Smt. Taruni Thakur and Others vs Kamendra Singh and Others

N.K. Agarwal, J.—Legality and propriety of order dated 22.04.2010, passed by IVth Civil Judge, Class II, Jagdalpur, in Civil Suit No. 3-A/09 is under assail in the instant petition.

The claim of the Plaintiff was admitted by the Petitioners/Defendants. The Defendant No. 2 denied the claim put-forth by the Plaintiff and thus she is a contesting Defendant. The Petitioners were not allowed by the trial court to cross examine witnesses produced by the Defendant No. 2 vide order impugned. Hence this petition.

Shri Uttam Pandey, learned Counsel appearing for the Petitioners would submit contents of affidavit filed by the Respondent No. 2 are adverse to the interest of the Petitioners, and therefore, it was necessary for the Petitioners to cross examine her and the same has been illegally disallowed by the trial court.

On the other hand, Shri Sourabh Sharma, learned Counsel appearing for the Respondent No. 2 would submit: there is no conflict of interest between the Petitioners and Respondents/Plaintiffs, and therefore, the trial court has rightly disallowed them to cross examine witnesses produced by her.

I have heard the counsel appearing for the parties and perused the order impugned.

Undisputedly, the interest of Petitioners is adverse to the interest of Respondent No. 2. As per Section 138 of the Indian Evidence Act, 1872 (for short the Act ''1872''), witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. The examination and cross examination must relate to relevant facts, but the cross examination need not be confined to the facts to which the witness testified on his examination-in-chief.

The right of cross examination available to opposite party is valuable and independent right. Section 138 of the Act, 1872, allows the right of cross examination of a witness to an adverse party. Where the parties arrayed as Defendants in a suit have taken contradictory stands on a relevant and material issue, they shall be adversary to each other and are entitled to exercise their right of cross examination against each other.

Though there is no specific provision in the Indian Evidence Act providing for such an opportunity for a Defendant-Respondent to cross examine a co-Defendant/co-Respondent, however, having regard to the object and scope of cross examination, it is settled law that when allegations are made against the party to the proceedings, before that evidence could be acted upon, that party should have an ample opportunity to cross examine the person who had given the evidence against him. It is only after such an opportunity is given, and witness is cross examined that evidence becomes admissible.

In view of above, in the considered opinion of this Court, the order impugned dated 22.04.2010 deserves to be and is hereby set aside. The trial court is directed to allow the Petitioners to cross examine the witnesses proposed and produced by the Defendant No. 2.

Accordingly the petition is allowed. No order asto costs.