Indian Kanoon - Search engine for Indian Law

Delhi High Court

Ajit Singh Gill & Ors. vs Arvind Khosla & Anr on 15 July, 2008

Author: Rajiv Sahai Endlaw

Bench: Rajiv Sahai Endlaw

*              IN THE HIGH COURT OF DELHI AT NEW DELHI


+                             IA NO.5926/08 in Suit no. CS(OS)234/97
%                                  Date of decision : 15.07.2008


Ajit Singh Gill & Ors.               ....... Plaintiff
                                     Through: Mr Vaibhav Sharma,Advocate

                                       Versus

Arvind Khosla & Anr                  ........ Defendant
                                     Through : Mr. Sudhir Luthra, Advocate
                                     for Defendant No.1.
                                     Mr. G.L. Rawal, Sr. Advocate with Mr
                                     Kuljeet Rawal, Advocate for Defendant
                                     no.2.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW


     1. Whether reporters of Local papers may
        be allowed to see the judgment?

     2. To be referred to the reporter or not?

     3. Whether the judgment should be reported
        in the Digest?


RAJIV SAHAI ENDLAW, J (ORAL)

1. The defendant no.1 has filed this application for direction that the defendant no.2 be not permitted to cross examine the plaintiff no.1 appearing as PW1 and who has already been cross examined by defendant no.1. The defendant no.2 has opposed this application and sought right to cross examine PW1.

2. The case of the plaintiffs as per the amended plaint is that the defendants no.1 and 2 were the owners of property no. 324, Sant Nagar, East of Kailash, New Delhi; that there were huge arrears of property tax with respect to the said property; that the defendant no.2 had apprised defendant no.1 of the arrears of property tax but the IA no.5926/08 in CS(OS) no. 234/97 Page no. 1 of 9 defendant no.1 chose to ignore the same; that the defendant no.1 asked the defendant no.2 to explore sale of the property for clearance of the said dues; that the defendant no.2 offered the said property for sale to the plaintiffs; that the defendant no.1 agreed to sell his share of the property to the plaintiffs and informed the defendant no.2 that the defendant no.2 may execute the sale deed on behalf of the defendant no.1 also as the defendant no.2 had the power of attorney executed by the defendant no.1 in her favour for affecting such sale; that the defendant no.2 sold the property to the plaintiffs and the sale consideration in equal amounts was paid to the defendants no. 1 & 2. It is further the case of the plaintiffs that the plaintiffs were thereafter in possession of the property but the defendant no.1 started disturbing the possession of the plaintiffs of the said property and also placed his locks over the locks of the plaintiffs on the said property. The plaintiffs have claimed the relief of permanent injunction against the defendant no.1 for restraining him from disturbing the plaintiffs possession of the property and have also claimed the relief of the possession with respect to the Ist, 2nd and 3rd floor of the property from the defendant no.1 only.

3. The defendant no.1 contested the suit and denied that the defendant no.2 was authorized to sell the property on his behalf and further denied that the defendant no.2 could sell the defendant no.1's share of the property.

4. The defendant no.2 filed a written statement to the plaint as originally filed. In the said written statement, the defendant no.2 stated that the plaint did not disclose any cause of action or relief against her and as such the defendant no.2 had been wrongly IA no.5926/08 in CS(OS) no. 234/97 Page no. 2 of 9 impleaded as a party and the name of defendant no.2 is liable to be struck off from the array of defendants. The defendant no.2 otherwise admitted the case of the plaintiffs. No written statement was filed by the defendant no.2 to the amended plaint i.e. after the relief for possession was added. The defendant no.1 has also filed a counter claim of declaration in his favour and against the plaintiffs and defendant no.2 to the effect that the sale deeds of the property to the extent executed by the defendant no.2 on behalf of the defendant no.1 pertaining to half share of defendant no.1 in the property were collusive, fraudulent, illegal, nonest and void. The defendant no.2 filed a written statement to said counter claim.

5. The issues were framed in the suit on 24.11.2006 inter-alia to the effect whether defendant no.2 was authorized and competent to execute the sale on behalf of defendant no.1 and as to whether the plaintiffs were entitled to recover the Ist, 2nd and 3rd floor of the property. Issue was also framed on the counter claim of defendant no.1 as to whether the defendant no.2 is entitled to the declaration claimed in the counter claim.

6. The plaintiff no.1 tendered his affidavit by way of the examination in chief as PW1. Counsel for the defendant no.1 commenced cross examination of PW1. The cross examination of PW1 was deferred from time to time and in between PW2, PW3 and PW4 being official witnesses were also examined by the plaintiffs. PW2, PW3 and PW4 were cross examined by the counsel for the defendant no.1 and the record reveals that opportunity of cross examination of said witnesses was given to the counsel for the defendant no.2 also, though no substantial cross examination of these IA no.5926/08 in CS(OS) no. 234/97 Page no. 3 of 9 witnesses was done on behalf of the defendant No.2. Adjournment were sought by the counsel for the defendant no.2 for cross examination of PW1 after the defendant No.1 closed cross examination of plaintiff. It was thereafter that the present application came to be filed by the defendant no.1 objecting to the right of defendant no.2 to cross examine the PW1. The application was heard in part on 23.5.2008. Senior Counsel for defendant no.2 submitted that the contention had been raised by the plaintiff that the defendant no.2 was in collusion with the defendant no.1 and for this reason the defendant no.2 wanted to ask questions only on this aspect to the plaintiff. The counsel for defendant no.2 was permitted to give the questions which were sought to be put to the plaintiff in cross examination. The defendant no.2 has filed the questions he intends to put in cross examination of the plaintiff, inter-alia, to the effect as to on whose instruction the transaction was entered into, on whose instruction the plaintiffs gave the consideration money, how the security was adjusted, whether plaintiff no.1 had any arrears of rent, whether the original documents were delivered to the plaintiffs and as to when the plaintiffs had used the address of defendant no.2.

7. The counsel for defendant no.1 has in support of the application referred to the sections 137 & 138 of the Indian Evidence Act and relied upon the judgment in Karumanchi Subba Rao v Yarlagadda AIR 1978 Andhra Pradesh 193 to canvass that only an adversary is entitled to cross examine. He has submitted that the defendant no.2 is not an adversary of the plaintiff and has no right to cross examine the plaintiff. It is further submitted that the cross examination of the plaintiff by the defendant no.2 after the cross examination by the IA no.5926/08 in CS(OS) no. 234/97 Page no. 4 of 9 defendant no.1 would nullify the cross examination affected by the defendant no.1.

8. The counsel for the defendant No.2 on the contrary has argued that the defendant no.2 has filed the written statement to the counter claim of the defendant no.1 and if it is ultimately held that the defendant no.2 was not authorized by the defendant no.1 to sell the property, consequences thereof will fall on the defendant no.2.

9. During the course of hearing, a question also arose as to whether the defendant no.1 or the defendant no.2 should lead the evidence first, after the plaintiff's evidence is closed. It was the submission of the defendant no.1 that since the defendant no.2 is supporting the case of the plaintiff, the defendant no.2 should lead the evidence first. Per-contra the defendant no.2 argued that the defendant no.1 had made counter claim to which written statement had been filed by the defendant no.2 and for this reason the defendant no.1 should lead the evidence first.

10. These are the questions which often arise in course of trial. I have perused the affidavit by way of examination in chief as well as cross examination by the defendant no.1 of PW1. I find extensive cross examination by the defendant no.1 of the plaintiff on the aspects on which the defendant no.2 is now seeking to put questions to PW1. Undoubtedly, if defendant no.2 is permitted to put the said question to PW1, PW1 would have a second chance to reply/to give an explanation. The apprehension of the defendant no.1 that his cross examination of the plaintiff would thereby be nullified cannot be said to be unfounded. If the defendant No.2 is now permitted to cross examine the PW1, it would give the plaintiffs and defendant No.2 IA no.5926/08 in CS(OS) no. 234/97 Page no. 5 of 9 whose case is the same, an unfair advantage over the defendant No.1 in the trial. The defendant No.2 did not seek any right to cross examine the PW1 till the conclusion of cross examination by the defendant No.1.

11. Section 137 of Evidence Act describes cross examination as " The examination of a witness by "adverse" party." It has been held in State of West Bengal Vs. Rama Devi, AIR 2002 Calcutta 235 that in the scheme of the Evidence Act, there is no provision for friendly cross examination by the proforma defendant. Similarly, in Hussens Hasanall Pulavwala Vs. Sabbirbhai Hasanali Pulavwala and Ors. AIR 1981 Gujarat 190, also it was held that in order to cross examine a witness, it must be shown that the party seeking cross examination is an adverse party. Merely because a party is shown as defendant in the cause title of the plaintiff, that party cannot be styled as an adverse unless it is further shown that the party is a contesting party in the sense that he disputes the case put up by the plaintiff in the plaint. If a party accepts the plaintiff's case, as defendant no.2 has done in the present case, there is no contest between the plaintiff and that party and such defendant cannot be styled as an adverse party and would, therefore not be entitled to cross examine the plaintiff. Recently the same view was taken in Vijaya v S Saraswathy (MANU/TN/0246/2008). Therefore in the scheme of the Evidence Act, the defendant no.2 being not an adversary of the plaintiff is not entitled to cross examine PW1. The submission of the Senior Counsel for the defendant no.2 on 23.5.2008 that the plaintiff had stated that the defendant no.2 was in collusion with defendant no.1 has not been urged now and the questions for cross examination IA no.5926/08 in CS(OS) no. 234/97 Page no. 6 of 9 submitted now are also not on those lines.

12. The reasoning now given by the defendant no.2 for cross examination of PW1 is fallacious. Merely because defendant no.1 has filed a counter claim and to which the defendant no.2 has filed a written statement would still not make the plaintiff/PW1 who is sought to be cross examined an adversary of the defendant no.2 entitling the defendant no.2 to cross examine PW1. I find that a similar view had been taken as far back as in Jarwa Bai Vs. Pitambar Nilambar Shah AIR 1917 Calcutta 264 by three Hon'ble Judges of that Court. A Division Bench in Moti Ram Narwari Vs. Lalit Mohan Ghose, AIR 1920 Patna 94 also held that the usual practice in cases where some of the defendants support the plaintiff's case and others oppose, is to order that those who support the plaintiff's case should cross examine the plaintiff's witnesses first, if they desire to do so and to call their evidence and address the court before the defendants, who oppose the plaintiff's case do so. It was held that any other practice would be inconvenient and might work an injustice to those defendants who oppose the plaintiff's case; in the first place after the opposing defendants have cross examined the plaintiff's witnesses, the other defendants who support the plaintiff's case would be entitled to cross examine and by leading questions possibly elicit evidence from the witnesses, which had not been elicited in the examination in chief and about which the opposing defendants had no opportunity of cross examining. It was further held that even if a further opportunity of cross examination was given to the contesting defendants ( as was suggested by the Senior Counsel for the defendant no.2 in the present case also ) it would be a cumbersome process would prolong the IA no.5926/08 in CS(OS) no. 234/97 Page no. 7 of 9 proceedings.

13. The other reasoning propounded by defendant no.2 for cross examination of the PW1 is also not correct. The plaintiffs have not claimed any alternate relief against the defendant no.2; merely because there may be consequences in the event of it being held in this suit that the defendant no.2 was not entitled to sell the property on behalf of the defendant no1, would still not entitle the defendant no.2 to cross examine the plaintiff. It is a settled principle that a party who has had no right of cross examination is not affected by the examination in chief. The filing of the counter claim by the defendant no.1 and written statement thereto by the defendant no.2 also has no bearing on the cross examination by defendant no.2 of the plaintiff. That merely entitles the defendant no.2 to cross examine the defendant no.1. This right of cross examination between co- defendants is no longer resintigra. Besides the judgments of this court in Des Raj Chopra Vs. Pooran Mal, 1975(XI)DLT63 and Saroj Bala Vs. Dhanpati Devi 134(2006) DLT 219, other courts also have taken the same view in Sadhu Singh Vs. Sant Narain, AIR 1978 P & H 319 and Ennen Castings Pvt. Ltd. Vs. M.M. Sundaresh, AIR 2003, Karnataka 293.

14. The application of the defendant no.1 is, therefore, allowed. The defendant no.2 is not entitled to cross examine PW1. The cross examination of PW1 by the counsel for the defendant no.1 stands concluded. The counsel for the plaintiff stated that he does not want to examine any other witness. The plaintiff's evidence as such stands closed.

                                               RAJIV SAHAI ENDLAW
                                                    (JUDGE)

July 15, 2008
k




IA no.5926/08 in CS(OS) no. 234/97                          Page no. 9 of 9