gwalior? Are you not in service
of Hemant? Have you not lived for nine years with Hemant? Are the example of
leading questions. The examiner clearly suggests the answer to these questions. In
such questions the examiner putting the questions is really giving answer rather of
receiving it from the witness. In leading questions while the examiner believe the
lack of knowledge and is asking for information but he really gives the answer
himself rather of receiving it.
Generally, the answers of leading questions are given by yes or no. But it cannot be
said that in order to stamp a question leading the answer to it must be as yes or no.
A leading question is that which signals to the witnesses the real or obligated fact
which the prosecutor expects and desires to have confirmed by the answers leading
to questions.