Andhra HC (Pre-Telangana)
Thota Suryanarayana And Anr. vs Kanumuri Sitarama Bapiraju And Ors. on 17 October, 2003
Equivalent citations: 2003(6)ALD799
ORDER P.S. Narayana, J.
1. Heard Sri S.Subba Reddy, the learned Counsel representing the revision petitioners-respondents 11 and 12-defendants 13 and 14 and Sri T. Durga Prasad Rao, the learned Counsel representing the first respondent-plaintiff. The order dated 25.4.2002 made in I.A. No. 461 of 2002 in O.S. No. 42 of 1997 on the file of the Principal Junior Civil Judge, Tadepalligudem is impugned in the present Civil Revision Petition filed under Article 227 of the Constitution of India by the revision petitioners, Respondents 11 and 12 in the application, defendants 13 and 14 in the suit.
2. An application under Order XVIII, Rule 1 of the Code of Civil Procedure, hereinafter referred to in short as 'the Code' and Section 138 of the Indian Evidence Act, hereinafter referred to in short as 'the Act', was filed by the applicants with a prayer to expunge or delete the cross-examination of PWs.1 to 3 by defendants 13 and 14 in the suit. The said application was allowed and the cross-examination of PWs.1 to 3 by defendants 13 and 14 had been expunged mainly on the ground that these parties cannot be treated as adverse parties and hence, they have no right to cross-examine these witnesses. Assailing the said order, the present revision had been filed.
3. Sri S. Subba Reddy, the learned Counsel representing the revision petitioners had submitted that the suit O.S.No. 42 of 1997 on the file of the Principal Junior Civil Judge, Tadepalligudem was filed for mandatory injunction directing the defendants to remove the wall along 'X-X1' in a length of 1 yard and a width of 9 inches above the ground and 14 inches below the ground and also to remove the projected sunshade into the plaintiff's site and other reliefs. The learned Counsel also contended that it is clear from the written statement filed by the 14th defendant as adopted by the 13th defendant that these parties never supported the case of the plaintiff. The learned Counsel also would maintain that the contest by a party can be only to a particular extent and it need not be in toto always. The learned Counsel also had distinguished the decisions relied upon by the learned Judge while allowing the application. The Counsel had also contended that the learned Advocate representing these parties never objected when these witnesses were cross-examined, but as an afterthought, this application was filed. The learned Counsel further submitted that a clear stand was taken by the revision petitioners-contesting defendants that they are co-owners along with the other defendants according to the deed of the year 1887. In view of the same, it cannot be said that the revision petitioners are sailing with the plaintiff. The learned Counsel also would maintain that admission made by the parties should be clear, unequivocal and categorical and hence, on a reading of the written statement it cannot be said that the contents of the plaint had been admitted and reliance was placed in Chikkam Koteswara Rao v. Chikkam Subbarao and Ors., .
4. Per contra, Sri T.Durga Prasad Rao, the learned Counsel representing the first respondent-plaintiff had contended that the contesting defendants-defendants 1 to 3 had taken a specific stand that the other defendants inclusive of defendants 13 and 14 are sailing with the plaintiff. The learned Counsel also pointed out that on a careful reading of the pleadings of the respective parties, the plaint, the written statement of the 1st and 2nd defendants and the written statement of 14th defendant as adopted by the 13th defendant, it is clear that defendants 13 and 14 are not very particular of entering into any triable issue with the plaintiff. But, however, they are trying to get some advantage out of the result of the litigation. It cannot be said to be a specific denial within the meaning of Order VIII Rule 5 of the Code. The learned Counsel also maintained that the mere fact that in the written statement ultimately dismissal of the suit had been prayed for, that cannot be a test for deciding whether such parties can be permitted to cross-examine the witnesses or not. The learned Counsel also had drawn the attention of the Court to Section 138 of the Act in this regard. Reliance was placed on Karumanchi Subbarao v. Yarlagadda Venkatappaiah and Ors., , Hussens Hasanali Pulavwala v. Subbirabhai Hasanali Pulavwala and Ors., and G.V.K. Raju v. B. Jayalakshmi, 1988 (1) ALT 171.
5. Heard both the Counsel and also perused the material available on record.
6. As already referred to supra, the application was moved to expunge or delete the cross-examination of PWs.1 to 3 by the Counsel representing defendants 13 and 14 in the suit. On verification it was found that the revision petitioners-defendants 13 and 14 are not entitled to cross-examine these witnesses in the light of the stand taken in their written statements, the application was moved praying the aforesaid relief which was ultimately allowed by the learned Judge. It is no doubt true that in the written statement, the dismissal of the suit was prayed for, but however, a careful reading of the pleading would go to show that defendants 13 and 14 are not particular of entering into any controversy or going to trial on any triable issue between the parties, In my considered opinion, this is the test which may have to be followed while permitting a party to cross-examine, within the meaning of Section 138 of the Act. Section 138 of the Act reads as hereunder:
"Order of examinations :--Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.
The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.
Direction of re-examination :--The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter."
7. Order VIII Rule 5 of the Code dealing with specific denial reads as hereunder:
"(1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability:
Provided that the Court may in its discretion require any fact so admitted to be provided otherwise than by such admission.
(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.
(3) In exercising its discretion under the proviso to Sub-rule (1) or under Sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.
(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.
Similar question had fallen for consideration and this Court in K.Subba Rao v. Y. Venkatappaiah's case (supra) held as hereunder:
"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, where 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."
8. In G.V.K. Raju v. B. Jayalakshmi's case (supra), it was held that:
"Sub-rule (4) of Order 18 does not in express terms authorize the supporting defendants to lead evidence after the closure of the evidence of the contesting defendants. But that is not to deny the Court's inherent powers to permit a party or any other person to lead evidence in the interests of justice at any stage of the trial. Such inherent power cannot be allowed to be used by a scheming party to fill up the blanks and close the gaps created by them willingly or un-willingly but certainly knowing. Having been satisfied with the evidence that has already been led by the plaintiffs for their common good, the supporting defendants might have well chosen not to go into the box. The failure of the Court to warn the supporting defendants about their right to lead evidence would not make any difference. It is never for the Court to invite a party to exercise its right of leading evidence."
9. In Hussens Hasanali Pulavwala's v. Subbirabhai Hsanali Pulavwala and Ors. case (supra), it was held that 'where a party is shown as defendant in the plaint supporting the case of the plaintiff, such party cannot be said to be an adverse party and hence cannot cross-examine the plaintiff.
10. Reliance was placed in Chikkam Koteswara Rao v. Chikkam Subba Rao and Ors. case (supra), wherein the Apex Court had dealt with the admissions under Section 17 of the Act. The Apex Court observed as hereunder:
"Before right of party can be considered to have been defeated on the basis of an alleged admission by him the implication of the statement made by him must be clear and conclusive. There should be no doubt or ambiguity about the alleged admission."
This is a matter dealing with the admissions under the provisions of the Act. But, in the present case, this Court is more concerned with the respective pleadings of the parties and the right of the party to cross-examine the other party under the guise of falling within the meaning of adverse party.
11. It is also pertinent to note that under Order VIII Rule 5 of the Code, every allegation of fact in the plaint if not denied specifically or by necessary implication or said to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability. The mere fact that a vague pleading had been filed praying for dismissal of the suit may not give such a party a right to cross-examine the plaintiff, unless, on the reading of the pleadings as well the Court is satisfied that there are triable issues between the parties and in fact, such party is an adverse party and contesting the litigation. It is no doubt true that in both K. Subba Rao v. Y. Venkatappaiah 's case (supra) and Hussens Hasanali Pulavwala's case (supra) the prayer in the respective written statements were totally in support of the respective plaintiffs praying for decreeing of the suits. However, the mere fact that the ultimate prayer is for the dismissal of the suit without any other substantial contest in the pleading may not in any way alter the case. In any view of the matter, I do not see any illegality or legal infirmity in the impugned order dated 25-4-2002.
12. For the reasons recorded above, the Civil Revision Petition is devoid of merits and the same shall stand dismissed. No order as to costs.