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2018 DIGILAW 193 (RAJ)

Chitwan Kothari v. Mohd. Ibrahim

2018-01-16

PUSHPENDRA SINGH BHATI

body2018
ORDER : Pushpendra Singh Bhati, J. The petitioners have preferred this writ petition for the following relief’s :- "(a) by an appropriate writ, order or direction the order impugned order dated 07.03.2017 (Annex.6) passed by the learned District Judge, Udaipur in Case No. 173/11 may kindly be quashed and set aside and the application under Section 137 & 138 of Indian Evidence Act file by the present petitioners may kindly be allowed in toto. (b) Any other writ, order or direction which is deemed just and proper by the Hon'ble Court in the facts and circumstances of the case may also be passed in favour of the petitioners. (c) Cost of the writ petition may kindly be awarded in favour of the petitioners." 2. The facts as noticed by the Court are that a dispute arose on account of respondent no. 2 entering into an agreement to sell the property in-question to the respondent no. 1 while being the power of attorney holder of respondent no. 3. It is being claimed by the petitioners that they are having registered sale-deed of the property in-question in their favour. The respondent no. 1 is claiming execution of the agreement to sell. The petitioners moved an application under Section 137 & 138 of Indian Evidence Act on 19.1.2017 for cross-examining witness Damodar Lal Joshi, who was examined on 20.12.2016 vide Annex.3. Counsel for the petitioners further stated that through the witness Damodar Lal Joshi was produced by the respondent no. 3 Moda, but since he has deposed adverse to their cause, therefore, the petitioners were having a right to cross-examine him by invoking the powers under Section 137 & 138 of Indian Evidence Act. Section 137 & 138 of Indian Evidence Act reads as follows :- "137. 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. 138. Order of examination - Witnesses 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. Re-examination - The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination. 138. Order of examination - Witnesses 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 relate to the relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. Direction of re-examination - The re-examination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter." 3. Learned counsel for the respondents has opposed the same on the count of the fact that Section 137 & 138 of Indian Evidence Act clearly provide that cross-examination can be permitted only by the party adverse to which evidence is to be brought on record. Learned counsel for the respondent further averred that the petitioners are co-defendants along with respondent no. 3, who purchased it from respondent no. 3 and are in the same shoe in which the respondent no. 3 is contesting the case. 4. After hearing learned counsel for the parties, perusing record of the case including the impugned order, this Court is of the opinion that Section 137 & 138 of Indian Evidence Act clearly provides that cross-examination of witness by the adverse party. "Adverse party" does not mean whether the party is plaintiff or a defendant or hold whatever position it holds in the suit. Adverse party means a party against which deposition has been made by the witness. Apparently, on bare reading of Annex.3, it is clear that the witness, though, being called by respondent no. 3 deposed against the petitioners. Since deposition on 20.12.2016 was adverse to the petitioners, therefore, the petitioners immediately took recourse to Section 137 & 138 of Indian Evidence Act while praying to the learned court below that since the adverse witness has been examined, they need to cross-examine him under Section 137 & 138 of Indian Evidence Act. The learned Court below has rejected the application of petitioners only on the ground that such apprehension has not been recorded by the petitioners at any stage of the suit. 5. The learned Court below has rejected the application of petitioners only on the ground that such apprehension has not been recorded by the petitioners at any stage of the suit. 5. This Court on a bare reading of the application finds that the apprehension of petitioners is correct as they have not only stated in the application that the witness is adverse to them but on perusing Annex.3 apparently the deposition is adverse to the proposition taken by the petitioners and admittedly the petitioners have a right to cross-examine the witness Damodar Lal Joshi, hence, in light of aforesaid observation the writ petition is allowed. The impugned order 07.03.2017 passed by the learned District Judge, Udaipur in Case No. 173/11 is quashed and set aside and the application filed by the petitioners under Section 137 & 138 of Indian Evidence Act is allowed. The learned court below is directed to permit cross-examination of Damodar lal Joshi by the petitioners.