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HIGH COURT OF JUDICATUTE AT JABALPUR (M.P.)

SINGLE BENCH : HON'BLE JUSTICE NANDITA DUBEY

Writ Petition No. 10710/2017

Akhilesh Singh

Vs.

Krishan Bahadur Singh and ors.

____________________________________________________
Shri Abhishek Singh, learned counsel for the petitioner.
Shri D.D. Bhave, learned counsel for the respondent
No.1.

Whether approved for reporting : Yes

Law laid down :
Significant paragraph numbers : 8 to 12

ORDER
(08.01.2020)

A suit was filed for specific performance of

agreement dated 17.01.2017 and declaring the sale deed

dated 15.03.2013 and 17.04.2013 executed in favour of

defendants No.4 and 5 to be null and void to the extent of

25% share of plaintiff and permanent injunction against the

defendants. The petitioner herein is the original defendant

No.6. He moved an application under Order 18 Rule 17 of

the Code Civil Procedure, 1908, seeking recall of D.W.-1 for

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his cross-examination by defendant No.6, as according to the

petitioner, defendant No.1 (D.W.1) has given the statement

contrary to his affidavit and the same is against the interest

of defendant No.6's claim and would have adverse effect on

his case.

2. The application is opposed by respondent

No.1/plaintiff.

3. The sum and substance of the objection was that

one co-defendant cannot be permitted to cross-examine the

other defendant. It was further objected that the provisions

under Order 18 Rule 17 of the C.P.C. would not be applicable

in the present case.

4. Upon hearing the parties, the trial Court declined

the prayer in terms of the impugned order dated 03.07.2017

mainly for the reason that defendant No.6/petitioner was not

prompt in filing the application and as the aforesaid provision

of the Code is not attracted.

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5. Learned counsel for the petitioner submits that

the right of petitioner to cross-examine the defendant No.1

cannot be shut out specially when defendant No.1 has given

statement adverse to the interest of the petitioner. Reliance

is placed on 2007 AIR (Del) 105 Saroj Bala Vs. Dhanpati

Devi, 2003 AIR (kar) 293 Ennen Castings Pvt. Limited

(In Liquidation): Y.R. Nagabhushan Vs. M.M.

Sunderaseh Ennen Castings Pvt. Limited (In

Liquidation) and 2018 (4) MPLJ 74 Shiv Pratap singh

Tomar Vs. Seema Tomar and others.

6. Per contra learned counsel appearing for

respondent No.1 has contended that in law, a co-defendant

has no such right to cross-examine the witness produced by

other defendant. It is further argued that the provisions of

Order 18 Rule 17 of the C.P.C. is not applicable. Reliance is

placed on (2009) 4 SCC 410 Vadiraj Naggappa Vernekar

(dead) Through LRs. Vs. Sharadchandra Prabhakar

Gogate.
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7. In order to appreciate the controversy, it is

necessary to re-produce the relevant provisions, which reads

as under:-

Order XVIII Rule 17 of Code of Civil Procedure 1908

"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.”

Section 137 of Evidence Act "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.

Section 138 of Evidence Act "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-
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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.

8. In the case of Saroj Bala (supra), the Court has

relied on the decision in the case of AIR 1975 Delhi 109

Mrs. Dev Raj Chopra Vs. Puran Mal and others and AIR

1978 Punjab and Haryana 319 Sandhu Singh Vs. Sant

Narain Singh Sewadar and others, wherein the question

of 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 the

litigation, the basic right to cross-examine a witness and

Sections 137 and 138 of the Indian Evidence Act, 1872 read

together allow the right of cross-examination of a witness to

an adverse party.

9. In the case of Ennen Castings Pvt. Limited

(supra) the Single Bench of Karnataka High Court has held :

“8. The essence of cross-examination is that it is the interrogation

by the advocate of one party of a witness called by his adversary
with the object either to obtain from such witness admissions
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favourable to his cause or to discredit him. Cross-examination is the

most effective of all means for extracting truth and exposing
falsehood. The object is to impeach the accuracy, credibility and
general value of the evidence given in chief to sift the facts already
stated by the witness to detect and expose discrepancies or to elicit
suppressed facts which will support the case of the cross-
examination party. The exercise of his right is justly regarded as one
of the most efficacious tests, which the law has devised for the
discovery of truth. It is beyond any doubt the greatest legal engine
ever invented for the discovery of truth. The right of cross-
examination belongs to an adverse party and parties who do not
hold that position should not be allowed to take part in the cross-
examination.

9. As a general rule, evidence is not legally admissible against a

party, who at the time it was given had no opportunity to cross-
examine the witness or of rebutting their testimony by other
evidence. When two or more persons are tried on the same
indictment and are separately defended any witness called by one of
them may be cross-examined on behalf of the others, if he gives any
testimony to incriminate them. A defendant may cross-examine his
co-defendant who gives evidence or any of his co-defendant's
witnesses, if his co-defendant's interest is hostile to his own.

10. Though there is no specific provision in the Indian Evidence

Act providing for such an opportunity for a defendant-respondent
to cross-examine a co-defendant/co-respondent, however, having
regard to the object and scope of cross examination, it is settled
law that when allegations are made against the party to the
proceedings, before that evidence could be acted upon, that party
should have an ample opportunity to cross-examine the person
who had given the evidence against him. It is only after such an
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opportunity is given, and the witness is cross examined that

evidence becomes admissible. In this regard it is useful to refer to
passages in the law of evidence, by the learned authors on the
subject.”

10. Further, in the case of Shiv Pratap Singh

Tomar (supra) this Court has held :-

“8. Though there is no specific provision in the Indian Evidence

Act providing for such an opportunity for a defendant-respondent
to cross-examine a co-defendant/ co-respondent, however, having
regard to the object and scope of cross-examination, it is settled
law that when allegations are made against the party to the
proceedings, before that evidence could be acted upon, that party
should have an ample opportunity to cross-examine the person
who had given the evidence against him. It is only after such an
opportunity is given, and the witness is cross-examined that
evidence becomes admissible. In this regard it is useful to refer to
passage in the law of evidence, by the learned authors on the
subject. In this regard it is useful to refer to passage in the law of
evidence, by the learned authors on the subject.

Sarkar on Evidence, eight edition p.1141:

"No special provision is made in the Evidence Act for the cross-
examination of the co-accused's or co-defendant's witnesses. But
the procedure to be adopted may be regulated by the well-known
rule that no evidence should be received against one who had no
opportunity of testing it by cross-examination; as it would be
unjust and unsafe not to allow a co-accused or co- defendant to
cross-examine witness called by one whose case was adverse to
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his, or who has given evidence against. If there is no clash of

interest or if nothing has been said against the other party, there
cannot be any right of cross-examination.

"Principles and Digest of the Law of Evidence by M.

Monir, third edition, p.1114 :

"A defendant may cross-examine a co-defendant or any other

witness who has given evidence against him, and reply on such
evidence, though there is no issue joined between them." Phipson
on Evidence, tenth edition, para.1538 :

"A defendant may cross-examine a co-defendant or any other

witness who has given evidence against him, and reply on such
evidence though there is no issue joined between them."

9. Therefore, it is very clear from the aforesaid passages that it is

settled law that no evidence should be received against one who
had no opportunity of testing it by cross-examination ; as it would
be unjust and unsafe not to allow a co-accused or co-defendant to
cross-examine a witness called by one whose case was adverse to
him, or who has given evidence against. If there is no conflict of
interest, such an opportunity need not to given. Therefore, the
condition precedent for giving an opportunity to a defendant-
respondent to cross-examine a co-respondent or a defendant is
either from the pleadings of the parties or in the evidence, there
should exist conflict of the interest between them. Once it is
demonstrated that their interests is not common and there is a
conflict of interest and evidence has been adduced, affecting the
interest of the co-defendant/ co-respondents, then before the Court
could act on that evidence, the person against whom the evidence
is given should have an opportunity to cross-examine the said
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witness, so that ultimately truth emerges on the basis of which the

court can act.”

11. In the case of Vadiraj Naggappa Vernekar

(Supra), plaintiff's application under Order 18 Rule 17 of

C.P.C. for recall of one Sadanand Shet for further

examination urging that some facts necessary for proper

adjudication of the suit has been left out in the affidavit was

dismissed on the ground that recalling of witness to fill up

the lacunae in the evidence discovered on cross-examination

is not permissible. Hence, the same is not applicable in the

present case.

12. In view of the aforestated legal position, it is clear

that no evidence should be received against one who had no

opportunity of testing it by cross-examination as it would be

unjust and unsafe not to allow a co-accused or co-defendant

to cross-examine a witness call by one whose case was

adverse to him or who had given evidence against in the

present case.

13. A perusal of deposition of D.W.-1 reveals that

defendant No.1 has deposed against the interest of

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defendant No.6. In his deposition, clear allegations has been

made by D.W.-1 against defendant No.6. It is clear that

there is conflict of interest between defendant No.1 and

defendant No.6, hence an opportunity to cross-examine

D.W.-1 is required to be given, so that the ultimate truth may

emerge on the basis of which the Court may reach to a

decision.

14. In view of the facts and circumstances, I find no

substance in the contention of respondent No.1 that

co-defendant has no right to cross-examine the other

defendant.

15. The impugned order dated 03.07.2017 passed in

C.S. No.01-A/2014 is hereby quashed. The trial Court is

directed to permit the defendant No.6/petitioner to cross-

examine defendant No.1.

16. Petition stands allowed. No order as to costs.

(Nandita Dubey)
Judge
gn

Digitally signed by GEETHA

NAIR
Date: 2020.01.14 09:58:56
+05'30'