Delhi High Court - Orders
Rajinder Kumar Tanwar vs State & Ors on 3 November, 2022
Author: Amit Bansal
Bench: Amit Bansal
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ TEST.CAS. 97/2014
RAJINDER KUMAR TANWAR ..... Petitioner
Through: Mr.D.K.Sharma, Advocate.
versus
STATE & ORS ..... Respondents
Through: Mr.Amit Gupta and Mr.Shiv Verma,
Advocates for R-2, 3 and 5.
CORAM:
HON'BLE MR. JUSTICE AMIT BANSAL
ORDER
% 03.11.2022 I.A. 7578/2019 (of the respondents no.2, 3 and 5 u/O-VIII R-1 of CPC)
1. Counsel for the applicants/respondents no.2, 3 and 5 submits that in view of the fact that the respondent no.6 is supporting the case of the petitioner, he could not have been permitted to cross-examine the witness of the petitioner, after the cross-examination of the petitioner's witness was conducted by the respondents no.2, 3 and 5. He relies upon the judgment in Thota Suryanarayana v. Kanumuri Sitarama Bapiraju, 2003 SCC OnLine AP 960 and judgement of a Co-ordinate Bench of this Court dated 15th July, 2008 in CS(OS) No.234/97 titled Ajit Singh Gill v. Arvind Khosla.
2. Further, counsel for the applicant has drawn attention of the Court to the order dated 28th January, 2020 passed by this Court. Paragraphs 3 and 4 of the said order in the present application are reproduced below:
"3. The contention of the applicant [respondent Nos. 2, 3 and 5] is that respondent No.6 is supporting the petitioner, but sought Signature Not Verified Digitally Signed By:AMIT BANSAL TEST.CAS. 97/2014 Page 1 ofSigning 4 Date:04.11.2022 18:38:35 to cross examine the petitioner after the cross examination conducted by learned counsel for respondent Nos. 2, 3 and 5. Learned counsel for the applicants relies upon the judgments of this Court in Ajit Singh Gill & Ors. vs. Arvind Khosla & Anr. [I.A.5926/2008 in CS(OS) 234/1997, decided on 15.07.2008] and Sarabjit Singh vs. Gurinder Singh Sandhu And Ors. [CS(OS) 642/1993, decided on 09.11.2010] in support of his contention.
4. Learned counsel for respondent No.6 submits that the said respondent is not supporting the petitioner and in fact filed a reply/written statement on 24.02.2015 under diary No.84203/2015. I find from the record that the said reply filed by respondent No.6 was returned under objections. Learned counsel for respondent No.6 is directed to file a copy of the said reply/written statement filed under diary No.84203/2015 dated 24.02.2015 alongwith a copy of his reply in the event he wishes to urge that he is in fact opposing the present petition."
3. As can be seen from the paragraphs quoted above the respondent no.6 was specifically directed to file a copy of the reply/written statement filed on 24th February, 2015 under diary no. 84203/2015, along with a copy of his reply in the event the respondent no.6 wishes to urge the fact that the respondent no.6 is opposing the present petition.
4. No steps have been taken on behalf of the respondent no.6 to file a copy of the reply/written statement. Respondent no.6 has neither appeared in the matter after passing of the said order, nor has filed any reply to the present application. In view thereof, it has to be taken that the respondent no.6 is not opposing the present petition filed on behalf of the petitioner.
5. In Thota Suryanarayana v. Kanumuri Sitarama Bapiraju, 2003 SCC OnLine AP 960, Andhra Pradesh High Court was dealing with a revision petition arising out of an order of the Trial Court holding that the Signature Not Verified Digitally Signed By:AMIT BANSAL TEST.CAS. 97/2014 Page 2 ofSigning 4 Date:04.11.2022 18:38:35 defendants therein were not adverse parties and therefore, did not have a right to cross-examine the witnesses of the plaintiff therein. Placing reliance on Section 137 of the Indian Evidence Act, 1872 and the judgment in Hussens Hasanali Pulavwala v. Sabbirbhai Hasanali Pulavwala, 1981 SCC OnLine Guj 30, the Andhra Pradesh High Court held that by holding that where a defendant in a suit is supporting the case of the plaintiff, he cannot be said to be an adverse party and hence, cannot cross-examine the plaintiff. Accordingly, the judgment of the Trial Court was upheld.
6. In the judgment dated 15th July, 2008 in CS(OS) 234/1997 titled Ajit Singh Gill And Ors. v. Arvind Khosla And Anr., a Co-ordinate Bench of this Court was seized of a similar application seeking a direction that the co- defendant not be permitted to cross-examine the witness of the plaintiff after he had been cross-examined by the said defendant on the ground that the co- defendant was supporting the case of the plaintiff. The Co-ordinate bench allowed the said application and held that the said co-defendant was not entitled to cross-examine the witness of the plaintiff as the said co-defendant was not contesting the case filed by the plaintiff.
7. In view of the settled legal position, a co-defendant/co-respondent is not permitted to cross-examine witnesses of the plaintiff/petitioner after the cross-examination of the said co-defendant/co-respondent has been conducted by the contesting defendant/respondent.
8. In the present case, as noted above, the respondent no.6 has failed to file any objections opposing the petition filed on behalf of the petitioner. Further he has not even bothered to appear before this Court after the order was passed on 28th January, 2020. No reply has been filed to the present application on behalf of the respondent no.6 nor has he contested the same Signature Not Verified Digitally Signed By:AMIT BANSAL TEST.CAS. 97/2014 Page 3 ofSigning 4 Date:04.11.2022 18:38:35 in any manner. Ultimately, through the present application the applicant is seeking to curtail the right of the respondent no.6 to conduct the cross- examination and to expunge the cross-examination of PW-1 conducted on behalf of the respondent no.6 on 13th May, 2019. If the said respondent no.6 is not interested in asserting this right, the petitioner cannot be heard to espouse the said right on his behalf.
9. Accordingly, the present application is allowed and the cross- examination of PW-1 conducted on behalf of respondent no.6 on 13th May, 2019 is expunged from the record of the case.
TEST.CAS. 97/201410. List before the Joint Registrar for fixing dates for cross-examination of the remaining witnesses on 8th December, 2022.
11. Costs imposed by the order dated 28th January, 2020 of Rs.7,500/- has been paid by the respondents no.2, 3 and 5 to the counsel for the petitioner today.
AMIT BANSAL, J.
NOVEMBER 3, 2022 sr Signature Not Verified Digitally Signed By:AMIT BANSAL TEST.CAS. 97/2014 Page 4 ofSigning 4 Date:04.11.2022 18:38:35