Chhailu Ram vs Chandi Ram and others

B.S. Yadav, J.—In the suit filed by present respondent No. 1 Chandi Ram, Chhailu Ram petitioner (who had been arrayed as defendant No. 1) filed written statement supporting the plaint allegations. The suit was contested by present respondents Nos. 2 to 4 only. After the close of the plaintiffs evidence, the case was adjourned for defendents'' evidence. On two such dates the petitioner did not produce evidence and opportunity was granted to him on payment of costs. On the third date when defendant No. 1 wanted to produce his evidence an objection was raised on behalf of defendant Nos. 2 to 4 to the effect that as the said defendant had admitted the case of the plaintiff, he was not entitled to lead evidence. The learned trial Court vide impugned order sustained that objection. Defendant No. 1 has come to this Court in revision.

I am of the opinion that the petition is liable to be accepted. The case is fully covered by the observation made by this Court in Subhash Chander v. Shanti Swaroop (1983) 85 P.L.R. 359, wherein it was remarked :--

Thus the short question that needs determination in the first petition is as to whether under the Code of Civil Procedure, a defendant who supports the case of a plaintiff can be allowed to lead evidence in respect of the case of the latter. The matter is not res integra as this precise question came for consideration of this Court in an earlier case reported as Giani Zail Singh v. Election Tribunal II, Chandigarh. AIR 1964 P&H. 105, A. N. Grover, J. as his Lordship then was, considering the provisions of Order 18 Rule 2 of the Code, in the light of some earlier procedents, held that the defendant supporting the cause of a plaintiff is not debarred from leading evidence by any express or implied provision in the Code. I, apparently neither have any reason to differ from this conclusion nor has any been pointed out to me. Order 18, Rule 2 lays down the order in which the parties have a right to state their case and produce their evidence. To my mind this right to give evidence is guaranteed to both the sides i. e. the plaintiff and the defendant even to a defendant who suppoits the case of plaintiff no matter whether the party upon whom the burden of proof is placed does or does not produce any evidence. Such a denial of right to lead evidence to a defendant who has common interest with the plaintiff would also be against the principles of natural justice.

The above observation clearly apply to the present case.

The learned counsel for the respondents placed reliance upon Hussens Hasanall Pulavwala Vs. Sabbirbhai Hasanali Pulavwala and Others, , The facts of that case are entirely different. In that case the plaintiff was first cross-examined by the defendant who were contesting dis claim. After the close of the cross examination, the defendants who were supporting the plaintiff, were not entitled to cross- examine the latter, the Court directed deletion of that portion of the cross-examination of the plaintiff which was made by those defendants. In the exercise of its inherent powers against that order, revision was filed but the same was dismissed and it was held that the defendants who were supporting the plaintiff, could not be said to be adverse party and, therefore, had no right to cross-examine him. In that case sections 137, 138, 143 and 155 of the Evidence Act were interpreted. It would not be out of place to mention here that even in that case it was not held that a defendant who supports the plaintiff, is not entitled to cross-ex-amine the plaintiff''s witnesses at all. It was remarked :--

Defendants Nos. 4 and 5 had no right to cross-examine the plaintiff since they were not adverse parties. It was open to the learned Advocate for defendants Nos. 4 and 5 to seek the permission of the Court before the cross-examination of the plaintiff began to put questions but no such request was made at that stage

The learned counsel for the respondents also placed reliance upon Order 15 Rule 2- of the CPC which reads as follows :--

(1) Where there are more defendants than one, and any one of the defendants is not at issue with the plaintiff On any question of law or of fact, the court may at once pronounce judgment for or against such defendant and the suit shall proceed only against the other defendants.

(2) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and the decree shall bear the date on which the judgment was pronounced.

I am of the opinion that the said provision is not relevant to the present case. The heading of that Order shows that it relates to the disposal of the suit at the first hearing. In the present case the Court did not invoke the above rule.

For the foregoing reasons I accept the present revision petition and set aside the impugned order. The trial Court will give on opportunity to defendant No. 1 to lead his evidence before the contesting defendants lead their evidence. The parties have been directed to appear in that Court on 20th December, 1984. No order as to costs.