Research › Search › Judgment

Madras High Court · body

2023 DIGILAW 1927 (MAD)

Chinnaiah v. Valliammal

2023-06-01

L.VICTORIA GOWRI

body2023
JUDGMENT (Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the order passed in memo dated 04.09.2015 filed by the plaintiff / first respondent in O.S.No.172 of 2010 on the file of the I Additional District Judge (PCR), Thanjavur.) This Civil Revision Petition is filed against the order passed in Memo dated 04.09.2015 filed by the plaintiff / first respondent in O.S.No.172 of 2010 on the file of the I Additional District Judge (PCR), Thanjavur. For the sake of convenience, the parties herein are referred to as arrayed in O.S.No. 172 of 2010. 2. The revision petitioner herein is the fourth defendant in the said Memo. The suit in O.S.No.172 of 2010 was one for partition. After the filing of proof affidavit of examination-in-chief by the third defendant, a Memo was filed by the first respondent / petitioner / plaintiff stating that, the ''third defendant'' is the wife of the fourth defendant. Though they have filed separate written statements, they have no conflicting interest adverse to each other. They do not make any claim against each other as well. The written statement filed by both of them are one and the same and in the said circumstances under Section 137 of the Indian Evidence Act, 1872 an ''adverse party'' alone can cross-examine any witness. Admittedly the fourth defendant and the third defendant who are husband and wife are not adverse to each other and hence, the fourth defendant has no right to cross-examine the third defendant. If he is allowed to examine, his examination may nullify the adverse party''s cross-examination. 3. Refuting the same, the revision petitioner filed an objection that, in a suit for partition, there is no plaintiff or defendant, all are plaintiffs and so the plaintiff is not supposed to curtail the stand of others, as each and every party would like to establish their stand. The learned Trial Court on appreciation of both the parties, passed an order in the said Memo. In the order in Memo of O.S.No.172 of 2010, the relevant portion of which is extracted as follows: “In this case, the Counsel for the plaintiff contended that the third defendant and fourth defendant are having similar interest and their interest are not adverse to each other. In the order in Memo of O.S.No.172 of 2010, the relevant portion of which is extracted as follows: “In this case, the Counsel for the plaintiff contended that the third defendant and fourth defendant are having similar interest and their interest are not adverse to each other. On careful perusal of the pleadings of third defendant and the fourth defendant this Court found that the third defendant and fourth defendant are not having any interest adverse to each other. Though the learned Counsel for the fourth defendant contended that the non permitting fourth defendant to cross examine third defendant would tantamount to denial of opportunity in a suit for partition where all are plaintiffs and all are defendants. It is not the case of the fourth defendant that he is also one of the co-sharer. According to him, his wife the third defendant settled her properties in his name. Further it is not the case of the fourth defendant that the third defendant is colluded with plaintiff. Hence, this Court is of the considered view that the fourth defendant has no right to cross-examine the third defendant as the fourth defendant has no adverse interest as against the third defendant. Accordingly, this Court decides that the fourth defendant shall not be permitted to cross-examine third defendant.” As against the said order, this Civil Revision Petition is filed. 4. Heard the arguments of both the learned Counsels for the petitioner as well as the first respondent anxiously and perused the materials available on records. 5. The learned Counsel for the petitioner took me through the various grounds of the Civil Revision Petition and the contents of the documents which he relied. The learned Counsel for the first respondent vehemently contradicting each and every argument of the revision petitioner pressed for dismissal of this Civil Revision Petition. 6. The pertinent question to be decided in the facts and circumstances of this case, is that, whether a party without any adverse interest be permitted to cross-examine the witness? 7. The Advanced Law Lexicon authored by Shri.P.Ramanatha Aiyar defines the term ''adverse party'' as follows: “Adverse party. If a party accepts the plaintiff''s case, there is no contest between the plaintiff and that party and such a defendant cannot be styled as an “adverse party” and would not be entitled to cross examine the plaintiff. 7. The Advanced Law Lexicon authored by Shri.P.Ramanatha Aiyar defines the term ''adverse party'' as follows: “Adverse party. If a party accepts the plaintiff''s case, there is no contest between the plaintiff and that party and such a defendant cannot be styled as an “adverse party” and would not be entitled to cross examine the plaintiff. Such persons cannot be said to be adverse parties merely because they appear to be pro forma defendants in the cause title of the plaint.” 8. Likewise, Black''s Law Dictionary has defined the word ''adverse party'' as follows: “Adverse party.(15c) A party whose interests in a transaction, dispute, or lawsuit are opposed to another party''s interests.” 9. However, if we quickly peruse the various provisions of the Indian Evidence Act, the word ''adverse party'' is found in Sections 137, 138 and 33 of the Indian Evidence Act, 1872. Sections 137 and 138 of the Indian Evidence Act, 1872 are 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 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 to be confined to the facts 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 by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.” 10. However, the word ''adverse party'' is referred in the proviso of Section 33 of the Indian Evidence Act, 1872 from the context of cross-examination of witness in a criminal trial. 11. This case is a suit for partition. The learned Counsel for the respondent submitted that this case being a suit for partition, the parties should be considered as plaintiffs and no party could be considered as party without adverse interest as against each other. Such an argument is not sustainable. 11. This case is a suit for partition. The learned Counsel for the respondent submitted that this case being a suit for partition, the parties should be considered as plaintiffs and no party could be considered as party without adverse interest as against each other. Such an argument is not sustainable. Because the third defendant is a proforma defendant in the cause-title of the plaint, since she is the wife of the fourth defendant, who has claimed to have settled her properties in the name of the fourth defendant. 12. The pleadings of both the third and fourth defendants in their written statement are not contradictory and they sail together. Hence, the first respondent / petitioner / plaintiff had rightly filed a Memo pointing out that, the third defendant being the wife of the fourth defendant, do not have any adverse interest with the other with respect to the subject property of the suit. The fourth defendant should not be permitted to cross-examine the third defendant. As per Section 138 of the Indian Evidence Act, 1872, only an ''adverse party'' can cross-examine the other parties. This is a case where a husband and wife as the third and fourth defendants, sail together to repudiate the claim of the plaintiff in the partition suit, by the strength of the settlement deed executed by the third defendant wife in favour of the fourth defendant husband. 13. This Court in the case of K.Jothi and Others Vs. D.Prema and Others reported in [MANU/TN/1989/2009] dated 11.08.2009 has dealt with a similar issue and the relevant portion of the same is extracted hereunder: “19. Cross examination of a witness is a right given to the opposite party. The law makers have used the word "adverse party" in so far as the question of cross examination is concerned. Therefore the right to cross examine a witness was given only to the party, having adverse interest in the matter. While considering the question as to whether a party was having interest adverse to that of the other, the entire pleadings have to be considered. It is not sufficient if one or two paragraphs from the written statement is taken in isolation. While considering the question as to whether a party was having interest adverse to that of the other, the entire pleadings have to be considered. It is not sufficient if one or two paragraphs from the written statement is taken in isolation. The entire text of the written statement has to be taken into consideration in order to see as to whether the fifth respondent was supporting the case of the first respondent or he was setting up a case adverse to her interest...........” 14. The learned Trial Court has observed in the impugned order that the third defendant settled her properties in favour of the fourth defendant. A keen perusal of the written statement filed by the third defendant on 24.07.2014 is exactly a copy and paste version of the written statement filed by the fourth defendant on 02.04.2012. Hence, it is pretty clear that both the third and fourth defendants sail in the same boat without any adverse interest as against the other. Hence, the learned Trial Court rightly held that the fourth defendant is not entitled to cross-examine the third defendant. The Hon''ble High Court of Andhra Pradesh in Karumanchi Subba Rao Vs. Yarlagadda Venkatappaiah and Others reported in [MANU/AP/0088/1978] dated 21.02.1977 has dealt with a similar issue and the relevant portion of the same is extracted hereunder: “12. A reading of the aforesaid provisions of law indicates that the right to cross-examine the witness is conferred by the statute upon the person concerned only when he has an interest adverse to the one who is proposed to be cross-examined. The very purpose of the cross-examination is to test the veracity of the testimony of the witness. When the plaintiff as well as defendants 3, 4 and 7 as in this case, are sailing together in the sense that defendants 3, 4 and 7 requested the court as matter of fact to decree the suit of the plaintiff as prayed for by him and in view of the further fact that the defendants specifically stated in their written statement that the accounts were maintained properly by the plaintiff, by no stretch of imagination defendants 3, 4 and 7 can be said to have any interest that can be characterised even remotely as adverse to that of the plaintiff. Under these circumstances, I am satisfied that Sri Narasimha Rao is quite correct in his contention that persons in the position of defendants 3, 4 and 7 cannot be said to have any right statutorily to cross-examine the plaintiff...........” 15. The defendant may cross-examine the co-defendant or any other witness, who has given evidence against him and a reply on such evidence though there is no joint issue between them. In this case, the third defendant being the co-defendant of the fourth defendant has not given anything against the fourth defendant in her proof affidavit in examination-in-chief. No doubt when there is no clash of interest between the third and fourth defendants and nothing has been said as against the fourth defendant by the third defendant, there cannot be any statutory right of cross-examination of the third defendant by the fourth defendant. In Sarkar On Evidence, 8th edition page 1141 has elucidated as follows: “No special provision is made in the Evidence Act for the cross-examination of the co-accused''s or co-defendant''s witnesses. But the procedure to be adopted may be regulated by the well-known rule 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 not to allow a co-accused or co-defendant to cross-examine witness called by one whose case was adverse to his, or who has given evidence against him. If there is no clash of interest or if nothing has been said against the other party, there cannot be any right of cross-examination.” 16. The Hon''ble High Court of Calcutta in State of West Bengal and Others Vs. Ramadevi and Others reported in [MANU/WB/0235/2002] dated 24.05.2002 in paragraph No.10 has held as follows: “10. Therefore, upon perusal of the scheme of the Section 137 and 138 it is clear that the right of examining the witness confined only to a party who has brought action and the adversary party. Moreover, the examination of the witness must relate to relevant facts in the issue raised in the suit.” 17. In a similar case, this Court in a judgment reported in [MANU/TN/0246/2008] Vijaya Vs. Saraswathi in paragraph No.9 has held as follows: “9. ................Thus, the above provisions make it clear that the right of examining the witness is confined only to a party, who has brought action and the adversary party. In a similar case, this Court in a judgment reported in [MANU/TN/0246/2008] Vijaya Vs. Saraswathi in paragraph No.9 has held as follows: “9. ................Thus, the above provisions make it clear that the right of examining the witness is confined only to a party, who has brought action and the adversary party. Since it is not the case of the petitioner that P.W.1''s case is adverse to that of her, the Court below has rightly disallowed the cross examination on behalf of the petitioner herein. I do not see any illegality or infirmity in the said order.” 18. As per Section 138 of the Indian Evidence Act, 1872 only an ''adverse party'' can cross-examine the other parties. Being co-defendants admittedly the fourth respondent husband is not an ''adverse party'' to the third defendant wife. Hence, the impugned order passed by the learned I Additional District Judge (PCR), Thanjavur dated 04.09.2015 is in order and I am of the considered view that it is not necessary to interfere with the order passed by the learned I Additional District Judge (PCR), Thanjavur. 19. In fine, this Civil Revision Petition stands dismissed. The learned I Additional District Judge (PCR), Thanjavur is directed to dispose of O.S.No.172 of 2010 as expeditiously as possible within a period of three (3) months from the date of receipt of the copy of this order. There shall be no order as to costs. Consequently, connected Miscellaneous Petition stands closed.