Delhi High Court
Ajit Singh Gill & Ors. vs Arvind Khosla & Anr on 15 July, 2008
Author: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ IA NO.5926/08 in Suit no. CS(OS)234/97
% Date of decision : 15.07.2008
Ajit Singh Gill & Ors. ....... Plaintiff
Through: Mr Vaibhav Sharma,Advocate
Versus
Arvind Khosla & Anr ........ Defendant
Through : Mr. Sudhir Luthra, Advocate
for Defendant No.1.
Mr. G.L. Rawal, Sr. Advocate with Mr
Kuljeet Rawal, Advocate for Defendant
no.2.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.
Whether reporters of Local papers may
be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether the judgment should be reported
in the Digest?
RAJIV SAHAI ENDLAW, J (ORAL)
1. The defendant no.1 has filed this application for direction that
the defendant no.2 be not permitted to cross examine the plaintiff
no.1 appearing as PW1 and who has already been cross examined by
defendant no.1. The defendant no.2 has opposed this application and
sought right to cross examine PW1.
2. The case of the plaintiffs as per the amended plaint is that the
defendants no.1 and 2 were the owners of property no. 324, Sant
Nagar, East of Kailash, New Delhi; that there were huge arrears of
property tax with respect to the said property; that the defendant no.2
had apprised defendant no.1 of the arrears of property tax but the
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defendant no.1 chose to ignore the same; that the defendant no.1
asked the defendant no.2 to explore sale of the property for clearance
of the said dues; that the defendant no.2 offered the said property for
sale to the plaintiffs; that the defendant no.1 agreed to sell his share
of the property to the plaintiffs and informed the defendant no.2 that
the defendant no.2 may execute the sale deed on behalf of the
defendant no.1 also as the defendant no.2 had the power of attorney
executed by the defendant no.1 in her favour for affecting such sale;
that the defendant no.2 sold the property to the plaintiffs and the sale
consideration in equal amounts was paid to the defendants no. 1 & 2.
It is further the case of the plaintiffs that the plaintiffs were thereafter
in possession of the property but the defendant no.1 started
disturbing the possession of the plaintiffs of the said property and also
placed his locks over the locks of the plaintiffs on the said property.
The plaintiffs have claimed the relief of permanent injunction against
the defendant no.1 for restraining him from disturbing the plaintiffs
possession of the property and have also claimed the relief of the
possession with respect to the Ist, 2nd and 3rd floor of the property
from the defendant no.1 only.
3. The defendant no.1 contested the suit and denied that the
defendant no.2 was authorized to sell the property on his behalf and
further denied that the defendant no.2 could sell the defendant no.1's
share of the property.
4. The defendant no.2 filed a written statement to the plaint as
originally filed. In the said written statement, the defendant no.2
stated that the plaint did not disclose any cause of action or relief
against her and as such the defendant no.2 had been wrongly
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impleaded as a party and the name of defendant no.2 is liable to be
struck off from the array of defendants. The defendant no.2 otherwise
admitted the case of the plaintiffs. No written statement was filed by
the defendant no.2 to the amended plaint i.e. after the relief for
possession was added. The defendant no.1 has also filed a counter
claim of declaration in his favour and against the plaintiffs and
defendant no.2 to the effect that the sale deeds of the property to the
extent executed by the defendant no.2 on behalf of the defendant no.1
pertaining to half share of defendant no.1 in the property were
collusive, fraudulent, illegal, nonest and void. The defendant no.2
filed a written statement to said counter claim.
5. The issues were framed in the suit on 24.11.2006 inter-alia to
the effect whether defendant no.2 was authorized and competent to
execute the sale on behalf of defendant no.1 and as to whether the
plaintiffs were entitled to recover the Ist, 2nd and 3rd floor of the
property. Issue was also framed on the counter claim of defendant
no.1 as to whether the defendant no.2 is entitled to the declaration
claimed in the counter claim.
6. The plaintiff no.1 tendered his affidavit by way of the
examination in chief as PW1. Counsel for the defendant no.1
commenced cross examination of PW1. The cross examination of
PW1 was deferred from time to time and in between PW2, PW3 and
PW4 being official witnesses were also examined by the plaintiffs.
PW2, PW3 and PW4 were cross examined by the counsel for the
defendant no.1 and the record reveals that opportunity of cross
examination of said witnesses was given to the counsel for the
defendant no.2 also, though no substantial cross examination of these
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witnesses was done on behalf of the defendant No.2. Adjournment
were sought by the counsel for the defendant no.2 for cross
examination of PW1 after the defendant No.1 closed cross
examination of plaintiff. It was thereafter that the present application
came to be filed by the defendant no.1 objecting to the right of
defendant no.2 to cross examine the PW1. The application was heard
in part on 23.5.2008. Senior Counsel for defendant no.2 submitted
that the contention had been raised by the plaintiff that the defendant
no.2 was in collusion with the defendant no.1 and for this reason the
defendant no.2 wanted to ask questions only on this aspect to the
plaintiff. The counsel for defendant no.2 was permitted to give the
questions which were sought to be put to the plaintiff in cross
examination. The defendant no.2 has filed the questions he intends to
put in cross examination of the plaintiff, inter-alia, to the effect as to
on whose instruction the transaction was entered into, on whose
instruction the plaintiffs gave the consideration money, how the
security was adjusted, whether plaintiff no.1 had any arrears of rent,
whether the original documents were delivered to the plaintiffs and as
to when the plaintiffs had used the address of defendant no.2.
7. The counsel for defendant no.1 has in support of the application
referred to the sections 137 & 138 of the Indian Evidence Act and
relied upon the judgment in Karumanchi Subba Rao v Yarlagadda
AIR 1978 Andhra Pradesh 193 to canvass that only an adversary is
entitled to cross examine. He has submitted that the defendant no.2
is not an adversary of the plaintiff and has no right to cross examine
the plaintiff. It is further submitted that the cross examination of the
plaintiff by the defendant no.2 after the cross examination by the
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defendant no.1 would nullify the cross examination affected by the
defendant no.1.
8. The counsel for the defendant No.2 on the contrary has argued
that the defendant no.2 has filed the written statement to the counter
claim of the defendant no.1 and if it is ultimately held that the
defendant no.2 was not authorized by the defendant no.1 to sell the
property, consequences thereof will fall on the defendant no.2.
9. During the course of hearing, a question also arose as to
whether the defendant no.1 or the defendant no.2 should lead the
evidence first, after the plaintiff's evidence is closed. It was the
submission of the defendant no.1 that since the defendant no.2 is
supporting the case of the plaintiff, the defendant no.2 should lead the
evidence first. Per-contra the defendant no.2 argued that the
defendant no.1 had made counter claim to which written statement
had been filed by the defendant no.2 and for this reason the defendant
no.1 should lead the evidence first.
10. These are the questions which often arise in course of trial. I
have perused the affidavit by way of examination in chief as well as
cross examination by the defendant no.1 of PW1. I find extensive
cross examination by the defendant no.1 of the plaintiff on the aspects
on which the defendant no.2 is now seeking to put questions to PW1.
Undoubtedly, if defendant no.2 is permitted to put the said question to
PW1, PW1 would have a second chance to reply/to give an
explanation. The apprehension of the defendant no.1 that his cross
examination of the plaintiff would thereby be nullified cannot be said
to be unfounded. If the defendant No.2 is now permitted to cross
examine the PW1, it would give the plaintiffs and defendant No.2
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whose case is the same, an unfair advantage over the defendant No.1
in the trial. The defendant No.2 did not seek any right to cross
examine the PW1 till the conclusion of cross examination by the
defendant No.1.
11. Section 137 of Evidence Act describes cross examination as
" The examination of a witness by "adverse" party." It has been held
in State of West Bengal Vs. Rama Devi, AIR 2002 Calcutta 235
that in the scheme of the Evidence Act, there is no provision for
friendly cross examination by the proforma defendant. Similarly, in
Hussens Hasanall Pulavwala Vs. Sabbirbhai Hasanali Pulavwala and
Ors. AIR 1981 Gujarat 190, also it was held that in order to cross
examine a witness, it must be shown that the party seeking cross
examination is an adverse party. Merely because a party is shown as
defendant in the cause title of the plaintiff, that party cannot be styled
as an adverse unless it is further shown that the party is a contesting
party in the sense that he disputes the case put up by the plaintiff in
the plaint. If a party accepts the plaintiff's case, as defendant no.2
has done in the present case, there is no contest between the plaintiff
and that party and such defendant cannot be styled as an adverse
party and would, therefore not be entitled to cross examine the
plaintiff. Recently the same view was taken in Vijaya v S
Saraswathy (MANU/TN/0246/2008). Therefore in the scheme of the
Evidence Act, the defendant no.2 being not an adversary of the
plaintiff is not entitled to cross examine PW1. The submission of the
Senior Counsel for the defendant no.2 on 23.5.2008 that the plaintiff
had stated that the defendant no.2 was in collusion with defendant
no.1 has not been urged now and the questions for cross examination
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submitted now are also not on those lines.
12. The reasoning now given by the defendant no.2 for cross
examination of PW1 is fallacious. Merely because defendant no.1 has
filed a counter claim and to which the defendant no.2 has filed a
written statement would still not make the plaintiff/PW1 who is sought
to be cross examined an adversary of the defendant no.2 entitling the
defendant no.2 to cross examine PW1. I find that a similar view had
been taken as far back as in Jarwa Bai Vs. Pitambar Nilambar
Shah AIR 1917 Calcutta 264 by three Hon'ble Judges of that Court. A
Division Bench in Moti Ram Narwari Vs. Lalit Mohan Ghose, AIR
1920 Patna 94 also held that the usual practice in cases where some
of the defendants support the plaintiff's case and others oppose, is to
order that those who support the plaintiff's case should cross examine
the plaintiff's witnesses first, if they desire to do so and to call their
evidence and address the court before the defendants, who oppose
the plaintiff's case do so. It was held that any other practice would be
inconvenient and might work an injustice to those defendants who
oppose the plaintiff's case; in the first place after the opposing
defendants have cross examined the plaintiff's witnesses, the other
defendants who support the plaintiff's case would be entitled to cross
examine and by leading questions possibly elicit evidence from the
witnesses, which had not been elicited in the examination in chief and
about which the opposing defendants had no opportunity of cross
examining. It was further held that even if a further opportunity of
cross examination was given to the contesting defendants ( as was
suggested by the Senior Counsel for the defendant no.2 in the present
case also ) it would be a cumbersome process would prolong the
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proceedings.
13. The other reasoning propounded by defendant no.2 for cross
examination of the PW1 is also not correct. The plaintiffs have not
claimed any alternate relief against the defendant no.2; merely
because there may be consequences in the event of it being held in
this suit that the defendant no.2 was not entitled to sell the property
on behalf of the defendant no1, would still not entitle the defendant
no.2 to cross examine the plaintiff. It is a settled principle that a
party who has had no right of cross examination is not affected by the
examination in chief. The filing of the counter claim by the defendant
no.1 and written statement thereto by the defendant no.2 also has no
bearing on the cross examination by defendant no.2 of the plaintiff.
That merely entitles the defendant no.2 to cross examine the
defendant no.1. This right of cross examination between co-
defendants is no longer resintigra. Besides the judgments of this
court in Des Raj Chopra Vs. Pooran Mal, 1975(XI)DLT63 and Saroj
Bala Vs. Dhanpati Devi 134(2006) DLT 219, other courts also have
taken the same view in Sadhu Singh Vs. Sant Narain, AIR 1978 P &
H 319 and Ennen Castings Pvt. Ltd. Vs. M.M. Sundaresh, AIR
2003, Karnataka 293.
14. The application of the defendant no.1 is, therefore, allowed. The
defendant no.2 is not entitled to cross examine PW1. The cross
examination of PW1 by the counsel for the defendant no.1 stands
concluded. The counsel for the plaintiff stated that he does not want
to examine any other witness. The plaintiff's evidence as such stands
closed.
15. As aforesaid, during the course of hearing, question also arose
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as to which of the of the defendants should lead evidence first.
Besides Moti Ram Narwari, even in Haji Bibi Vs. H.H. Sirssultan
Mahmood Khan, 10 Bombay Law Reporter 327, it was laid down
that the plaintiff and such of the defendants as supports the plaintiff's
case wholly or in part should address the court and call their evidence
in the first place and the other party i.e. the person who opposes the
plaintiff's case should address the court and call their evidence
thereafter. It was further held that the question as to which of the
defendant should lead evidence first does not depend upon the order
in which they appear on the record. Merely because the defendant
no.1 has filed a counter claim would not change the aforesaid position
of law. The counter claim of the defendant no.1 is intertwined with
the claim of the plaintiffs and in the event of the case being decided in
favour of the plaintiffs, the counter claim of the defendant no.1 is
bound to be dismissed and vice versa. I clarify that the defendant
No.2 is to lead evidence before defendant No.1.
RAJIV SAHAI ENDLAW
(JUDGE)
July 15, 2008
k
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