M/s. Hanuman Lawande and Associates vs Mr. Datta Gajanan Gaundolcar and Others

R.P. Sondurbaldota, J.—Rule. Rule is made returnable forthwith in view of the order dated 5th August,2011 notifying the parties that the petition will be disposed off finally at the admission stage.

Heard the counsel.

The Petitioners are the Plaintiffs in Special Civil Suit No. 103/2001 instituted for specific performance of agreement of sale and a permanent injunction. The Respondents are the Defendants in the suit. It is the case of the Petitioners that the Respondents entered into an oral agreement for sale of the suit property to the Petitioners for a total consideration of Rs. 24,59,000/- and a part of the consideration being Rs. 7,59,000/- has been paid to them. All the Respondents dispute the claim of the oral agreement of sale. They also deny that the Petitioners have paid any amount by way of part consideration to any of the Respondents. Respondents Nos. 3 and 4 who are the original Defendants Nos. 3 and 4 have taken up an additional defence that they have a right of pre-emption or first preference to purchase the suit property. There are however separate written statements filed. Respondents Nos. 1,2,6,7 and 8 have filed a common written statement. Respondent Nos. 3 and 4 have also filed common written statement. Respondent Nos. 5 and 9 have filed their individual written statements.

After the parties went into trial, the evidence on behalf of the Petitioners as Plaintiffs was completed and Respondent No. 1 filed his affidavit of examination-in-chief. The Petitioners commenced the cross-examination of Respondent No. 1. But after asking a few questions filed the application at Exhibit "D-118" seeking a declaration that none of the other Defendants are entitled to cross examine DW.1. In the alternative the Petitioners sought a direction to the other Defendants to complete their cross-examination before the cross-examination by the Petitioners. This came to be dismissed by the trial court by the order impugned in the present petition.

Shri Lotlikar, the learned Senior Counsel for the Petitioners makes a statement that the Petitioners do not desire to press the prayer of declaration made in the application. They are restricting the relief to the alternate direction sought. Therefore the only issue to be considered in the petition is of the sequence of cross examination of DW.1 i.e whether DW.1 should be cross-examined by the Petitioners first or by the other Respondents. Mr. Lotlikar submits that since there are four written statements filed by different sets of Respondents and since they have some disputes interse, though they are one while opposing the Petitioners the interests of justice require that DW.1 is first cross-examined by the other Respondents before the cross-examination by the Petitioners. Otherwise grave prejudice will be caused to the Petitioners. The Respondents who are joint in defence with the Petitioners will have an edge over the Petitioners in filling any lacunas in the evidence.

Mr. Diniz, the Learned Counsel for Respondent Nos. 3 and 4 in fairness, does not dispute the legal proposition that in case of several Defendants filing written statements separately cross-examination of the Defendants witnesses must be first completed by the other Defendants. He however opposes the petition on the ground that the cross-examination of DW.1 having already commenced, the Petitioners cannot be allowed to put the clock back. Mr. Diniz relies upon the decision of the learned Single Judge of this Court in the case of Sunil Chhatrapal Kedar v. Y.S. Bagde and Anr. reported in 2004 C.C.I. 557. The reliance upon this decision is wholly misplaced since the question falling for consideration therein relates to the order in which the several Defendants should cross-examine the Plaintiff and his witness.

Perusal of the cross -examination of DW.1 by the Petitioners shows that the same was at the preliminary stage. None of the contentious issues have been touched so far. In the circumstances, there can be no prejudice whatsoever caused to the Respondents if the cross-examination of DW.1 by the Respondents is conducted before the cross-examination by the Petitioners. The petition is therefore disposed of in following terms. Respondent Nos. 2 to 8 will first cross examine DW.1 and after completion of cross-examination by all the Defendants, the Petitioners shall cross-examine DW.1. This sequence of cross-examination will be maintained for all the witnesses to be examined on behalf of the Respondents. The Petitioners will continue cross- examination of DW.1 from where it was stopped on 22nd March, 2011.