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Karnataka High Court · body

2008 DIGILAW 779 (KAR)

Ramacandra v. Vithal

2008-12-17

N.KUMAR

body2008
ORDER Kumar, J The petitioners have preferred this writ petition challenging the order permitting defendants 3 to 6 to cross-examine PW-1. 2. The first respondent-Vithal is the plaintiff in O.S. No. 53/2005. He filed the suit against the petitioners and respondents 2 to 5 for a declaration that the decree passed in O.S. No. 550/1975 dated 1.1982 is not binding on him, he is in actual peaceful possession of the property and therefore, he sought for the relief of injunction restraining the petitioners herein from disturbing his possession except in accordance with law. 3. O.S. No. 550/1975 was instituted by Yallubai Monappa Marve for a declaration that she is the owner and to restrain Yamunappa Dundappa Marve from disturbing her lawful possession in respect of the suit schedule property. The said Yamunappa Dundappa Marve filed a suit in O.S. No. 429/1973 against Yallubai and sought an injunction. Both the suits were clubbed together and common trial was conducted. O.S. No. 429/1973 came, to be dismissed. O.S. No. 550/1975 came to be decreed. Yamunappa preferred R.A. No. 17/1982 against the judgment and decree in O.S. No. 550/1975. Appeal came to be dismissed. Yamunappa died. His L.Rs preferred R.S.A. No. 460/1983 against the said judgment and decree. . The appeal came to be dismissed on 17.4.2003. The Special Leave Petition preferred to the Supreme Court came to be rejected. Smt. Yallubai died. Her L.Rs, the petitioners herein filed Execution Petition No. 31/2004. 4. The first respondent in the Suit O.S. No. 53/2005, asserted that he had leased the property in favour of defendants 3 to 6, i.e. respondents 2 to 5 in this Writ Petition. He examined himself as PW1 and he was cross-examined by defendants 1 and 2 who are the petitioners in this Writ Petition. Defendants 3 to 6 in the suit who are respondents 2 to 5 in this Writ Petition wanted to cross-examine PW1. The petitioners opposed the same by filing application-I.A. No. IV contending that since defendants 3 to 6 have conceded the case of the plaintiff and they are colluding with the plaintiff they have no right to cross-examine. The said application was opposed by defendants 3 to 6 by filing counter. The trial Court rejected the application filed by the petitioners and permitted defendants 3 to 6 to cross-examine PW1.Aggrieved by the said order, the petitioners are before this Court. 5. The said application was opposed by defendants 3 to 6 by filing counter. The trial Court rejected the application filed by the petitioners and permitted defendants 3 to 6 to cross-examine PW1.Aggrieved by the said order, the petitioners are before this Court. 5. The trial Court relying on the judgment of the Punjab and Haryana High Court in the case of SADHU SINGH vs SANT NARAIN SINGH SEWADAR AND OTHERS] held that, though the averments in the plaint and written statement do not indicate any conflict of interest between the plaintiff and defendants 3 to 6, on the ground that no hardship would be caused to defendants 1 and 2, if defendants 3 to 6 are permitted to cross-examine PW 1, the application of the petitioners was rejected. 6. I have heard the learned counsel for the parties. 7. Chapter 10 of the Indian Evidence Act, 1872 (for short hereinafter referred to as "the Act") deals with examination of witnesses. Section 135 of the Act deals with, order of production and examination of witnesses. Section 136 of the Act, states the power of the Judge to decide as to admissibility of evidence. Section 137 of the Act, deals with Examination-in-chief, Cross-examination and Re-examination and Section 138 of the Act, deals with the order of examinations. Section 137 defines what a Cross-examination means. According to the said Section, examination of a witness by the adverse party shall be called his cross-examination. Section 138 provides that witness shall be first examined-in-chief, if the adverse party so desires, cross-examine, then if the party calling him so desires re-examine. 8. Therefore, the questions for consideration are:- What is cross-examination? What is the purpose of cross-examination and who has the right of cross-examination? 9. What is cross-examination? Examination of a witness by the adverse party is called the cross-examination. It is the most effective of all the means for extracting truth and exposing false hood. It is a greatest legal engine ever invented for discovery of truth. It is the only mode to test the veracity of the statements given by a witness in examination-in-chief relating to an occurrence, which took place with him or in his presence. It is not an empty formality but a very valuable light, and a weapon in the armory of the adverse party to destroy the case of the opposite party and to substantiate his defence. 10. It is not an empty formality but a very valuable light, and a weapon in the armory of the adverse party to destroy the case of the opposite party and to substantiate his defence. 10. The basic concept is fair play in action. It must depend upon the particular lis, if there be any, between the parties. If the credibility of a person who has testified or given some information is in doubt, or if the version or the statement of the person who has testified is in dispute, right of cross-examination must inevitably form part of fair play in action. Where there is no lis regarding the facts there is no requirement of cross-examination to be fulfilled to justify fair play action. 11. What is the purpose of cross-examination? The object of cross-examination is two fold. Firstly, to weaken, qualify or destroy the case of the opponent. To impeach the accuracy, credibility and general value of the evidence given in chief, to sift the facts already stated by the witness, to detect and expose discrepancies or to elicit suppressed facts which will support the case of cross-examining party. Secondly, to establish the partys own case by means of his opponents witnesses. It may be either by way of admissions or by way of eliciting facts which would prove the case of the cross examining party. It is like a double-edged sword. Properly used it may destroy the opponents case and support the cross examining party. Otherwise it may destroy the case of the cross examining party. It is an art, which requires great skill. It can be acquired only by training and experience. 12. Who has the right to cross-examine? The right of cross-examination is that of the adverse party. It is left to his discretion. He cannot be compelled to cross-examine. If he so desires, he can exercise that right. If a party do not hold the position of an adverse party, he has no right of cross-examination. The condition precedent for giving an opportunity to cross examine a opposite party is that, either from the pleading of the parties or in the evidence, there should exist conflict of interest between the parties. If a party do not hold the position of an adverse party, he has no right of cross-examination. The condition precedent for giving an opportunity to cross examine a opposite party is that, either from the pleading of the parties or in the evidence, there should exist conflict of interest between the parties. It should be shown that the evidence on record adversely affects his interest and that his interest is adverse to the interest of the party who has given evidence and therefore, he is in the position of an adverse party. Once it is demonstrated that the interest is common, there is no conflict of interest, and no evidence is adduced affecting the interest of the defendant, then there is no question of giving an opportunity to such a party to cross-examine the opposite party. The main object of such cross-examination is to demolish the case of the opposite party and if possible to substantiate the defence. If there is no conflict of interest, there is no claim, there is no defence, and there is nothing to be demolished in the case set up, there is no adverse party and the opposite party has no right to cross examine. Only when the opposite party stands in the shoes of an adverse party, he has a right of cross-examination. 13. This Court in the case of ENNEN CASTING PRIVATE LIMITED vs MM SUNDARESH AND OTHERS, dealing with the cross-examination of a co-respondent has held that:- "No evidence should be received against one who had no opportunity of testing it by cross-examination; as it would be unjust and unsafe no to allow a co-accused or co-defendant to cross-examine a witness called by one whose case this adverse to him, or who has given evidence against. If there is no Conflict of interest, such an opportunity need not be given. Therefore, the condition precedent for giving an opportunity to a defendant/respondent to cross-examine a co-respondent or a defendant is either from the pleadings of the parties or in the evidence, there should exist conflict of the interest between them. If there is no Conflict of interest, such an opportunity need not be given. Therefore, the condition precedent for giving an opportunity to a defendant/respondent to cross-examine a co-respondent or a defendant is either from the pleadings of the parties or in the evidence, there should exist conflict of the interest between them. Once it is demonstrated that their interest is not common and there is a conflict of interest and evidence has been adduced, affecting the interest of the co-defendant/co-respondent, then before the Court could act on that evidence, the person against whom the evidence is given should have an opportunity to cross-examine the said witness, so that ultimately truth emerges on the basis of which the Court can act.” 14. In the instant case, the plaintiff is seeking a declaration that the decree passed earlier is not binding on him and that he is in lawful possession of the property and he should not he dispossessed. The averments made in the plaint further makes it clear that it is the defendants 3 to 6 who arc tenants of the plaintiff: are in possession of the property for more than 5 decades. The plaintiff wants to protect his possession and the possession of the defendants 3 to 6. The Cause of action is that there was a threat of dispossession of the plaintiff and his tenants 3 to 6 without due process of law. Neither the plaintiff nor defendants 3 to 6 were parties to the earlier decree and, therefore, in a Suit filed for such dictation, merely because defendants 3 to 6 are arrayed as defendants/opposite parties they would not become adverse parties. There is no conflict of interest between the plaintiff and defendants 3 to 6. On the contrary, the suit is filed to protect the possession of defendant, 3 to 6 along with the plaintiffs possession of the properties. 15. In that view of the matter, defendants 3 to 6 have no right to cross-examine PW-1 as neither in the plaint nor in the evidence of PW-l there is anything which is against their interest. No claim is put forth, against them. They are not defending the suit. 15. In that view of the matter, defendants 3 to 6 have no right to cross-examine PW-1 as neither in the plaint nor in the evidence of PW-l there is anything which is against their interest. No claim is put forth, against them. They are not defending the suit. On the contrary, they accept the case of the plaintiff In the absence of such conflict of interest and when defendants 3 to 6 are sailing with the plaintiff, they have no right to cross-examine, as they are not adverse parties. The right of cross-examination vests only with an adverse party. 16. In that view of the matter, the order passed by the trial court is legal and contrary to law and cannot be sustained. Hence, I pass the following order: (a) Writ Petition is allowed. (b) The impugned order passed by the trial Court is set aside. (c) The application filed by defendants] and 2 in I.A. No .IV is allowed. Defendants 3 and 6 have no right to cross-examine PW-1.