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2020 DIGILAW 707 (TS)

Madhu Babu v. Abburi Bharathi Another

2020-09-30

G.SRI DEVI

body2020
JUDGMENT G Sri Devi, J. - C.R.P.No.171 of 2014 is filed, aggrieved by the order, dated 02.12.2012, passed in I.A.No.516 of 2014 in Memo S.R.No.893 of 2012 in O.S.No.75 of 2004 on the file of the V Additional District Judge (Fast Track Court), Ranga Reddy District at L.B.Nagar, wherein the application filed by the petitioner/plaintiff to review the order, dated 24.08.2012 passed in Memo S.R.No.893 of 2012 was dismissed. 2. C.R.P.No.243 of 2014 is filed, aggrieved by the order, dated 24.08.2012, passed in Memo S.R.No.893 of 2012 in O.S.No.75 of 2004 on the file of the V Additional District Judge (Fast Track Court), Ranga Reddy District at L.B.Nagar. 3. Since the issue involved in both the Civil Revision Petitions filed under Article 227 of the Constitution of India are interconnected, they are being disposed of by this common order. 4. The facts in issue are as under: The petitioner herein filed O.S.No.75 of 2004 for specific performance of agreement of sale, dated 27.11.2003, directing the 1st respondent to receive the balance sale consideration and to execute the registered sale deed and to grant consequential delivery of possession of the suit schedule property to the petitioner by the respondents or in the alternative direct the 1st respondent to refund the advance amount of Rs.75,000/- together with interest at 12% p.a. from the date of payment i.e., 27.11.2003 till the date of realisation and also to award damages of Rs.4,00,000/-. Both the respondents herein filed their written statements in the suit. During the course of hearing of the suit, the learned Counsel for the petitioner raised an objection by filing a Memo, dated 27.02.2012, stating that since the respondent No.2/defendant No.2 has not availed the opportunity of cross-examining the 1st respondent/1st defendant initially and after his cross-examination is completed, the 2nd respondent/2nd defendant shall not be permitted to cross-examine the 1st respondent/ 1st defendant subsequently. It is also stated that both the respondents are sailing in the same boat. It was the contention of the 2nd respondent/ 2nd defendant that he has set up a different case stating that his agreement of sale is earlier to that of the petitioner/plaintiff and as such no prejudice would be caused to the petitioner/ plaintiff, if he crossexamines the 1st respondent/1st defendant after the crossexamination by plaintiff was over. After hearing both sides, the learned trial Judge, rejected the memo, vide order dated 24.08.2012. After hearing both sides, the learned trial Judge, rejected the memo, vide order dated 24.08.2012. Thereafter, the petitioner/plaintiff filed I.A.No.516 of 2013 to review the order, dated 24.08.2012 passed in Memo S.R.No.893 of 2012. By an order, dated 02.12.2012, the learned trial Judge dismissed the said I.A. Challenging the same, both the Civil Revision Petitions have been filed by the petitioner/ plaintiff. 5. Learned counsel for the petitioner mainly contended that after closure of the cross-examination of the 1st defendant/1st respondent by the petitioner, the 2nd respondent shall not be permitted to cross-examine the 1st respondent. He further submitted that both the respondents are sailing in the same boat and that there is absolutely no conflict interest between both the respondents. He also submits that the co-defendant has no right to cross-examine the other defendant. In support of his contention, he relied on the order passed by a learned Single Judge of this Court in C.R.P.No.5488 of 2015. 6. On the other hand, learned Counsel for the 2nd respondent would submit that both the defendants are two separate parties and contesting the matter on different footings as such, respondent No.2 has every right to cross-examine D.W.1 to protect his interest and that there is no apparent error on the face of the record while rejecting the memo, by the trial Court. 7. Now the point that arises for consideration is whether a co-defendant has right to cross-examine the other defendant? 8. It is undisputed fact that no special provision is made in the Evidence Act for cross examination of the co-accused or co-defendant's witnesses. The only relevant provision of law is Section 137 and 138 of the Evidence Act. Section 137 of the Evidence Act refers to examination-in-chief and cross examination of a witness by the adverse party. The examination of an adverse party is the cross examination. The question is who is an adverse party so far as the witness is concerned. The very object of cross-examination is to test the evidence. 9. Section 137 of the Evidence Act specifically explains that the examination of a witness by the adverse party is cross examination. Section 138 of the Evidence Act refers to cross examination if the adverse party so desires after the witness is first examined in chief. The very object of cross-examination is to test the evidence. 9. Section 137 of the Evidence Act specifically explains that the examination of a witness by the adverse party is cross examination. Section 138 of the Evidence Act refers to cross examination if the adverse party so desires after the witness is first examined in chief. These two sections of the Evidence Act make it abundantly clear that a party has a right of cross examining his adversary or his witness. 10. Section 137 and 138 of the Evidence Act do not specifically refer to cross examination of co-defendant's witnesses. If there is no adverse interest or if nothing has been said against the other party, there cannot be any right of cross-examination. 11. In Mohamed Ziaulla v. Sorgra Begum, (1997) AIHC 2628 and in Sohanlal and others v. Gulab Chand, (1966) AIR Raj. 229 both Karnataka High Court and Rajasthan High Court respectively, held that Sections 137 and 138 of the Evidence Act do not specifically refer to the cross-examination of co-defendant's witnesses unless there is a conflict inter se between the defendants. 12. In the present case, a perusal of the material on record would show that on one hand the 1st respondent pleaded that she has not entered into an agreement of sale with the petitioner but on the other hand she stated that the dead line for payment of the balance sale consideration was 11.12.2003 and the petitioner failed to comply with the specific and stipulated conditions. Moreover, during pendency of the Civil Revision Petitions, the 1st respondent executed a registered sale deed in favour of the 2nd respondent vide document No.6527 of 2019, dated 30.05.2019, which apparently seems that there is no conflict of interest between both the respondents. 13. In view of the foregoing discussion and having regard to the facts and circumstances of the case, the impugned orders warrant interference. 14. Accordingly, both the Civil Revision Petitions are allowed setting aside the order dated 24.08.2012 passed in Memo S.R.No.893 of 2012 and order, dated 02.12.2012, passed in I.A.No.516 of 2014 in Memo S.R.No.893 of 2012 in O.S.No.75 of 2004 on the file of the V Additional District Judge (Fast Track Court), Ranga Reddy District at L.B.Nagar and that the objection raised by the petitioner in Memo S.R.No.893 of 2012 is sustained. There shall be no order as to costs. 15. There shall be no order as to costs. 15. As a sequel thereto, Miscellaneous Petitions pending if any, shall stand closed.