Research › Search › Judgment

Madhya Pradesh High Court · body

2024 DIGILAW 552 (MP)

Suresh Kumar v. Jakir Hussain

2024-08-08

HIRDESH

body2024
ORDER 1. This petition has been preferred under Article 227 of the Constitution of India against the order dated 5.1.2023 (annexure P-6) passed in Civil Suit No.14/11 by 3rd Civil Judge, Senior Division, Ratlam whereby the trial Court dismissed the application of the petitioner and respondent Nos.15, 17 and 18 filed under section 151 of CPC for grant of permission for crossexamination of respondent No.14. 2. Brief facts of the case is that respondent No.1 filed a civil suit for declaration, permanent injunction and other reliefs regarding 5 Bigha land of Survey No. 439 and 440, Village-Jaora, Distt. Raltam against the petitioner and other respondents (annexure P-1).The petitioner and respondent No. 15, 17 and 18 has filed joint written statement and denied the suit. The written statement is Annexure P-2. The respondent Nos.7 and 14 also filed a joint written statement i.e. Ex.P-3. The respondent No.14 was examined before the trial court and gave statement against the petitioner and respondent Nos.15, 17 and 18, therefore, petitioner filed an application under section 151 of CPC for grant of permission cross-examination of respondent No.14. 3. Respondent No.1 filed a reply and after hearing the learned counsel for both the parties, trial court vide order dated 5.1.2023 dismissed the aforesaid application on the ground that the written statement filed by the petitioner and respondent Nos.15, 17 and 18 are not contrary to the written statement filed by respondent No.14. 4. Being aggrieved by the impugned order, petitioner filed this petition stating that trial court has committed error in holding that there is no conflict of interest between petitioner and respondent No.14 while respondent No.14 has given evidence against petitioner and respondent Nos.15, 17 and 18 in chief in para 7 in regard to the possession. Hence, it is prayed that the impugned order be set aside and trial court be directed for grant of permission for cross-examination in context of para 7 of the evidence of respondent No.14. 5. Learned counsel for the respondent supported the impugned order and relied upon the judgement delivered in the cases of Annapurna Devi v. Administrator General, U.P. and others, 2009 SCC OnLine AII 619 and Bijuli Chakraborty and Ors. v. Bhubeneswari Baishya and others, 2018 (5) Gauhati Law Reports, 77. 6. Heard the learned counsel for the parties and perused the documents adduced by the petitioner. 7. v. Bhubeneswari Baishya and others, 2018 (5) Gauhati Law Reports, 77. 6. Heard the learned counsel for the parties and perused the documents adduced by the petitioner. 7. Perusal of the record reveals that respondent No.14 - Moinuddin in the examination-in-chief has stated that plaintiff is in possession of One Beegha of land situated near the Naalaa, which was against the interest of the petitioner and respondent Nos.15, 17 and 18. So this statement is in conflict of interest between the statement of respondent No.14 and petitioner. So, in the considered opinion of this Court, an opportunity to cross examination should be given so that ultimately truth emerges on the basis of which the court may reach to the decision. 8. In order to appreciate the controversy, it is necessary to to re-produce the relevant provisions, which reads as under:- Order XVIII rule 17 of Code of Civil Procedure 1908 "Court may recall and examine witness" “The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit.” Section 137 of Evidence Act "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. Reexamination- The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination. Section 138 of Evidence Act "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 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. 9. In 2003 AIR (kar) 293 Ennen Castings Pvt. Limited (In Liquidation): Y.R. Nagabhushan v. M.M. Sunderaseh Ennen Castings Pvt. Limited (In Liquidation) the Single Bench of Karnataka High Court has held : “8. 9. In 2003 AIR (kar) 293 Ennen Castings Pvt. Limited (In Liquidation): Y.R. Nagabhushan v. M.M. Sunderaseh Ennen Castings Pvt. Limited (In Liquidation) the Single Bench of Karnataka High Court has held : “8. 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 favourable 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 ever 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 9. As a general rule, evidence is not legally admissible against a party, who at the time it was given had no opportunity to crossexamine the witness or of rebutting their testimony by other evidence. When two or more persons are tried on the same indictment and are separately defended any witness called by one of them may be crossexamined on behalf of the others, if he gives any testimony to incriminate them. A defendant may cross-examine his co-defendant who gives evidence or any of his co-defendant's witnesses, if his codefendant'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 crossexamine a co-defendant/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 the witness is cross examined that evidence becomes admissible. It is only after such an opportunity is given, and the witness is cross examined that evidence becomes admissible. In this regard it is useful to refer to passages in the law of evidence, by the learned authors on the subject.” 10. Further, in the case of 2018 (4) MPLJ 74 Shiv Pratap singh Tomar v. Seema Tomar and others, this Court has held :- “8. Though there is no specific provision in the Indian Evidence Act providing for such an opportunity for a defendant-respondent to crossexamine a co-defendant/ 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 the witness is cross-examined that evidence becomes admissible. In this regard it is useful to refer to passage in the law of evidence, by the examination. learned authors on the subject. In this regard it is useful to refer to passage in the law of evidence, by the learned authors on the subject. Sarkar on Evidence, eight edition p.1141: 11. So, in view of the aforesaid legal position, it is clear 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 crossexamine witness called by one whose case was adverse to his, or who has given evidence against him in the case. 12. On perusal of evidence of respondent No.14 in para 7, it is clear that he has deposed the possession of the plaintiff in One Beegha land which is against the interest of the petitioner so conflict of interest between respondent No.14 and petitioner arises. Hence, opportunity of cross examination of respondent No.14 is required to be given so that ultimate truth may be emerged on the basis of which Court may reach to a decision. 13. In view of the aforesaid, trial court has committed error in not granting opportunity of cross-examination of respondent No.14 by the petitioner. Hence, in the considered opinion of this Court, the impugned order is not correct in the eye of law and the same is set aside. 13. In view of the aforesaid, trial court has committed error in not granting opportunity of cross-examination of respondent No.14 by the petitioner. Hence, in the considered opinion of this Court, the impugned order is not correct in the eye of law and the same is set aside. Trial Court is directed to grant an opportunity of cross-examination of respondent No.14 by the petitioner. 14. With the aforesaid direction, the present miscellaneous petition is disposed of.