Mrs. Sarabjit Singh vs Mr. Gurinder Singh Sandhu & Ors.
2010 Latest Caselaw 5097 Del

*            THE HIGH COURT OF DELHI AT NEW DELHI

+                    CS(OS) No.642/1993

                                         Reserved on : 01.11.2010
                                    Date of Decision : 09.11.2010

Mrs. Sarabjit Singh                              ......Plaintiff
                              Through:     Mr.     S.K.  Sharma,
                                           Advocate

                                Versus

Mr. Gurinder Singh Sandhu & Ors.                 ...... Defendants
                        Through:           Mr. J.K. Seth, Sr. Adv.
                                           with Ms. Shalini Kapoor,
                                           Advocate for defendant
                                           No.1.
                                           Mr. I.S. Alag, Adv. for
                                           defendants No.2, 3 & 5.

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.    Whether Reporters of local papers may be
      allowed to see the judgment?                           YES
2.    To be referred to the Reporter or not ?                YES
3.    Whether the judgment should be reported
      in the Digest ?                                        YES

V.K. SHALI, J.

1. 17 years have gone by and still the Court is faced with the

question as to which of the defendants should cross

examine the PW-1, the only witness whose examination-in-

chief has been completed. In order to appreciate the point

in issue, it is necessary to give brief facts of the case.

2. A suit for partition came to be filed by the plaintiff against

her brother (D-1), sisters (D-2 to 4) and husband of

defendant No.2 (D-5). The centre of controversy was the

properties left by one Lt. Col. Gurpuran Singh, father of the

plaintiff and the defendants No.1 to 4. He is stated to have

died at Delhi on 13th April, 1992. From the list of

properties, Late Lt. Col. Gurpuran Singh seemed to be a

man of means as he even owned a Rolls Royce car. The

claim of the plaintiff was that she has 1/5th share in the

estate of the Late Lt. Col. Gurpuran Singh on the basis of

the Will dated 4th March, 1992 purported to have been

made by him.

3. The defendant No.3 filed her written statement and had

not specifically denied the execution of the Will dated 4th

March, 1992 purported to have been made by her father.

However, she took the stand that one of the properties,

which was huge agricultural land, was given to her by the

deceased father vide Will dated 29th January, 1982. Thus,

the defendant No.3 had partially supported the case of the

plaintiff except that she wanted the agricultural land be

taken away from the arena of controversy.

4. The defendant No.4 has also admitted the Will dated 4th

March, 1992 as the basis of partition.

5. The defendant No.1 has denied the execution of both the

Wills dated 29th January, 1982 in favour of defendant No.3

or the Will dated 4th March, 1992 on the basis of which the

plaintiff laid her claim. It may be pertinent here to mention

that defendant No.1 is the real brother of the plaintiff. The

suit itself was filed in the year 1993 and issues have been

framed on 24th July, 2008. Affidavit of PW-1, the sole

witness has been tendered in examination and the witness

was to be cross examined by the defendants at which stage

the controversy arose as to who is to cross examine the

said witness first.

6. The case of the defendant No.1 was that the defendant No.3

and other defendants who are supporting the case of the

plaintiff either fully or partially must be directed to cross

examine the witness first and thereafter the defendant No.1

will cross examine the said witness. Sh. J.K.Seth, learned

senior counsel on behalf of the defendant No.1 had

contended that in case the aforesaid order is not followed, it

would only give an opportunity to the defendants No.2 to 4

to fill up the lacunae which may be brought about by the

cross examination of defendant No.1 and thus would

prejudicially affect the case of the defendant No.1 whose

interest is totally adverse to that of the plaintiff. The

learned senior counsel in support of his contention has

relied on judgments titled Shah Hiralal Himatlal & Ors.

Vs. M.G. Pathak & Ors. AIR 1964 Gujarat 26, M.

Hymavathi & Anr. Vs. M. Koteswararao & Ors. AIR

2006 AP 395 and Sunil Chhatrapal Kedar Vs. Y.S.

Bagde 2004 MHLJ 4 620.

7. The aforesaid three authorities which have been cited by

the learned senior counsel essentially support the

contention that the defendant who is supporting the case of

the plaintiff partially or fully must be directed to cross

examine the witness of the plaintiff first in comparison to a

defendant who is contesting the claim of the plaintiff.

8. Mr. Alag, learned counsel for defendant No.3 has refuted

this contention of the learned senior counsel by contending

that the defendant No.3 is not supporting the case of the

plaintiff either partially or fully which may entail passing of

a direction to defendant No.3 to cross examine the plaintiff

first in comparison to the defendant No.1. The learned

counsel had drawn the attention of the Court to his written

statement in order to show that one of the properties in

respect of which partition is sought by the plaintiff is an

agricultural land situated in Punjab, while as the defendant

No.3 is contesting the claim of the plaintiff with regard to

this property on the ground that the said property has

already been given by the late father of the parties to the

defendant No.3 and she has also mutated the same in the

Revenue record in her own name. The learned counsel

contended that by such an averment, having been made by

defendant No.3 in written statement, it could not be said

that defendant No.3 is either admitting the claim of the

plaintiff based on a Will of 1992 either partially or fully and

therefore the order of cross examination must follow the

same order in which they are shown as defendants.

9. I have heard Mr. S.K. Sharma, the learned counsel for the

plaintiff, Mr. J.K. Seth, learned senior counsel for

defendant No.1 as well as the learned counsel, Mr. I.S. Alag

on behalf of the defendant No.3. I have also gone through

the record as well as the judgments.

10. None of the parties has cited any judgment of the Apex

Court on the point which is raised in the instant case, nor

have I been able to lay my hand on any such authority.

Under these circumstances, one has to fall back on the

judgments which have been cited by the learned counsel for

the plaintiff. Out of the three judgments which have been

cited by the learned counsel for defendant No.1, the

judgment in Shah Hiralal Himatlal's case (supra) is

passed by the learned Single Judge of the Gujarat High

Court way back in 1964 wherein it has been held as under

:

"(4) So far as the defendants go, the question which of the defendants should begin has not been dealt with in Order 18, Civil Procedure Code. But on general principle, if any of the defendants supports the plaintiff in whole or in part, then he should address the Court and lead his evidence first before the other defendants who do not support wholly or in part the plaintiff‟s case. The order in which defendants lead evidence becomes important only when some of them support the case of the plaintiffs in whole or in part while the others do not. If all the defendants completely oppose the plaintiff‟s case, then the question of order of leading evidence amongst the defendants is immaterial. It is only when the defendants are divided into two groups, one group consisting of the defendants supporting the plaintiff‟s case in part and the other group consisting of defendants, who do not support the plaintiff‟s case in any part that the question of order of leading evidence becomes important. In such cases among

defendants the order of leading evidence should be as follows :

(1) Those defendants who fully support the case of the plaintiff.

(2) Those defendants who partly support the case of the plaintiff.

(3) Those defendants who do not support the case of the plaintiff in any part."

A perusal of the aforesaid para of the Judgment would

show that the said judgment has categorized the

defendants into three essential categories - one who fully

support the case of the plaintiff, secondly the defendants

who partially support the case of the plaintiff and thirdly

those who do not support the case of the plaintiff or any

part. It has been held that they will cross examine the

witnesses in the same order. The said judgment in the case

of Shah Hiralal Himatlal's case (supra) has been followed

by Andhra Pradesh High Court in Hymavathi's case

(supra). In 2004, Sunil Chhatrapal's case (supra), the

issue was examined by the Bombay High Court again

where the reference was made to the two judgments of

Gujarat and the Andhra Pradesh High Courts and after

discussing both these judgments, the learned Single Judge

of Bombay High Court has also arrived at the same

conclusion that the party who is fully or partially

supporting the case of the plaintiff must cross examine the

witness of the plaintiff in the first instance as against the

party who is contesting the claim of the plaintiff. Reference

has also been made to Section 137 of the Evidence Act

which lays down that when the witness is examined by way

of examination-in-chief, then he will be cross examined by

the „adverse‟ party. It has been concluded by the Bombay

High Court that a party who is supporting the case of the

plaintiff either fully or partially cannot be said to be an

„adverse‟ party in the same sense in which a party is

contesting the claim of the plaintiff. It has been observed

that in case this order is not followed for the purpose of

cross examination, then any lacunae which is left in the

cross examination by the contesting party will be filled up,

in the cross examination conducted by the defendants, who

are partially or fully supporting the case of the plaintiff.

This will be prejudicial to the interest of the contesting

party and therefore it has supported the view of Gujarat

High Court as well as the Andhra Pradesh High Court.

11. I have gone through the aforesaid three authorities and I

find myself to be in agreement with the reasoning given by

the Bombay High Court as well as the Gujarat High Court,

so far as the order in which the cross examination of the

plaintiff‟s witnesses is to be conducted. The reason for

such an order is not far to seek. The Hiralal's case has

rightly classified the defendants into three categories -

firstly those who are supporting the case of the plaintiff

fully, secondly those who are partially supporting the case

of the plaintiff and thirdly those who are not at all

supporting the case of the plaintiff. The classification of

the defendants in the aforesaid three categories must

regulate the cross examination of the plaintiff‟s witness. It

may be pertinent here to mention that Section 137 of the

Evidence Act also lays down that when a witness enters

into a witness box, he will be first subjected to

examination-in-chief, then cross examination and

thereafter re-examination.

12. The Evidence Act clearly lays down that the scope of cross

examination is much wider as it permits a party to cross-

examine the witness even regarding his character in order

to impeach his credibility. Leading questions which are

suggestive of answer can also be asked to the witness.

Therefore, in such a contingency where the scope of cross

examination is much wider and gives better leeway to the

defendant, it cannot be permitted by a party who either

fully or partially supports the case of the plaintiff to cross

examine witness after the contesting party has done. If this

is permitted to be done, then it will greatly prejudice the

rights of the parties who are contesting the claim of the

plaintiff. I therefore find myself in agreement with the

judgment of Hiralal's case that the party which supports

the case of the plaintiff partially or fully must cross

examine the witness of the plaintiff first. Accordingly, so

far as the facts of the present case are concerned, the

defendants No.3 and 4 are supporting the case of the

plaintiff both partially and fully respectively and therefore

they must first cross examine the witness of the plaintiff

first rather than the defendant No.1 who is contesting the

claim of the plaintiff. I accordingly allow the contention of

the defendant No.1 directing defendant No.3 and other

defendants to cross examine the plaintiff‟s witness in the

first instance before the defendant No.1 undertakes the

cross examination. However, expression of any opinion

hereinbefore shall not be deemed to be an expression on

the merits of the case.

CS(OS) No.642/1993

List the matter before learned Joint Registrar on

01.12.2010 for fixing up dates of trial.

V.K. SHALI, J.

November 09, 2010 skw