Sanjay Kishan Kaul, J. (Oral)

CM (M) No. 844/2006

Admit.

2. At request of learned Counsel for the petitioner, the matter is taken up for final disposal as the respondents already stand proceeded ex parte on 8.4.2004. It may be noticed that the petition was originally registered as a revision petition, but was subsequently converted into a petition under Article 227 of the Constitution of India as per the order passed on 19.5.2006.

3. A suit was filed for declaration and injunction in respect of an agreement to sell dated 8.5.1981 stated to be executed by the defendants in the suit in favour of Smt. Saroj Bala and Mr. Duli Chand as not valid and binding and restraining the defendant from executing any sale deed in respect of the suit property. The petitioner herein is original defendant No. 7. The defendant moved an application under Order 18 Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code) seeking recall of DW1 for his cross-examination by defendant No. 7 as according to the petitioner the defendants Nos. 1 to 6 on whose behalf defendant No. 1 appeared had started supporting the original plaintiffs. This request has been declined in terms of the impugned order dated 1.7.2002.

4. In order to appreciate the controversy, it is necessary to re-produce the relevant provision:

ORDER XVIII

HEARING OF THE SUIT AND EXAMINATION OF WITNESSES

17. Court may recall and examine witness

The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit. The Trial Court came to the conclusion that it did not find that defendant Nos.1 to 6 were supporting the plaintiffs at that stage and that defendant No. 7 could lead her own independent evidence.

5. Learned Counsel for the petitioner submits that the right of the petitioner to cross examine the defendant No. 1 cannot be shut out and in this behalf has relied upon the judgments of the learned Single Judge of this Court in Mrs. Des Raj Chopra and Others v. Puran Mal and Others, 11 (1975) DLT 63 [LQ/DelHC/1974/198] =AIR 1975 Delhi 109 and of the learned Single Judge of Punjab and Haryana High Court in Sadhu Singh v. Sant Narain Singh Sewadar and Others, AIR 1978 Punjab and Haryana 319. In both the judgments the question of the rights of one of the defendants to cross-examine the witness produced by the other has been examined. It has been held that the trial Court cannot deny a party to litigation the basic right to cross examine a witness and Section 137 and 138 of the Indian Evidence Act, 1872 read together allow the right of cross-examination of a witness to an adverse party. Thus where parties arrayed as defendants in suit take contradictory stand on a relevant and material issue, they shall be adversary to each other and are entitled to exercise their right of cross examining each other.

6. The relevant provisions in this behalf are as under:

137. Examination in chiefThe examination of a witness by the party who calls him shall be called his examination-in-chief.

Cross-examinationThe examination of a witness by the adverse party shall be called his cross examination.

Re-examinationThe examination of a witness, subsequent to the cross- examination by the party who called him, shall be called his re-examination.

138. Order of examinationWitnesses 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-examinationThe 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. On consideration of the submissions made by learned Counsel for the petitioner, I am of the view that the same are meritorious and the trial Court fell into a jurisdictional error in failing to exercise jurisdiction vested in it by law. The right of the petitioner (original defendant No. 7) to cross-examine the witnesses of the remaining defendants could not be shut out and the learned Counsel submits that such a request was in fact made even when DW1 was being examined. Since the same was declined, the formal application was filed in that behalf.

8. The present petition is accordingly allowed and the impugned order dated 1.7.2002 is set aside. The application filed by the petitioner before the Trial Court referred to aforesaid is accordingly allowed. Parties are left to bear their own costs.

CM No. 1763/2002

9. No further directions are called for on this application.

10. The application stands disposed of.