Calcutta High Court
State Of West Bengal vs Smt. Rama Devi And Ors. on 24 May, 2002
Equivalent citations: AIR2002CAL235, AIR 2002 CALCUTTA 235, (2003) 1 CIVILCOURTC 48
Author: Sengupta
Bench: Sengupta
ORDER Sengupta, J.
1. In this matter the plaintiff has concluded examination-in-chief, the defendant No. 3, who is pro forma defendant being represented by Mr. Das, Senior Counsel, wants to cross examine friendly the witness of the plaintiff.
2. Mr. Hirak Mitra, Learned Senior Counsel appearing with Mr. R. Sharma, seriously objects to such examination of the plaintiff. He has drawn my attention to my order dated 25-4-2001 and submits that this question of right of examining the witness of the plaintiff by the defendant No. 3 has to be decided first to which I agree. The decision is as follows :--
Mr. Sharma with the leave of Mr. Mitra submits that under the Evidence Act the witness can be examined by the party who has called him and by the adversary party and there is no contemplation of further examination by any of the parties in the Evidence Act 1872. His further contention is that the defendant No. 3 has not filed any written statement to put his case, rather he is depending upon result of the suit in favour of the plaintiff. In the guise of friendly cross-examination, a further examination-in-chief cannot be allowed to be done by the pro forma defendant. If it is allowed, then whatever lacuna crept in the examination of the plaintiff of its witness, the same shall be allowed to be filed in illegally and/or wrongly, He further submits that the pro forma defendant cannot have any right to examine any of the witness of the plaintiff and in support of his submission he has relied on a decision of the Gujarat High Court, . He draws my attention to paragraphs 3 & 7 of the above authority. Moreover, the alleged right of the pro forma defendant is a very remote and he cannot have any stake in the subject matter of the suit and as such an application for striking out of the defendant No. 3 from the array of the party has been taken out and the same is kept pending for hearing. He has also drawn my attention to my another Judgment and Order dated 24-4-2001, whereby I refused to transpose the defendant No. 3 in the capacity of the plaintiff.
4. Mr. P. K. Ghosh, ld Sr. Counsel appearing for the plaintiff submits that the defendant No. 3 has sufficient interest in the subject matter of the suit as his client has applied for granting lease of the tea garden, which is subject matter of the suit and, therefore, he should be allowed to examine his witness as it is necessary for the purpose of effective adjudication of the dispute.
5. Mr. Das, submits that his client has applied for grant of lease in respect of the self-same tea garden which is the subject matter of the suit. In the event the suit is decreed then his client will get lease for which an application has been made and the same is kept pending. This application cannot be disposed of in view of the pendency of the suit and for the existence of the decree and the conveyance which are challenged in the suit.
6. Moreover, he has drawn my attention to the various orders of the Supreme Court whereby the client's right, and interest are said to have been recognised so much so he can participate in the hearing of the suit. Unless his client is allowed to examine the witnesses of both the parties, his right as well as the interest cannot be established or protected by this Court.
7. Having heard the respective contentions of the learned Counsels, I am to decide whether pro forma defendant, who has sided with the plaintiff, can be allowed to examine any of the witnesses either friendly or adversely or not. It is to place on record that Mr. Das's client has not filed any written statement admittedly. Therefore, this Court is unable to understand his client's right, and interest in the suit. His client is depending on establishment of right, title and interest of the plaintiff alone and as such he is supporting the case of the plaintiff. Mr. Das of course has drawn my attention to the Issue No. 4, which reads as follows :
"4. Is the defendant No. 3 liable to be struck out from the array of the defendant as alleged by the defendants No. 1 and 2 or not."
8. Before I decide the question as to whether Mr. Das's client has any right to examine or cross-examine any of the witnesses in the suit or to bring his own witness on the strength of issue No. 4 already settled, it is appropriate for me to dilate upon the provision of law as to who has right to examine witness and further why examination of witness is necessary.
9. Examination of witness is necessary order to prove the case of the respective parties and to disprove the case of adversary party to the suit. The plaintiff brings his own witness to establish his claim, and unless there is pleading, question of proof does not arise, therefore, any party to the suit who wants to establish his own right or demolish the case of the adversary by filing a pleading can always bring their evidences as a matter of right either by citing witness or producing documents, as it appears from the scheme of chapter X of Indian Evidence Act 1872. So I quote the relevant section of the above chapter.
"137.
Examination-in-chief.
The examination of a witness by the party who calls him shall be called his examination-in-chief.
Cross-examination.
The examination of a witness by the adverse party shall be called his cross-examination.
Re-examination.
The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.
Order of examination
138. Witness 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."
10. Therefore, upon perusal of the scheme of the Section 137 and 138 it is clear that the right of examining the witness confined only to a party who has brought action and the adversary party. Moreover, the examination of the witness must relate to relevant facts in the issue raised in the suit.
11. In order to decide a suit the court has to answer varieties of issues that may be raised. The whole object for bringing witness in an action is to adduce oral evidence. Under Section 5 of the Indian Evidence Act 1872, evidence is given of the existence or non existence of every fact-in-issue and of such other facts as are held to be relevant under chapter II of the Act and of no others.
12. In this suit plaintiff has brought action to question a decree passed by this Court in a suit previously filed by the predecessor-in-interest of the defendant No. 1 (a)(b)(c). The pro forma defendant in this suit was not a party nor had any interest in the controversy and/or subject matter therein. Alleged right of Mr. Das's Client has arisen long after passing of this decree, which has been challenged here. So, Mr. Das's client has no right to establish nor be affected in this suit so as to become adversary. That is why Mr. Das's client failed to transpose itself to the category of the plaintiff. When this question was raised I decided against Mr. Das's client. I am told no appeal was preferred against the aforesaid order.
13. Admittedly, Mr. Das's client is not an adversary to the plaintiff, so he cannot examine witness of the plaintiff. In the scheme of the Evidence Act there is no provision for friendly cross-examination by the pro forma defendant. The proforma defendant, in my view has to play a role akin to a witness and it cannot have any stake in the result of the hearing of the suit. Its right by any stretch of imagination will not be affected in any manner. Mr. Sharma has appropriately placed judgment of Gujarat High Court . This judgment of Justice Ahmadi (as His Lordship then was) in paragraph 3 has explained amongst other that, "in order to cross-examination a witness it must be shown that the party seeking cross-examination is an 'adverse party'. Merely because a party is shown as a defendant in the cause title of the plaintiff, that party cannot be styled as an adverse party, unless it is further shown that the party is an contesting party in the sense that he disputes the case put up by the plaintiff in the plaint. If a party accepts the plaintiffs case, there is no contest between the plaintiff and that party and such a defendant cannot be styled as an 'adverse party' and would, therefore, not be entitled to cross examine the plaintiff. I respectfully adopt and accept observation of Justice Ahmadi, I hold in this case Mr. Das's client has no right to examine either adversely or friendly the witness of the plaintiff, nor his client has any right to bring his own witness and cross-examine adversely the witness which might be produced by the defendant, as his client has put forward any case by filing written statement.
14. In this case the relevant fact would be whether the decree passed by this Court was obtained practising fraud upon the Court or not and for that matter whether conveyance following the decree is liable to be cancelled or not. I am unable to accept the submission or Mr. Das that because of issue No. 4 it has become necessary for his client to examine the witness of the plaintiff. The aforesaid issue does not relate to the relevant fact in this case, this issue is relatable to the presence of Mr. Das's client for effective adjudication of the suit. No amount of evidence, either oral or documentary, is required to decide the above issue.
Under those circumstances, I hold that Mr. Das's client has no right to examine any of the witnesses in this proceeding.