PARSUMAL CHETUMAL SANTANI v. SUGNOMAL GODHUMAL SANTANI

CORAM : MR.JUSTICE N.N.MATHUR Date of decision: 16/03/98 ORAL JUDGEMENT (cid:9)Heard Mr M D Pandya, learned Advocate for the petitioner and Mr K D Shah, learned Advocate for respondent No.1.

2.(cid:9)By the impugned order dated 1.10.1993, Civil Judge, (SD), Godhra has permitted the plaintiff's Advocate to cross-examine defendant No.3. The necessary facts are that the plaintiff has filed Special Civil Suit No.10/83 seeking relief of declaration relating to the legality of the Will dated 28.12.1978 executed by defendant No.1 and his brother deceased Godhumal, partner of plaintiff and defendants No.2, 3, 4, 5 and the father-in-law of defendant No.6. Defendant No.3 filed written statement and supported the plaintiff's case. It is categorically stated by defendant No.3 that the relief claimed by the plaintiff are true and they should be granted. He has further stated that the plaintiff's suit be decreed with cost against the defendant concerned. On

1.10.93, examination-in-chief of the defendant No.3 was recorded. The Advocate for the plaintiff wanted to cross-examine him. This was opposed by the Advocate for defendants No.1, and 2 to 7. However, the Trial Judge, by the impugned order, permitted to cross-examine defendant No.3. From the facts of the case, it cannot be said that the interest of the plaintiff and defendant No.3 is adverse. In view of this, the learned Judge has committed material irregularity in exercising jurisdiction in allowing the plaintiff to cross-examine defendant No.3.