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2022 DIGILAW 1167 (AP)

Patna Venkata Sreeramulu v. Dalli Appalareddy

2022-10-31

B.S.BHANUMATHI

body2022
ORDER : 1. This revision is filed under Article 227 of the Constitution of India against the order dated 13.10.2020 in O.S. No. 38 of 2012 on the file of the Court of Principal District Judge, Vizianagaram, whereby the Court below directed the plaintiff to cross-examine DW-1/first defendant (D1) at the first instance by adopting the order of examination as referred in Section 138 of the Indian Evidence Act, 1872 (for short ‘the Act’). 2. The aggrieved plaintiffs preferred this revision petition stating that they filed the suit for specific performance of the agreement of sale and D-1 to D-4 filed written statement denying the misrepresentation and fraud played by D-13, who is the second purchaser of the very same property, and denied the suit claim of the plaintiffs supporting the sale deed executed in favour of D-13 and similarly D-13 also denied the claim of the plaintiffs and, therefore, D-13 is not an adverse party to DW-1 within the meaning of Section 138 of the Indian Evidence Act and if at all D-13 is allowed to cross-examine DW-1, it must be prior to cross-examination of DW-1 by the plaintiffs, but the trial Court erroneously directed the plaintiffs to first cross-examine DW-1 failing to observe that DW-1 supports the case of D-13. 3. The learned counsel for the petitioners submitted that it is settled law that a witness/defendant can be cross-examined by co-defendants who oppose the case of that witness and also the plaintiff, but the party who is sailing with the witness must cross-examine the witness of opposite party and, therefore, the party opposing would cross-examine or else the purpose of cross-examination which is purported to elicit the truth would be defeated and in case if the party sailing with the witness is permitted to cross-examine later, there is every chance to fill up the gaps or improve the case left by the witness. 4. On the other hand, the learned counsel for D-13/R-13 contended that the trial Court has rightly appreciated the objection basing on Section 138 of the Act which provides the order of examination and since the plaintiff is opposing the case of the witness, the plaintiffs have to first cross-examine the witness and if at all necessary, D-13 would cross-examine later. 5. 5. Before the trial Court, the decision of the High Court of A.P. in Vemulapalli Rama Krishna Prasad vs. Hanumanula Bapamma and Others, (2007) 1 ALD 470 and decision of High Court of Karnataka in M/s Ennen Castings Private Limited vs. M.M. Sundaresh and Others, ILR 2003 Kar. 3490 were cited. The very same decisions are placed before this Court and relied by the learned counsels for both parties. The other respondents are shown to be not necessary parties. 6. The purpose of cross-examination is stated in the decision rendered by the High Court of Karnataka in M/s Ennen Castings Private Limited (supra) at Para-8 as follows: “The essence of cross-examination is that it is the interrogation by the advocate of one party of a witness called by his adversary with the object either to obtain from such witness admissions favorable to his cause or to discredit him. Cross-Examination is the most effective of all means for extracting truth and exposing falsehood. The object is 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 the cross-examination party. The exercise of his right is justly regarded as one of the most efficacious tests, which the law has devised for the discovery of truth. It is beyond any doubt the greatest legal engine every invented for the discovery of truth. The right of cross-examination belongs to an adverse party and parties who do not hold that position should not be allowed to take part in the cross-examination.” 9. As a general rule, evidence is not legally admissible against a party, who at the time it was given had no opportunity to cross-examine the witness or of rebutting their testimony by other evidence. When a two or more persons are tried on the same indictment and are separately defended any witness called by one of them may be cross-examined on behalf of the others, if he gives any testimony to criminate them. A defendant may cross-examine his co-defendant who gives evidence or any of his codefendant’s witnesses, if his co-defendant’s interest is hostile to his own. 10. A defendant may cross-examine his co-defendant who gives evidence or any of his codefendant’s witnesses, if his co-defendant’s interest is hostile to his own. 10. Though there is no specific provision in the Indian Evidence Act providing for such an opportunity for a defendant-respondent to cross-examine a codefendant/co-respondent, however, having regard to the object and scope of cross-examination, it is settled law that when allegations are made against the party to the proceedings, before that evidence could be acted upon, that party should have an ample opportunity to cross-examine the person who had given the evidence against him. It is only after such an opportunity is given, and witness is cross-examined that evidence becomes admissible.” 7. In that case, the question fell for consideration is whether a co-respondent can cross-examine other respondent, unlike in the present case where the dispute is between the co-defendant of the witness and the plaintiffs as to who should cross-examine at the first instance. However, principles discussed in paragraphs 9 and 10 are useful in guiding the decision to be taken in the present case. 8. In Vemulapalli Rama Krishna Prasad (supra), in a suit for partition, D1 and D3 supported the case of the plaintiff, while D2 alone opposed the suit and while cross-examination of PW-1 by D2 was in progress, D2 filed a petition to expunge that part of evidence of PW-1 which was recorded in cross-examination of PW-1 by D1 done prior to D2, but the petition was dismissed. The question fell for consideration in the revision is whether the portion of the evidence of PW.1 which relates to cross-examination on behalf of first defendant is liable to be deleted. In that context, the High Court upheld the order of the trail Court holding at Para 7 as follows and High Court has referred to the earlier decision stating that such view was expressed in Kada Kondayya vs. Kada Veera Venkata Satya Kumari, 2006 (5) ALD (NOC 91): “In the trial of a suit, any witness examined on behalf of the plaintiffs must be cross-examined by the defendants. If all the defendants are sailing together, common cross-examination on their behalf would suffice. On the other hand, if there is any conflict of interests as between defendants, the cross-examination of the witness examined on behalf of the plaintiffs, must be in the same order, as is reflected in the array of the parties. If all the defendants are sailing together, common cross-examination on their behalf would suffice. On the other hand, if there is any conflict of interests as between defendants, the cross-examination of the witness examined on behalf of the plaintiffs, must be in the same order, as is reflected in the array of the parties. Exception to this is that such of the defendants, who sail with the plaintiffs, must be required to cross-examine the witness first and the defendants, who oppose the claim of the plaintiffs, irrespective of their array in the cause title, must be given an opportunity to cross-examine the witness at the end. The reason is that the actual cross-examination of a witness can take place, only in the hands of a party opposing the claim. If during the course of such cross-examination, an otherwise friendly defendant, who figures lower in the array, is permitted to cross-examine that witness, at the end, there is every likelihood of the purport of the actual cross-examination being neutralized. This Court expressed such a view in Kada Kondayya vs. Kada Veera Venkata Satya Kumari, 2006 (5) ALD (NOC 91).” 9. In the case of Kada Kondayya (supra), this Court observed as follows: “It is not uncommon that out of several defendants in a suit, some of them may fall in line with the plaintiff. In such an event, the actual dispute would be between the plaintiff and his friendly defendant, on the one hand and the other defendants, on the other hand. It is further observed that Sections 137 and 138 of Evidence Act do not restrict, the right of cross-examination of witnesses to other parties alone, as arrayed in the suit and that depending upon the facts, one defendant may have the necessity to cross-examine the witness examined by the other defendant and in exceptional cases, particularly, where collusion is alleged, the actual cross-examination takes place when it is done by the defendant, who actually opposed the claim of the plaintiff, and not by the one who sails with the plaintiff. It is also observed that if the petitioner is able to elicit some information from DW-1, in the cross-examination it is likely to be neutralized, during the course of cross-examination by the plaintiffs, if, in fact, there existed any collusion between DW.1 and the plaintiffs.” 10. It is also observed that if the petitioner is able to elicit some information from DW-1, in the cross-examination it is likely to be neutralized, during the course of cross-examination by the plaintiffs, if, in fact, there existed any collusion between DW.1 and the plaintiffs.” 10. In the present case, D-1 to D-4 and D-13 have similar kind of defence opposing the case of the plaintiffs, whereas, D-5 to D-12 expressed their willingness to execute the sale deed in favour of the plaintiffs. Now, the witness in the box is D-1 who filed written statement denying the plea of the plaintiffs regarding collusion between the defendants and D-13, while confirming the defence of the validity of the sale deed executed by the defendants in favour of D-13. He filed the evidence by way of affidavit in chief-examination, not stating all the case as in the written statement, but stating that he lost his memory and gave evidence as per the available memory. In substance, his case does not go against D-13 and he still stuck to the defence opposing the case of the plaintiffs. 11. Section 138 of the Indian Evidence Act reads as follows: Order of examinations - 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 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 reexamination 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 reexamination, the adverse party may further cross-examine upon that matter. 12. Section 138 of the Act mainly deals with order of examination of a witness and also the matters relating to which they should relate. For the purpose of the present case, the second part is not relevant. The order of examination also deals with who should conduct the examination. Examination of a witness has 3 parts, viz. (i) examination in chief, (ii) cross-examination and (iii) re-examination. They are in the same order who has to conduct chief-examination is silent. Cross-Examination is by the adverse party, if so desires. Reexamination is by the party calling him, if so desires. We are now concerned with cross-examination. Examination of a witness has 3 parts, viz. (i) examination in chief, (ii) cross-examination and (iii) re-examination. They are in the same order who has to conduct chief-examination is silent. Cross-Examination is by the adverse party, if so desires. Reexamination is by the party calling him, if so desires. We are now concerned with cross-examination. A bare reading of the provision indicates who has to cross-examine by reference not to the status of parties, such as plaintiff or defendant, or by saying opposite party. It states only as adverse party. Therefore, it is not only the opposite party, but the co-defendants may have intra-conflicting interest or defences pleaded and sometimes some of the defendants may sail with the case of the plaintiffs, like in the present case. Therefore, the words ‘adverse party’ used in Section 138 of the Act would mean the party whose case/interest is adverse to the case of the party in support of whom the witness gives evidence. If any of the defendants substantially support the case of the plaintiff, yet desires to cross-examine plaintiff’s witness, when there is co-defendant who has pleaded case opposing the case of the plaintiff, the defendant who supports the plaintiff has to cross-examine the witness before the opposing defendant cross-examines the witness. Or else, the very purpose of cross-examination will be defeated. 13. Viewed from this angle, in the present case, DW-1 and D-13 would go together as against the case of the plaintiffs. As such, if plaintiffs are directed to cross-examine DW-1 before D-13, there is likelihood of D-13 eliciting evidence from DW-1 destroying the cross-examination conducted by the plaintiffs or he may elicit evidence in favour of D.W-1 and/or D-13 because the written statement filed by DW-1 is already in his (D-13) favour. Then, the very purpose of cross-examination would be defeated. Without analyzing this possibility, the trial Court, on a curser reading of Section 138 of the Act, was under the misunderstanding that it is only the opposite party, to cross-examine first and directed the plaintiffs to cross-examine DW-1 and, therefore, it has committed error in directing the plaintiffs to first cross-examine DW-1. If at all, D-13 intends to cross-examine D-1/DW-1, D-13 should first cross-examine and later the plaintiffs should cross-examine, but not after the cross-examination by the plaintiffs. If D-13 reports no cross-examination of DW-1, then only the plaintiffs have to cross-examine DW-1. 14. If at all, D-13 intends to cross-examine D-1/DW-1, D-13 should first cross-examine and later the plaintiffs should cross-examine, but not after the cross-examination by the plaintiffs. If D-13 reports no cross-examination of DW-1, then only the plaintiffs have to cross-examine DW-1. 14. Accordingly, the order impugned in the revision petition is liable to be set aside. 15. In the result, the revision petition is allowed and the order dated 13.10.2020 in O.S. No. 38 of 2012 on the file of the Court of Principal District Judge, Vizianagaram is set aside. The trial Court shall follow the order of cross-examination as indicated in this order. There shall be no order as to costs. 16. Miscellaneous Petitions, if any pending, in this appeal, shall stand closed.