ORDER : S. VISHWAJITH SHETTY, J. 1. Defendant No.1 is before this Court in this writ petition filed under Article 227 of the Constitution of India with a prayer to set aside the order dated 17.01.2024 passed on I.A.Nos.61 to 63 in O.S.No.5533 of 2015 by the Court of XLII Additional City Civil & Sessions Judge, Bengaluru City vide Annexure-A. 2. Heard the learned counsel appearing for the parties. 3. Suit in O.S.No.5533 of 2015 is filed before the jurisdictional civil Court, Bengaluru by respondent no.1 herein seeking the relief of separate possession, directing defendant nos.2 to 15 to execute a rectification deed correcting the mistake crept in the registered sale deed dated 09.11.1994 with regard to boundaries of the suit schedule property, to declare that plaintiff is the absolute owner of item No.2 of the plaint schedule property, direct defendant no.1 to deliver possession of the suit property by demolishing illegal construction put up by him on the same and consequently grant decree of permanent injunction restraining defendant no.1 from interfering with peaceful possession and enjoyment of item Nos.1 and 2 of the suit schedule property. The contesting defendants have filed written statement and have opposed the suit claim. The Commissioner of Bengaluru Development Authority ('BDA' for short) is arraigned as defendant no.16 in the suit. Written statement on behalf of defendant no.16 was also filed in the said suit. During the course of trial one B. Sreenivas S/o Basappa, Deputy Director of Town Planning, BDA had examined himself as DW.2. After he was cross-examined on behalf of the plaintiff, I.A.Nos.61 to 63 were filed on behalf of defendant no.1 seeking to reopen the case and to recall DW2 for his further cross-examination. The said applications were heard and rejected by the trial Court vide the order impugned. Aggrieved by the same, defendant no.1 is before this Court. 4. Learned counsel for the petitioner having reiterated the grounds urged in the petition submits that during the course of cross-examination of DW.2 by the plaintiff, he has made certain admissions which are adverse to the interest of defendant no.1. Therefore, it is necessary to permit defendant no.1 to cross-examine DW.2. 4. Learned counsel for the petitioner having reiterated the grounds urged in the petition submits that during the course of cross-examination of DW.2 by the plaintiff, he has made certain admissions which are adverse to the interest of defendant no.1. Therefore, it is necessary to permit defendant no.1 to cross-examine DW.2. He submits that though in the written statement which was filed by Joint Director of BDA, the claim of plaintiff was denied in entirety, DW.2 who is the Deputy Director of Town Planning, BDA has made certain admissions contrary to the stand taken in the written statement. It is under these circumstances, I.A.Nos.61 to 63 were filed on behalf of defendant no.1. He submits that the trial Court has erred in rejecting the said applications. In support of this arguments, he has placed reliance on the following judgments:- 1. SRI MOHAMED ZIAULLA V. MRS. SORGRA BEGUM AND ANR - ILR 1997 KAR 1378 2. P SATISH PAI V. B YESHWANTH SHENOY & ORS - ILR 2010 4022 3. VINOD V. MULJIBHAI S/O MAUJIBHAI PATEL & OTHERS - CIVIL REVISION APPLICATION NO.249 OF 2011 DECIDED ON 25.6.2013 4. SOHANLAL & ORS V. GULAB CHAND - 5. PATNA VENKATA SREERAMULU V DALLI APPALAREDDY - 2022 SUPREME(AP) 717 5. Per contra, learned counsel for the respondent no.1 who has argued in support of the impugned order submits that only if the co-defendant pleads adverse to the interest of another defendant he gets a right to cross-examine co- defendant. In the evidence of DW.2, nothing adverse to the c- defendant is stated during his examination-in-chief. If the co- defendant is now permitted to cross-examine DW.2, it would result in permitting him to water down the admissions elicited by plaintiff in the cross-examination of DW.2. The trial Court was therefore, justified in rejecting I.A.Nos.61 to 63. In support of his arguments he has placed reliance on the following judgments:- 1. SAROJI BALA V. DHANPATI DEVI - 2003 AIR KAR 293 2. SATYAM V. PUTHAPALLIPURAM-CRP NO.219 OF 2016 KER HC 3.CHINNAIAH V. VALLIAMMAL & OTHERS- 2023 SUPREME(MAD) 1812 4. SUJITKUMAR V. INDRABAI IN W.P.NO.104160/2021 DTD.28.10.2021 6. The trial Court was therefore, justified in rejecting I.A.Nos.61 to 63. In support of his arguments he has placed reliance on the following judgments:- 1. SAROJI BALA V. DHANPATI DEVI - 2003 AIR KAR 293 2. SATYAM V. PUTHAPALLIPURAM-CRP NO.219 OF 2016 KER HC 3.CHINNAIAH V. VALLIAMMAL & OTHERS- 2023 SUPREME(MAD) 1812 4. SUJITKUMAR V. INDRABAI IN W.P.NO.104160/2021 DTD.28.10.2021 6. The suit in O.S.No.5533 of 2015 is filed by respondent no.1 herein seeking the relief of separate possession, directing defendant nos.2 to 15 to execute rectification deed correcting mistake crept in registration sale deed dated 09.11.1994 and also seeking decree of declaration and permanent injunction in respect of suit schedule property. No relief is sought in the said suit against defendant no.16 i.e., BDA and it appears that defendant no.16 is only arraigned as a formal party in the suit. However, written statement on behalf of defendant no.16 was filed during the course of trial. After evidence of plaintiff and contesting defendant was completed, B Sreenivasa, Deputy Director of Town Planning, BDA has examined himself as DW.2. He was thereafter cross-examined on behalf of plaintiff. It is the case of defendant no.1 that during the course of cross-examination, DW.2 has made some admissions which are in favour of plaintiff and according to defendant no.1, DW.2 had entered the witness box only to favour the plaintiff and admissions made by him are deliberate. It is under these circumstances, I.A.Nos.61 to 63 were filed on behalf of defendant no.1 seeking to reopen the case and recall DW.2 for further cross-examination. 7. In the case of SRI MOHAMED ZIAULLA (supra) in paragraph Nos.7 and 8 this Court has observed as follows: 7. Section 137 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. 8. Section 137 and 138 of the Evidence Act do not specifically refer to cross examination of co-defendant's witnesses. 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. 8. Section 137 and 138 of the Evidence Act do not specifically refer to cross examination of co-defendant's witnesses. But, the courts have to adopt a golden rule that no evidence shall be received against any co- defendant or co-accused 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 dash of interest or if nothing has been said against the other party, there cannot be any right of cross-examination. 8. The Co-Ordinate Bench of this Court in the case of P SATISH PAI (supra) at paragraph Nos.6 to 8 it has observed as follows: "6. If there is conflict of interest between the two co-defendants or two sets of co-defendants, one co-defendant or one set of co-defendants must have the opportunity of cross-examining the other co-defendant or the other set of co- defendants and vice versa. In the instant case, what cannot be lost sight of is that the Trial Court has already made an observation in the context of allowing the fourth defendant's application for referring the matter to the expert that the defendant Nos. 1 to 3 could be given an opportunity to cross-examine the expert. This raises the possibility of the existence of conflict of interest between the defendant Nos. 1 to 3 and the defendant No.4. Of course, whether there is any collusion between the plaintiffs and the defendant No.4 is something, which can be decided only on the conclusion of the trial. 7. It is profitable to refer to Rajasthan High Court's judgment in the case of SOHANLAL AND OTHERS vs. GULAB CHAND, In the said case, the view that if the witness of a defendant makes any statement which is injurious to the co-defendants, they have a right to cross-examine, is accepted. It would be unjust and unsafe not to allow a co- defendant to cross-examine a witness called by one whose case is adverse to his, or who has given evidence against him. 8. It would be unjust and unsafe not to allow a co- defendant to cross-examine a witness called by one whose case is adverse to his, or who has given evidence against him. 8. It is also beneficial to refer to the decision of Punjab and Haryana High Court in the case of SADHU SINGH vs. SANT NARAYAN SINGH wherein it is held that Section 138 of Evidence Act, 1872 allows the right of cross-examination of a witness to an adverse party. Where the parties arrayed as defendants in a suit have taken contradictory stands of a relevant and material issue, they shall be adversary to each other and are entitled to exercise their right of cross-examination against each other." 9. In the judgments on which reliance has been placed by learned counsel for respondent No.1 it is held that right of cross-examination is only to adverse party. A defendant may cross-examine his co-defendant who gives evidence or any of his witnesses, if his co-defendant's interest is hostile to his own. 10. The Bombay High Court in the case of MRS. MINAL ROHIT SHAH & ANR V. NEW SAGAR DARSHAN COOPERATIVE HOUSING SOCIETY LTD., IN W.P.NO.443 OF 2020 in paragraph No.5 has observed as follows: "5. In Piroja Ghadiali vs. Pestonji Ghadiali 1946 (48) Bom.L.R.36 a suit for divorce was filed by the husband on the ground of adultery by the wife with the co-defendant. After the cross- examination of the Defendant wife by the Plaintiff and re-examination, the co-defendant sought leave to cross-examine the Defendant wife. This Court had observed that: "The Indian Evidence Act gives the right of cross-examination only to the adverse party. In the present case the defendant and the co- defendant have both denied the adultery, and, so far as the written statements put in by them go, their defences are identical. There is nothing in the evidence given by the defendant which can in any way be said to be adverse to the co- defendant. The general rule is that a defendant may cross examine his co-defendant who gives evidence, or any of his co-defendant's witnesses, if his co-defendants interest is hostile to his own: Halsbury 2nd Edn, Vol. XIII, P.75 and also Vol.X, pp. 736-737. The general rule is that a defendant may cross examine his co-defendant who gives evidence, or any of his co-defendant's witnesses, if his co-defendants interest is hostile to his own: Halsbury 2nd Edn, Vol. XIII, P.75 and also Vol.X, pp. 736-737. It is only where the evidence of a co- defendant or a co-respondent is adverse to 'the defendant or the respondent that the defendant or respondent can claim the right to cross- examine. There would be very obvious disadvantages if in this case, where the contentions of the defendant and the co- defendant are identical, he co-defendant were allowed to cross-examine the defendant, who for all practical purposes may be regarded as the request to cross-examine is made after the real adverse party, the plaintiff has finished his cross- examination. The co-defendant, if allowed to cross-examine the defendant, will be able to practically nullify the effect of the plaintiff's cross- examination and to get in additional evidence to fill up any gaps which may have been disclosed by the plaintiff's cross examination, and to do so by putting leading questions which could not have been permissible in examination in chief." 11. The Coordinate Bench of this Court in the case of SUJITHKUMAR (supra) at paragraph No.9 has observed as follows: "9. In the present case, there is no such adversity of interest or any claim or counterclaim between the defendants. The codefendant cannot be permitted to cross-examine another codefendant to get over an admission given by such codefendant during the course of cross- examination. If such a methodology is permitted, the very purpose of cross-examination would be lost and codefendants among themselves can resolve to trickery and strategy to get over the admissions, if any during cross-examination." 12. In the case of PATNA VENKATA SREERAMULU (supra) the order of cross-examination by adverse party was considered and it was held that the party who has an adverse interest to the case of the party in support of whom the witness gives evidence is the adverse party who has the right to examine the witness first. 13. The Bombay High Court in the case of VINOD (supra) it is held that if defendant demonstrates that co- defendant's evidence would adversely affect his interest, cross-examination of such defendant is permissible. 14. In the case of CHINNAIAH (supra) the High Court of Madras in paragraph No.15 has observed as follows: " 15. 13. The Bombay High Court in the case of VINOD (supra) it is held that if defendant demonstrates that co- defendant's evidence would adversely affect his interest, cross-examination of such defendant is permissible. 14. In the case of CHINNAIAH (supra) the High Court of Madras in paragraph No.15 has observed as follows: " 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 crossexamination; 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.” 15. The allegation by the petitioner is that DW2 had entered witness box only to support the plaintiff. It is his specific case that during cross-examination DW2 has made several admission deliberately to help the plaintiff. Petitioner has pointed out from the cross-examination of DW.2 that he has deviated from the written statement and made certain admission which according to the petitioner was favouring the plaintiff. If the evidence on record adversely effects the interest of petitioner, such evidence cannot be held against him without granting an opportunity to cross-examine such witnesses. Petitioner has pointed out from the cross-examination of DW.2 that he has deviated from the written statement and made certain admission which according to the petitioner was favouring the plaintiff. If the evidence on record adversely effects the interest of petitioner, such evidence cannot be held against him without granting an opportunity to cross-examine such witnesses. Since the statute does not provide for cross-examination of co- defendant the Courts depending upon the facts and circumstances of the case and the evidence adduced which is said to be adverse to the party intending to cross-examine the co-defendant, can grant permission to the co-defendant to cross-examine such witness. In the present case, written statement is filed by the Commissioner of BDA and DW.2 is Deputy Director, Town Planning. Though no relief is sought against defendant no.16 i.e., BDA, DW.2 has stepped into the witness box and during his cross-examination by plaintiff has allegedly made certain admissions deviating the stand taken in the written statement filed on behalf of defendant no.16. Under the circumstances, if an opportunity to cross-examine DW.2 is not granted to the petitioner his case is likely to be prejudiced. Though I am in respectful agreement with the pleadings on which reliance has been placed by learned counsel for the respondent no.1, I am of the opinion that there cannot be straight jacket formula to determine the right of a defendant to examine the co-defendant or his witness and the same needs to be determined by the Court depending upon the facts and circumstances of each case. Cross-examination is a tool to elicit the truth and technicalities need to give way to do justice to the parties. Therefore, I am of the opinion that Trial Court was not justified in rejecting the applications. 16. Accordingly, the following :- ORDER (i) Writ petition is allowed. (ii) The impugned order 17.01.2024 passed on I.A.Nos.61 to 63 in O.S.No.5533 of 2015 passed by the Court of XLII Additional City Civil & Sessions Judge, Bengaluru City vide Annexure-A is set aside and consequently the prayer made in the said applications is granted. Pending applications do not survive for consideration and accordingly the same are disposed of.