Bombay High Court

Gnani Investment And Trading ... vs Smt. Bhanumati Keshrichand ... on 21 April, 2021

Bench: S. K. Shinde

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

             CIVIL APPELLATE JURISDICTION

             WRIT PETITION (ST.) NO. 5747 OF 2021



M/s. Gnani Investment and Trading
Company Private Limited                        .....Petitioner
     V/s.
Smt. Bhanumati Keshrichand Jhaveri
and Ors.                                       ....Respondents


                               ALONGWITH

             WRIT PETITION (ST.) NO. 6142 OF 2021

Daksha Keshrichand Jhaveri & Ors.              .....Petitioners
     V/s.
Smt. Bhanumati Keshrichand Jhaveri
and Ors.                                       ....Respondents



                                       ****

Mr. Y.S. Jahgirdar, Senior Advocate a/w. Mr. Manish Parekh

a/w. Ms. Amita Jasani a/w. Ms. Kia Menon i/by. M/s.

Purnanand & Co., Advocate for the petitioner in WP-5747-

2021.




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Mr. Mayur Khandeparkar a/w. Ms. Dhwani Mehta Desai i/by.

DM Law Chambers for petitioner in WP(ST)-6142-2021.



Mr. Gautam Ankhad a/w. Mr. Sunny Shah, a/w. Mr. Ankur

Shah i/by. Ms. Sushma Singh for respondents no.2 to 4 in both

the matters.



                     CORAM :             SANDEEP K. SHINDE, J.

                     RESD. ON :          5TH APRIL, 2021.

                     PRON. ON :          21ST APRIL, 2021.

ORDER :

1. Heard learned Counsel for the parties. These two

petitions can be disposed off by a common order.

2. Rule. With the consent of the parties, Rule is made

returnable forthwith.

3. Petitioner in Writ Petition (St.) No. 5747 of 2021, a

defendant no.7 in Suit No.42/62 and Petitioners in Writ

Petition No.6142/2021, original plaintiffs, now transposed as

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defendants no.8 to 13, were declined an opportunity of testing

truthfulness, of plaintiff's witness by cross-examination. The

Appellate Bench concurred with the order of the trial Court.

Thus, these petitions under Article 227 of the Constitution of

India.

4. Briefly stated, petitioner's case is; T.E. and R. Suit

No. 42/62 of 2009 was instituted by, in all twelve plaintiffs,

against six defendants seeking inter-alia, eviction of the

defendants from the suit property and other consequential

reliefs. That, during the pendency of this suit, plaintiffs no.2, 7

to 10 and 12 (petitioners in Writ Petition (St.) No. 6142 of

2021) assigned their rights in the suit property vide three deeds

of assignments in favour of M/s. Gnani Investment and Trading

Company Private Limited ("GITCPL" for short). There, is

some dispute between these plaintiffs no.2, 7 to 10 and 12 and

plaintiffs no.4 to 6 as, to whether these plaintiffs have assigned

their entire interest in the suit premises to GITCPL or whether

have assigned only 75% of their interest in the suit property to

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GITCPL. On the basis of three separate deeds of assignments,

GITCPL sought directions to the plaintiff to implead GITCPL

as plaintiff no.13 in the suit alongwith remaining twelve

plaintiffs. The trial Court vide order dated 19th October, 2016

granted GITCPL's application and directed plaintiffs no.4 to 6

to implead GITCPL as co-plaintiffs in the suit. As a result, by a

separate order dated 14th March, 2007 the trial Court ordered

deletion of plaintiffs no.2, 7 to 10 and 12. The order dated 19 th

October, 2016 was challenged by plaintiffs no.4 to 6; whereas

order dated 14th March, 2017 ordering deletion of plaintiffs no.2,

7 to 10 and 12 was challenged by these plaintiffs in Writ

Petition (St.) No. 5917 of 2017. This Court by common

judgment, disposed of both the petitions with the following

order :

"(A) The impugned order dated 19th October, 2016 to the

extent it directs plaintiffs nos.4 to 6 implead GTCPL as

co-plaintiff is set aside. Instead, plaintiff Nos.4 to 6 are

directed to implead GTCPL as defendant No.7 in the

suit.

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(B) The impugned order dated 14th March 2017 made

by the learned trial Judge ordering deletion of plaintiff

nos.2, 7 to 10 and 12 is hereby set aside. Instead, the

plaintiff Nos.4 to 6 are directed to transpose plaintiff

Nos.2, 7 to 10 and 12 as defendant Nos.8 to 13 in the

suit.

(C) Plaintiff Nos.4 to 6 carry out the aforesaid

amendments within a period of two weeks from today.

(D) In case, the plaintiff nos.4 to 6 at any stage desire

to abandon or withdraw the suit, then, they shall give

30 days prior notice to the newly

impleaded/transposed defendant Nos.7 to 13 of their

intentions to do so. Defendant Nos.7 to 13, if they so

choose, may then apply to the trial Judge to transpose

them as plaintiffs in the suit.

apprehend collusion between the plaintiff Nos.4 to 6

and the original defendant Nos.1 to 6, the defendant

Nos.7 to 13 will be at liberty to take out appropriate

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application seeking appropriate orders, including,

their transposition as plaintiffs in the suit. Such,

application if made, will be considered by the trial

Court on its own merits and in accordance with law.

(F) Rule is made absolute in both these petitions to

the aforesaid extent.

(G)There shall be no order as to costs."

5. This Court, while disposing of both the petitions, has

clearly expressed, that in suit for eviction of the tenants, there is

really no scope to adjudicate any inter-se disputes between the

plaintiff's themselves. Therefore, the presence of GITCPL, or

for that matter, plaintiffs no.2, 7 to 10 and 12, who have on

their own say, assigned 75% of their rights in the suit property

in favour of GITCPL, as defendants may really make no

substantial difference or impact. The apprehension of the

petitioners (in both petitions) that, plaintiffs no.4 to 6 may

either abandon the suit or collude with the defendants no.1 to 6,

to the detriment of their interest has been taken care of by

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granting them liberty for appropriate orders including orders for

transposition, if they apprehend collision.

6. The judgment and order dated 20th September, 2017

was challenged before the Hon'ble Apex Court, in Special Leave

Petition. It was disposed of, on 6th February, 2018 in the

following terms;

"After hearing learned counsel for the parties, we are of the opinion that the order of the High Court does not call for any interference. The Special Leave Petitions are dismissed in limine.

However, it is made clear that in case the plaintiffs succeed in the suit the benefit thereof shall ensure to the petitioners as well, who are transposed as performa defendants by the High Court."

7. Thus, in terms of the order dated 20 th September,

2017, original plaintiffs no.2, 7 to 10 and 12 have been

transposed as defendants no.8 to 13 and GITCPL, as defendant

no.7.

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8. It may be stated that the plaintiffs have filed their

affidavit-in-lieu-of evidence on 28th September 2018; that

defendants no.8 to 13 (petitioners in Writ Petition (St.) No.

6142 of 2021) filed their written statement on 14 th March, 2019;

whereas, GITCPL (defendant no.7) filed its written statement

on 18th October, 2018.

9. This suit being under the Rent Act for recovery of

possession, obviously no relief has been claimed/sought against

M/s. GITCPL or defendants no.8 to 13. It is so evident from

the issues framed by the trial Court, which are as under :

"1. Do the Plaintiffs prove that, Defendant's tenancy has

been legally and validly terminated by notice dated

11.02.2009 ?

2. Do the Plaintiffs prove that Defendant No.1 were

plaintiff's monthly tenants in respect of the suit property ?

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3. Does Defendant No.4 prove that their rights in the suit

premises are merged in higher rights under deed of

conveyance dated 10.11.2009 ?

4. Is suit bad for non-joinder of necessary parties ?

5. Whether the suit is maintainable ?

6. Whether Plaintiffs prove that he has derivative title of

the suit premises ?

7. Whether the suit is within limitation ?

8. Whether this Court has jurisdiction to try and entertain

the suit ?

9. Are the plaintiffs entitled to get vacant and peaceful

possession of the suit premises ?

10. Are the plaintiffs entitled to get injunction against

Defendant No.1 to 7 as prayed ?

11. Are the plaintiffs entitled to get mesne profits as

prayed ? If yes, how much ?

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       12. What order and decree ?"

10. In consideration of the facts of the case, it is to be

affirmed that, interest of petitioners in the suit is not adverse to

the interest of plaintiffs. Although, there is a dispute between

the plaintiffs no.4 to 6 on one hand and defendants no.8 to 13

(original plaintiffs no.2, 7 to 10 and 12), on the other hand, as to

whether they have assigned their entire interest in the suit

property to GITCPL or whether they have assigned only 75% of

their interest in the suit premises, there is no scope for

resolution of this inter-se dispute in the suit for eviction filed

under the Rent Act.

11. In the backdrop of these facts, question arising for

my consideration is, whether the trial Court was justified in

declining opportunity to petitioners to cross-examine the

plaintiff's witness.

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12. Heard Mr. Jahgirdar, learned Senior Counsel and

Mr. Mayur Khandeparkar, learned Advocate for the petitioners

and Mr. Ankhad, learned Counsel for the respondents.

13. The petitioners, in support of their contentions that

they have right to cross-examine plaintiff's witnesses, have

relied on the following judgments :

(a) Ida Berta dos Remedios Cunha @ Gomes V/

s. Victor Luis, 2013 SCC Online Bombay 1577.

(b) Kalpana N. Samarth and Anr. V/s. Dr. Seema

A. Mankal decided in Writ Petition No.

7537/2019 (Nagpur).

. In so far as, the case of Ida Berta (supra) is

concerned, therein petitioners, defendants no.5 and 6, were

supporting the case of the plaintiffs, on most of the facts, but

were disputing Deed of Gift and Power of Attorney executed in

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favour of plaintiffs, on the basis of which, half right was asserted

in the suit property. Thus, defendants were permitted to cross-

examine plaintiff's witnesses. However, after cross-examination

was partly recorded, they were further barred from cross-

examining P.W.1. Therefore, in the cited case, interest of

petitioners-defendants was adverse, to interest of the plaintiffs.

So is not the case in hand.

. In next case, issue was "Whether the pleadings alone

could be treated to be the determinative factor for deciding the

sequence of cross-examination". As to facts therein, defendant

no.1 was not entirely supporting the case of the plaintiffs, but

merely admitted the nature of suit property that was let out to

him and the quantum of rent agreed to be paid. Therefore,

ratio in this judgment, has no bearing over the issue in the case

at hand.

14. Mr. Ankhad, learned Counsel for the respondents in

both the petitions relied on :

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(a) Hussens Hasanali Pulavwala Versus. Sabbirbhai

Hasanali Pulavwala and Others, 1981 SCC Online Guj

30.

(b) Thota Suryanarayana and another Versus. Kanumui

Sitarama Bapiraju and Others, 2003 SCC Online AP

960.

. In the case of Hussens Hasanali (supra), the question

for consideration was, "whether the Court should exercise the

revisional jurisdiction on a plea that, there is no provision in law

for deleting the evidence which has already been recorded".

The facts therein were, that defendants no.2 and 3 were allowed

to cross-examine the plaintiff, as if they were adverse parties.

When the attention of the learned Judge was drawn to the fact

that defendants no.4 and 5 had no right to cross-examine the

plaintiff as they were supporting the case set up by the plaintiff

in the plaint, the learned Judge rectified its error by directing

deletion of cross-examination of the plaintiff by the learned

Advocate for defendants no.4 and 5;

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.      Whereas in the case of Thota Suryanarayana (supra),

application under Order 38 Rule 1 Civil Procedure Code and

Section 38 of the Evidence Act was filed with a prayer to

expunge or delete the cross-examination of P.W.1 to 3 by

defendants no.13 and 14 in the suit. The said application was

allowed and the cross-examination of P.W.1 to 3 by defendants

no.13 and 14 had been expunged mainly on the grounds that

these parties cannot be treated as adverse parties and hence,

they have no right to cross-examine these witnesses. This order

was challenged in a revision. Relying on the judgment of

Karumanchi Subbarao Versus. Yarlagadda

Venkatappaiah, reported in AIR 1978 AP 193, the

revision was not entertained. Mr. Ankad, therefore submits,

petitioners, not being adverse party, they have no right to cross-

examine plaintiff's witnesses.

15. Be that as it may, in view of the facts of the case and

for the following reasons, I hold petitioners have no right to test

the veracity of plaintiffs witnesses.

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Reasons :

   (i).               No evidence affecting a party is admissible

against that party, unless the later has had an

opportunity of testing its truthfulness by cross-

examination. It is certainly implied by Section 138 that a

party must have had an opportunity to cross-examine.

As a general rule, evidence is not legally admissible

against a party, who at the time, was given no

opportunity to cross-examine the witness or rebutting

their testimony by other evidence. It is a right of the

litigant in a suit, unless he waives it, to have an

opportunity of cross-examining the witness, whose

testimony is to be used against him.

(ii). Section 137 of the Indian Evidence Act,

provides that cross-examination is examination of a

witness by the adverse party.

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   (iii).          In the case of Dwarka Dass and Ors. V/s.

State and Others, 1979 Criminal Law Journal 550,

it was held thus :

"By virtue of Ss.137 and 138 the examination of a witness will include his examination-in-chief, his cross-

examination by the opposite party if any and his re-examination by the party calling him. The right of cross-examination not only is referable to S.138, Evidence Act itself but one of the principles of natural justice is that the evidence may not be read against a party if the same has not been subjected to cross-examination or atleast an opportunity has not been given for cross-examination. S.138 of the Evidence Act impliedly lays down that the statement of a witness would be read as evidence against a party only if it was tested on the anvil of cross-examination or opportunity was afforded for the purpose. All witnesses are subject to cross-examination. The right of cross-examination could not be curtailed or circumscribed on one pretext or the other or in one way or the other, as shutting up of the statement is intended to be used. It is the right of every litigant unless he gives up up the same to be afforded an opportunity of cross-

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examining the witness whose testimony may be used against him at the trial. On the parity of reasoning therefore, a witness called by the court also is liable to be cross- examined by the parties to the proceedings, if they desire to do so."

16. In the case of K. Subbarao (supra), it has been held

as under :

"Section 137 confers right to cross-examine witness 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 witness. Therefore, when in a suit by the partner against the other partners for declaration that the debt due by the plaintiff to the defendants was partially discharged, the defendants specifically admit in their written statement that the accounts were properly maintained by the plaintiff and request the Court to decree the suit as prayed for the defendants cannot be said to have an interest adverse to that of the plaintiff and therefore they cannot be permitted to cross-examine the plaintiff because they have no statutory right to do so."

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17.         Thus, to be asserted              that, it is the right of the

litigant to cross-examine the witness, whose testimony can be

used against him in the trial or the party against whom the

statement is intended to be used and further cross-examination

is the examination of a witness by an adverse party. In the case

at hand, the interest of the petitioners is not adverse to the

interest of the plaintiffs. It is a suit for eviction of tenants

under the Rent Act. Petitioners are claiming their rights in the

suit property alongwith the plaintiffs. Therefore, inter-se

dispute between the plaintiffs in respect of quantum of their

divided/undivided share in the suit property, cannot be

addressed in the eviction suit under the Rent Act and there is

no scope to adjudicate this inter-se dispute. Strictly speaking,

the petitioners are not "adverse parties" within the meaning of

Section 137 of the Evidence Act. Moreover, neither testimony

of the plaintiffs and their witnesses, is to be used against the

petitioners, nor testing truthfulness of plaintiffs witnesses,

would assist the Court in rendering finding on issue/s framed in

the suit. In essence, it is to be affirmed that, no reliefs are

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sought by the plaintiffs against the petitioners, the material,

even if elicited in the cross-examination of the plaintiff's

witness by these petitioners would have no bearing over while

answering the issues framed by the trial Court. It is in these

circumstances, the petitioners have no right to cross-examine

the plaintiff's witnesses.