Vijaya vs Saraswathi and Others

K. Venkataraman, J.—The present revision is directed against the order of the learned Subordinate Judge, Sankari, dated 09.03.2006

made in O.S. No. 4 of 2005.

The fourth defendant in the said suit in O.S. No. 4 of 2005 is the petitioner herein. The plaintiff is the first respondent and defendants 1 to 3 and

5 to 11 are respondents 2 to 11 in this revision.

The second respondent herein had filed a suit in O.S. No. 7 of 2006 before the Sub Court, Sankari, against the first respondent herein and one

Jayalakshmi for declaration that he is the absolute owner of the first item of the suit property and for permanent injunction restraining them from

interfering or disturbing his peaceful possession and enjoyment of the first item of the suit property and to pass a preliminary decree by directing the

defendants to divide the second item of the suit property and the family debts into six equal shares and allot four such shares of landed property

and family debts to the plaintiff and to direct the defendants to pay the family debts as according to their 2/6th share and for other incidental

relief''s. Likewise, the first respondent and the said Jayalakshmi had filed a suit in O.S. No. 4 of 2005 against the second respondent herein and

other respondents including the petitioner herein, being the fourth defendant in the said suit, for partition and separate possession of the suit

property and for other incidental relief''s. Both the suits have been jointly tried together. The second respondent herein, who is the plaintiff in O.S.

No. 7 of 2006 and who happens to be the first defendant in O.S. No. 4 of 2005. was examined as PW1 A request has been made on behalf of

defendants 2,3 and 4 in O.S. No. 4 of 2005 for cross examination of PW1. The said request has been turned down by the Court below and the

present revision has been filed by the fourth defendant alone in O.S. No. 4 of 2005.

Learned Counsel appearing for the petitioner contended that there is nothing wrong in cross examining PW1 on behalf of the fourth defendant,

the petitioner herein. Mrs. Hema Sampath. learned Senior Counsel appearing for the first respondent/first plaintiff in OS. No. 4 of 2005, opposed

the same on the ground that the fourth defendant, the petitioner herein is not an adverse party and the right for cross examination can be permitted

only at the instance of the adverse party.

I have heard the Learned Counsel appearing for the petitioner as well as learned Senior Counsel appearing to the first respondent.

Admittedly, the petitioner claims right through PWI. PW1 has filed a suit in O.S. No. 7 of 2006 against the first respondent herein and one

Jayalakshmi for the relief''s set out earlier The said Saraswathi and Jayalakshmi have filed a suit in O.S. No. 4 of 2005 for the relief''s set out

earlier. In the written statement, the petitioner herein being the fourth defendant in O.S. No. 4 of 2005, sides the case of P.W. 1, the plaintiff in

O.S. No. 7 of 2006. Nothing adverse has been stated by her in her written statement against PWI. If it is so, the question of cross examination of

PWI at the instance of the fourth defendant, the petitioner herein does not arise in any manner. This view has been taken in a decision reported in

Hussens Hasanali v. Sabbirbliai Hasanali, AIR 1981 Gujarat 190 - Hussens Hasanali v. Sabbirbhai Hasanali. Para 7 of the said judgment can be

usefully extracted here under -

In view of the above pronouncements of the Supreme Court, it is obvious that this Court will not be entitled to interfere with the order passed by

the trial Court in exercise of its jurisdiction u/s 115 of the Code unless it is shown that the trial Court has committed a jurisdictional error in passing

the-impugned order. Now, the impugned order passed by the learned trial Judge is, in the circumstances of the case, just and proper because

defendants Nos.4 and 5 not being adverse parties had no right to cross examine the plaintiff. To redress a wrong, in the absence of any provision

to the contrary in Code, the Court had inherent jurisdiction u/s 151 of the code to pass the impugned order. I, therefore, refuse to entertain this

revision application.

Learned Counsel appearing for the petitioner has drawn my attention to the decisions reported in 2003(3) CCC 526 (Kar) : AIR 2003 Kar

293 State of West Bengal Vs. Smt. Rama Devi and Others, Even in these decisions, it has been spelt out that right of examining the witness is

confined only to a party who has brought action and the adversary party.

As pointed out earlier, if there is any conflicting interest between the petitioner herein, who is the fourth defendant in O.S. No. 4 of 2005 and

PW 1, the plaintiff in O.S. No. 7 of 2006, an opportunity should have been given to the petitioner herein to cross examine PWI. But, since it is

demonstrated that their interest is common and that there is no conflicting interest."" the question of permitting the petitioner herein to cross examine

PWI does not arise in any manner.

Sections 137 and 138 of Indian Evidence Act, 1872 read as follows:-

Examination in chief:- The examination of a witness by the party who calls him shall be called his examination in chief.

Cross Examination:- The examination of a witness by the adverse party shall be called his cross examination.

Re-Examination:- The examination of a witness, subsequent to the cross examination by the party who called him, shall be called his re-

examination.

Order of examination:- 138. Witness shall be first examined in chief, then (if the adverse party so desires) cross examined, then (if the party calling

him so desires) reexamined.

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.

Thus, the above provisions make it clear that the right of examining the witness is confined only to a party, who has brought action and the

adversary party. Since it is not the case of the petitioner that PW1''s case is adverse to that of her, the Court below has rightly disallowed the cross

examination on behalf of the petitioner herein. I do not see any illegality or infirmity in the said order.

In the result, the order of the learned Subordinate Judge. Sankari, dated 09.03.2006 made in O.S. No. 4 of 2005 is confirmed and the civil

revision petition stands dismissed. No order as to costs. Consequently, connected petition is closed.