Property - Testimony - Plaintiff had filed suit for partition against D-1 to D-5, for properties left father of Plaintiff by will - Hence, this Petition - Whether, Defendant no.1 or others Defendants could cross examine PW-1, only witness whose examination-in-chief was completed - Held, relying upon judgment in Shah Hiralal Himatlal and Ors. v. M.G. Pathak and Ors., party which supported case of Plaintiff partially or fully could cross examine witness of Plaintiff first - Defendants No. 3 and 4 were supporting case of Plaintiff both partially and fully respectively and therefore they could first cross examine PW-1 first rather than Defendant No. 1 - Petition allowed.
THE HIGH COURT OF DELHI AT NEW DELHI
CS(OS) No.642/1993
Date of Decision : 09.11.2010
Mrs. Sarabjit Singh Vs Mr. Gurinder Singh Sandhu & Ors.
CORAM :
HON’BLE MR. JUSTICE V.K. SHALI
Citation: 2011(121)DRJ102, (2011)ILR 1Delhi624
17 years have gone by and still the Court is faced with the
question as to which of the defendants should cross
examine the PW-1, the only witness whose examination-in-
chief has been completed. In order to appreciate the point
in issue, it is necessary to give brief facts of the case.
2.
A suit for partition came to be filed by the plaintiff against
her brother (D-1), sisters (D-2 to 4) and husband of
defendant No.2 (D-5).
The centre of controversy was the
properties left by one Lt. Col. Gurpuran Singh, father of the
plaintiff and the defendants No.1 to 4. He is stated to have
died at Delhi on 13th April, 1992.
From the list of
properties, Late Lt. Col. Gurpuran Singh seemed to be a
man of means as he even owned a Rolls Royce car. The
claim of the plaintiff was that she has 1/5th share in the
estate of the Late Lt. Col. Gurpuran Singh on the basis of
the Will dated 4th March, 1992 purported to have been
made by him.
3.
The defendant No.3 filed her written statement and had
not specifically denied the execution of the Will dated 4th
March, 1992 purported to have been made by her father.
However, she took the stand that one of the properties,
which was huge agricultural land, was given to her by the
deceased father vide Will dated 29th January, 1982. Thus,
the defendant No.3 had partially supported the case of the
plaintiff except that she wanted the agricultural land be
taken away from the arena of controversy.
4.
The defendant No.4 has also admitted the Will dated 4th
March, 1992 as the basis of partition.
5.
The defendant No.1 has denied the execution of both the
Wills dated 29th January, 1982 in favour of defendant No.3
or the Will dated 4th March, 1992 on the basis of which the
plaintiff laid her claim. It may be pertinent here to mention
that defendant No.1 is the real brother of the plaintiff. The
suit itself was filed in the year 1993 and issues have been
framed on 24th July, 2008.
Affidavit of PW-1, the sole
witness has been tendered in examination and the witness
was to be cross examined by the defendants at which stage
the controversy arose as to who is to cross examine the
said witness first.
6.
The case of the defendant No.1 was that the defendant No.3
and other defendants who are supporting the case of the
plaintiff either fully or partially must be directed to cross
examine the witness first and thereafter the defendant No.1
will cross examine the said witness. Sh. J.K.Seth, learned
senior counsel on behalf of the defendant No.1 had
contended that in case the aforesaid order is not followed, it
would only give an opportunity to the defendants No.2 to 4
to fill up the lacunae which may be brought about by the
cross examination of defendant No.1 and thus would
prejudicially affect the case of the defendant No.1 whose
interest is totally adverse to that of the plaintiff.
The
learned senior counsel in support of his contention has
relied on judgments titled Shah Hiralal Himatlal & Ors.
Vs. M.G. Pathak & Ors. AIR 1964 Gujarat 26, M.
Hymavathi & Anr. Vs. M. Koteswararao & Ors. AIR
2006 AP 395 and Sunil Chhatrapal Kedar Vs. Y.S.
Bagde 2004 MHLJ 4 620.
7.
The aforesaid three authorities which have been cited by
the
learned
senior
counsel
essentially
support
the
contention that the defendant who is supporting the case of
the plaintiff partially or fully must be directed to cross
examine the witness of the plaintiff first in comparison to a
defendant who is contesting the claim of the plaintiff.
8.
Mr. Alag, learned counsel for defendant No.3 has refuted
this contention of the learned senior counsel by contending
that the defendant No.3 is not supporting the case of the
plaintiff either partially or fully which may entail passing of
a direction to defendant No.3 to cross examine the plaintiff
first in comparison to the defendant No.1.
The learned
counsel had drawn the attention of the Court to his written
statement in order to show that one of the properties in
respect of which partition is sought by the plaintiff is an
agricultural land situated in Punjab, while as the defendant
No.3 is contesting the claim of the plaintiff with regard to
this property on the ground that the said property has
already been given by the late father of the parties to the
defendant No.3 and she has also mutated the same in the
Revenue record in her own name.
The learned counsel
contended that by such an averment, having been made by
defendant No.3 in written statement, it could not be said
that defendant No.3 is either admitting the claim of the
plaintiff based on a Will of 1992 either partially or fully and
therefore the order of cross examination must follow the
same order in which they are shown as defendants.
9.
I have heard Mr. S.K. Sharma, the learned counsel for the
plaintiff,
Mr.
J.K.
Seth,
learned
senior
counsel
for
defendant No.1 as well as the learned counsel, Mr. I.S. Alag
on behalf of the defendant No.3. I have also gone through
the record as well as the judgments.
10.
None of the parties has cited any judgment of the Apex
Court on the point which is raised in the instant case, nor
have I been able to lay my hand on any such authority.
Under these circumstances, one has to fall back on the
judgments which have been cited by the learned counsel for
the plaintiff. Out of the three judgments which have been
cited by the learned counsel for defendant No.1, the
judgment in Shah Hiralal Himatlal’s case (supra) is
passed by the learned Single Judge of the Gujarat High
Court way back in 1964 wherein it has been held as under
:
“(4) So far as the defendants go, the question
which of the defendants should begin has
not been dealt with in Order 18, Civil
Procedure Code.
But on general
principle, if any of the defendants
supports the plaintiff in whole or in part,
then he should address the Court and
lead his evidence first before the other
defendants who do not support wholly or
in part the plaintiff‟s case. The order in
which defendants lead evidence becomes
important only when some of them
support the case of the plaintiffs in whole
or in part while the others do not. If all
the defendants completely oppose the
plaintiff‟s case, then the question of order
of
leading
evidence
amongst
the
defendants is immaterial. It is only when
the defendants are divided into two
groups, one group consisting of the
defendants supporting the plaintiff‟s case
in part and the other group consisting of
defendants, who do not support the
plaintiff‟s case in any part that the
question of order of leading evidence
becomes important. In such cases among
defendants the order of leading evidence
should be as follows :
(1) Those defendants who fully support
the case of the plaintiff.
(2) Those defendants who partly support
the case of the plaintiff.
(3) Those defendants who do not support
the case of the plaintiff in any part.”
A perusal of the aforesaid para of the Judgment would
show
that
the
said
judgment
has
categorized
the
defendants into three essential categories – one who fully
support the case of the plaintiff, secondly the defendants
who partially support the case of the plaintiff and thirdly
those who do not support the case of the plaintiff or any
part.
It has been held that they will cross examine the
witnesses in the same order. The said judgment in the case
of Shah Hiralal Himatlal’s case (supra) has been followed
by Andhra Pradesh High Court in Hymavathi’s case
(supra).
In 2004, Sunil Chhatrapal’s case (supra), the
issue was examined by the Bombay High Court again
where the reference was made to the two judgments of
Gujarat and the Andhra Pradesh High Courts and after
discussing both these judgments, the learned Single Judge
of Bombay High Court has also arrived at the same
conclusion that
the
party who is fully
or
partially
supporting the case of the plaintiff must cross examine the
witness of the plaintiff in the first instance as against the
party who is contesting the claim of the plaintiff. Reference
has also been made to Section 137 of the Evidence Act
which lays down that when the witness is examined by way
of examination-in-chief, then he will be cross examined by
the „adverse‟ party. It has been concluded by the Bombay
High Court that a party who is supporting the case of the
plaintiff either fully or partially cannot be said to be an
„adverse‟ party in the same sense in which a party is
contesting the claim of the plaintiff. It has been observed
that in case this order is not followed for the purpose of
cross examination, then any lacunae which is left in the
cross examination by the contesting party will be filled up,
in the cross examination conducted by the defendants, who
are partially or fully supporting the case of the plaintiff.
This will be prejudicial to the interest of the contesting
party and therefore it has supported the view of Gujarat
High Court as well as the Andhra Pradesh High Court.
11.
I have gone through the aforesaid three authorities and I
find myself to be in agreement with the reasoning given by
the Bombay High Court as well as the Gujarat High Court,
so far as the order in which the cross examination of the
plaintiff‟s witnesses is to be conducted.
The reason for
such an order is not far to seek. The Hiralal’s case has
rightly classified the defendants into three categories –
firstly those who are supporting the case of the plaintiff
fully, secondly those who are partially supporting the case
of the plaintiff and thirdly those who are not at all
supporting the case of the plaintiff.
The classification of
the defendants in the aforesaid three categories must
regulate the cross examination of the plaintiff‟s witness. It
may be pertinent here to mention that Section 137 of the
Evidence Act also lays down that when a witness enters
into
a
witness
box,
examination-in-chief,
he
then
will
be
cross
first
subjected
examination
to
and
thereafter re-examination.
12.
The Evidence Act clearly lays down that the scope of cross
examination is much wider as it permits a party to cross-
examine the witness even regarding his character in order
to impeach his credibility.
Leading questions which are
suggestive of answer can also be asked to the witness.
Therefore, in such a contingency where the scope of cross
examination is much wider and gives better leeway to the
defendant, it cannot be permitted by a party who either
fully or partially supports the case of the plaintiff to cross
examine witness after the contesting party has done. If this
is permitted to be done, then it will greatly prejudice the
rights of the parties who are contesting the claim of the
plaintiff.
I therefore find myself in agreement with the
judgment of Hiralal’s case that the party which supports
the case of the plaintiff partially or fully must cross
examine the witness of the plaintiff first.
Accordingly, so
far as the facts of the present case are concerned, the
defendants No.3 and 4 are supporting the case of the
plaintiff both partially and fully respectively and therefore
they must first cross examine the witness of the plaintiff
first rather than the defendant No.1 who is contesting the
claim of the plaintiff. I accordingly allow the contention of
the defendant No.1 directing defendant No.3 and other
defendants to cross examine the plaintiff‟s witness in the
first instance before the defendant No.1 undertakes the
cross examination.
However, expression of any opinion
hereinbefore shall not be deemed to be an expression on
the merits of the case.
CS(OS) No.642/1993
List
the
matter
before
learned
Joint
Registrar
on
01.12.2010 for fixing up dates of trial.
V.K. SHALI, J.
November 09, 2010
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