Kerala High Court
Rajeev Thomas vs Sheeja Antony on 29 March, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
WEDNESDAY, THE 29TH DAY OF MARCH 2023 / 8TH CHAITHRA, 1945
O.P.(FC) NO. 405 OF 2021
AGAINST THE ORDER DATED 05.04.2021 IN I.A.NO.2478 OF 2019
IN O.P.NO.300 OF 2016 ON THE FILE OF THE FAMILY COURT,
KOTTAYAM
PETITIONER:
RAJEEV THOMAS,
AGED 43 YEARS, S/O. THOMAS, KOCHUKANICADU
HOUSE, PERUMBANACHY P.O., MADAPPALLY VILLAGE,
REP BY HIS POWER OF ATTORNEY HOLDER BEENA JOSHY
(ROSAMMA) , AGED 43 YEARS, W/O. JOSHY JOSEPH
PADANILAM, RESIDING AT PADANILAM HOUSE,
THRIKODITHANAM P.O., THRIKODITHANAM VILLAGE,
CHANGANASSERY TALUK, KOTTAYAM DISTRICT.
BY ADVS.
V.R.KESAVA KAIMAL
C.S.RAJANI
RESPONDENTS:
1 SHEEJA ANTONY
KOCHUKANICADU HOUSE, PERUMBANACHY P.O.,
MADAPPALLY VILLAGE, KOTTAYAM DISTRICT-686 548.
2 MARYKUTTY THOMAS,
PADANILATHU HOUSE,THRIKODITHANAM P.O., KOTTAYAM
DISTRICT-686 105.
2
O.P.(FC) No.405 of 2021
3 ROSAMMA THOMAS,
PADANILATHU HOUSE,THRIKODITHANAM P.O.,
KOTTAYAM DISTRICT-686 105.
4 SAJU THOMAS,
KARAKKATTUKUNNEL HOUSE, KORUTHODU P.O.,
MUNDAKKAYAM VILLAGE, KOTTAYAM DISTRICT-686 513
BY ADVS.
RAJESH SIVARAMANKUTTY
P.VISHNU PRASAD
ARUL MURALIDHARAN
T.S.ATHIRA
THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL
HEARING ON 17.03.2023, THE COURT ON 29.03.2023 DELIVERED
THE FOLLOWING:
3
O.P.(FC) No.405 of 2021
JUDGMENT
P.G. Ajithkumar, J.
Ext.P8 order dated 05.04.2021 of the Family Court,
Kottayam at Ettumanoor is under challenge in this Original
Petition filed under Article 227 of the Constitution of India.
The 4th respondent in O.P.No.300 of 2016 was examined in
chief. He was cross-examined by the petitioner. Respondent
Nos.1 to 3 have not cross-examined the 4th respondent. At
that stage, the petitioner in O.P.No.300 of 2016 filed
I.A.No.2478 of 2019 requesting the court not to allow
respondents No.1 to 3 to cross-examine the 4 th respondent.
The Family Court as per Ext.P8 allowed that request. The 1 st
respondent in O.P.No.300 of 2016 filed this Original Petition
challenging that order.
2. On 11.08.2021, the Original Petition was admitted.
Notice was directed to be served on respondents No.1 and 4
and service of notice on respondents No.2 and 3 was
dispensed with. Further proceedings in O.P.No.300 of 2016
was stayed.
O.P.(FC) No.405 of 2021
3. Heard the learned counsel appearing for the
petitioner and the learned counsel appearing for respondents
No.1 and 4.
4. O.P.No.300 of 2016 was filed by the 1st respondent
seeking a decree of recovery of gold ornaments and money.
She filed M.C.No.145 of 2016 for getting maintenance. The
petitioner is the husband of the 1st respondent. The petitioner
has filed O.P.(G&W) No.992 of 2016, O.P.No.290 of 2018 and
O.P.No.292 of 2018; all are pending trial before the Family
Court. The 4th respondent is the petitioner in O.P.Nos.555 of
2018 and 556 of 2018, which he originally filed before the
Munsiff's Court, Changanassery and later transferred to the
Family Court. The 4th respondent wants to establish his right
and title to the property he purchased from the petitioner, for
which he has filed O.P.Nos.555 and 556 of 2018. All other
cases are relating to the matrimonial dispute between the
petitioner and the 1st respondent. Respondent Nos.2 and 3,
being the mother and sister of the petitioner, were made
parties to the litigations. During the joint trial of the said
O.P.(FC) No.405 of 2021
cases, the 4th respondent was examined as a witness. He was
cross-examined on behalf of the 1 st respondent. When
reached the turn of the petitioner, the 1 st respondent filed
I.A.No.2478 of 2019. The contention was that the petitioner
and the 4th respondent were having a common interest and
were not adverse parties. By virtue of the provisions of
Sections 137 and 138 of the Indian Evidence Act, 1872, an
adverse party alone has the right to cross-examine, and
therefore, the petitioner does not have the right to cross-
examine the 4th respondent. It was further contended that the
petitioner and also respondents No.2 and 3, who contested
the case in common, tactfully avoided to cross-examine the
4th respondent before the cross-examination by the 1 st
respondent and their intention was to get over the flaws in
their evidence and to fill up lacuna.
5. The learned counsel appearing for the petitioner
would submit that from the objection filed by the 4 th
respondent in O.P.No.300 of 2016 it is quite clear that he has
not been sailing with petitioner, instead they have conflicting
O.P.(FC) No.405 of 2021
interest. A specific contention set forth by the 4 th respondent
is that the original petition was filed by the petitioner in
collusion with the 1st respondent. Such a contention is seen
raised in the objection, a copy of which is Ext.P5.
6. The Family Court placed reliance on the decision in
Sudam Sahoo v. District Judge, Cuttack and others [AIR
2016 Ori.38 : 2016 KHC 2547] in order to hold that the
petitioner not being an adverse party, has no right to cross-
examine the 4th respondent. In that decision, the principle laid
down was that an adverse party alone has the right to cross-
examine a witness. There cannot be any quarrel with that
proposition since Section 137 of the Evidence Act says that the
examination of a witness by the adverse party is called the cross-
examination. Therefore, the question is whether the petitioner
can be termed as an adverse party in the context of Section 137
of the Evidence Act insofar as the 4th respondent is concerned.
7. The 4th respondent purchased property from the
petitioner. While the 4th respondent wants to establish that he
obtained valid title to the property, the 1 st respondent wants
O.P.(FC) No.405 of 2021
to avoid the sale deeds in favour of the 4 th respondent. The 1st
respondent has a contention that in order to defeat her
interest, the petitioner has alienated the property in favour of
the 4th respondent. In that view of the matter, it may be said
that there has been a common interest for the petitioner and
the 4th respondent. But, the 4th respondent would contend that
in order to defeat his right, the petitioner instigated the 1 st
respondent to initiate the proceedings. When collusion
between the petitioner and the 1st respondent is thus alleged,
interse interest between the 4th respondent and the petitioner
becomes conflicting.
8. Moreover, if the petitioner is denied an opportunity
to cross-examine the 4th respondent, no part of his evidence
can be used against the petitioner. In that view of the matter
also, the petitioner has to be given an opportunity to cross-
examine the 4th respondent. Of course, the petitioner should
have cross-examined first. But there is nothing on record to
show that the 1st despondent insisted on the petitioner to
cross-examine the 4th respondent first.
O.P.(FC) No.405 of 2021
9. In such circumstances, we are of the view that
Ext.P8 order is unsustainable in law and liable to be set aside.
The Family Court shall give an opportunity to the petitioner to
cross-examine the 4th respondent. Considering the nature of
the contentions and in the interest of justice, it is necessary to
give a further opportunity to the 1 st respondent to cross-
examine the 4th respondent, once the petitioner completes his
cross-examination. The Family Court shall ensure that the
cross-examination by the petitioner is as permitted under
Section 5 of the Evidence Act alone and does not go beyond
the points in controversy in O.P.Nos.555 and 556 of 2018.
This Original Petition is allowed accordingly.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
O.P.(FC) No.405 of 2021
APPENDIX OF OP (FC) 405/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE ORIGINAL PETITION IN
OP NO.3000/2016 ON THE FILES OF FAMILY
COURT, ETTUMANOOR
EXHIBIT P2 TRUE COPY OF THE PETITION IN G &
W.O.P.NO.992/2016 ON THE FILES OF
FAMILY COURT, ETTUMANOOR
EXHIBIT P3 TRUE COPY OF THE DIVORCE O.P.PETITION
NO.290/2018 ON THE FILES OF FAMILY
COURT, ETTUMANOOR
EXHIBIT P4 TRUE COPY OF THE OBJECTIONS FILED BY
THE FIRST RESPONDENT TO EXT.P3
EXHIBIT P5 TRUE COPY OF THE OBJECTIONS FILED BY
THE FOURTH RESPONDENT TO EXT.P1
EXHIBIT P6 TRUE COPY OF THE PETITION IN IA
NO.2478/2019 IN OP NO.300/2016 ON THE
FILES OF FAMILY COURT, ETTUMANOOR
EXHIBIT P7 TRUE COPY OF THE OBJECTIONS FILED TO
EXT.P6
EXHIBIT P8 TRUE COPY OF THE ORDER DATED
05.04.2021 IN IA NO.2478/19 IN OP
NO.300/16 PASSED BY THE FAMILY COURT,
ETTUMANOOR
