Vijaya v. Saraswathi

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 15.02.2008CORAMTHE HON'BLE Mr. JUSTICE K.VENKATARAMANC.R.P. (PD) No.696 of 2006 andC.M.P.No.6783 of 2006Vijaya... Petitioner/4th defendant Vs.1.Saraswathi... 1st Respondent/ Plaintiff2.Balasundaram3.Saroja4.Thesigamanikandan5.Iyyakannu6.Selvakumar7.Balasubramaniam8.V.R.Subramaniam Pillai9.B.Vijayaraghavan10.Natesan11.Ponnusamy... Respondents 2 to 11/ Defendants 1 to 3, 5 to 11Civil Revision Petition has been filed under Article227 of the constitution of India, against the order dated09.03.2006 made in OS.No.4 of 2005 on the file of the Sub Court,Sankari.For petitioner : Mr.N.ManokaranFor Respondents : Mrs.Hema Sampath, S.C., for M/s. R. Subramanian for R1 O R D E RThe present revision is directed against the order ofthe learned Subordinate Judge, Sankari, dated 09.03.2006 made inO.S.No.4 of 2005.2. The fourth defendant in the said suit in O.S.No.4of 2005 is the petitioner herein. The plaintiff is the firstrespondent and defendants 1 to 3 and 5 to 11 are respondents 2 to11 in this revision. https://hcservices.ecourts.gov.in/hcservices/

3. The second respondent herein had filed a suit inO.S.No.7 of 2006 before the Sub Court, Sankari, against the firstrespondent herein and one Jayalakshmi for declaration that he isthe absolute owner of the first item of the suit property and forpermanent injunction restraining them from interfering ordisturbing his peaceful possession and enjoyment of the firstitem of the suit property and to pass a preliminary decree bydirecting the defendants to divide the second item of the suitproperty and the family debts into six equal shares and allotfour such shares of landed property and family debts to theplaintiff and to direct the defendants to pay the family debts asaccording to their 2/6th share and for other incidental reliefs.Likewise, the first respondent and the said Jayalakshmi had fileda suit in O.S.No.4 of 2005 against the second respondent hereinand other respondents including the petitioner herein, being thefourth defendant in the said suit, for partition and separatepossession of the suit property and for other incidental reliefs.Both the suits have been jointly tried together. The secondrespondent herein, who is the plaintiff in O.S.No.7 of 2006 andwho happens to be the first defendant in O.S.No.4 of 2005, wasexamined as P.W.1. A request has been made on behalf ofdefendants 2, 3 and 4 in O.S.No.4 of 2005 for cross examinationof P.W.1. The said request has been turned down by the Courtbelow and the present revision has been filed by the fourthdefendant alone in O.S.No.4 of 2005.4. Learned counsel appearing for the petitionercontended that there is nothing wrong in cross examining P.W.1 onbehalf of the fourth defendant, the petitioner herein. Mrs.HemaSampath, learned Senior Counsel appearing for the firstrespondent / first plaintiff in O.S.No.4 of 2005, opposed thesame on the ground that the fourth defendant, the petitionerherein is not an adverse party and the right for crossexamination can be permitted only at the instance of the adverseparty.5. I have heard the learned counsel appearing for thepetitioner as well as learned Senior Counsel appearing for thefirst respondent.6. Admittedly, the petitioner claims right throughP.W.1. P.W.1 has filed a suit in O.S.No.7 of 2006 against thefirst respondent herein and one Jayalakshmi for the reliefs setout earlier. The said Saraswathi and Jayalakshmi have filed asuit in O.S.No.4 of 2005 for the reliefs set out earlier. In thewritten statement, the petitioner herein being the fourthdefendant in O.S.No.4 of 2005, sides the case of P.W.1, theplaintiff in O.S.No.7 of 2006. Nothing adverse has been stated by https://hcservices.ecourts.gov.in/hcservices/ her in her written statement against P.W.1. If it is so, thequestion of cross examination of P.W.1 at the instance of thefourth defendant, the petitioner herein does not arise in anymanner. This view has been taken in a decision reported inA.I.R. 1981 GUJARAT 190 – Hussens Hasanali vs.SabbirbhaiHasanali. Para 7 of the said judgment can be usefully extractedhere under:-" In view of the above pronouncements of theSupreme Court, it is obvious that this Court will notbe entitled to interfere with the order passed by thetrial Court in exercise of its jurisdiction underSection 115 of the Code unless it is shown that thetrial Court has committed a jurisdictional error inpassing the impugned order. Now, the impugned orderpassed by the learned trial Judge is, in thecircumstances of the case, just and proper becausedefendants Nos.4 and 5 not being adverse parties had noright to cross examine the plaintiff. To redress awrong, in the absence of any provision to the contraryin Code, the Court had inherent jurisdiction underSection 151 of the code to pass the impugned order. I,therefore, refuse to entertain this revisionapplication."7. Learned counsel appearing for the petitioner hasdrawn my attention to the decisions reported in A.I.R. 2003KARNATAKA 293 – M/s.Ennen Castings (P) Ltd., vs. M.M.Sundareshand A.I.R. 2002 CALCUTTA 235 – State of West Bengal v. Rama Devi.Even in these decisions, it has been spelt out that right ofexamining the witness is confined only to a party who has broughtaction and the adversary party.8. As pointed out earlier, if there is any conflictingnterest between the petitioner herein, who is the fourthdefendant in O.S.No.4 of 2005 and P.W.1, the plaintiff inO.S.No.7 of 2006, an opportunity should have been given to thepetitioner herein to cross examine P.W.1. But, since it isdemonstrated that their interest is common and that there is noconflicting interest, the question of permitting the petitionerherein to cross examine P.W.1 does not arise in any manner.9. Sections 137 and 138 of Indian Evidence Act, 1872read as follows:-" 137. Examination in chief:- The examination ofa witness by the party who calls him shall be calledhis examination in chief. https://hcservices.ecourts.gov.in/hcservices/ Cross Examination:- The examination of a witnessby the adverse party shall be called his crossexamination.Re-Examination:- The examination of a witness,subsequent to the cross examination by the party whocalled 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) re-examined.The examination and cross examination must relateto relevant facts, but the cross examination need notbe confined to the facts to which the witness testifiedon his examination in chief."Thus, the above provisions make it clear that the right ofexamining the witness is confined only to a party, who hasbrought action and the adversary party. Since it is not the caseof the petitioner that P.W.1's case is adverse to that of her,the Court below has rightly disallowed the cross examination onbehalf of the petitioner herein. I do not see any illegality orinfirmity in the said order.10. In the result, the order of the learnedSubordinate Judge, Sankari, dated 09.03.2006 made in O.S.No.4 of2005 is confirmed and the civil revision petition standsdismissed. No order as to costs. Consequently, connectedpetition is closed.sbi Sd/Asst.Registrar/true copy/Sub Asst.RegistrarToThe Subordinate Judge,Sankari.+ 1 cc to Mr. N. Manokaran, advocate SR No. 8082VSV(CO)SR/27.2.2008 order in CRP (PD) No.696 of 2006