V.K. Shali, J.@mdash17 years have gone by and still the Court is faced with the question as to which of the Defendants should cross examine the
PW-1, the only witness whose examination-in-chief has been completed. In order to appreciate the point in issue, it is necessary to give brief facts
of the case.
2. A suit for partition came to be filed by the plaintiff against her brother (D-1), sisters (D-2 to 4) and husband of Defendant No. 2 (D-5). The
centre of controversy was the properties left by one Lt. Col. Gurpuran Singh, father of the plaintiff and the Defendants No. 1 to 4. He is stated to
have died at Delhi on 13th April, 1992. From the list of properties, Late Lt. Col. Gurpuran Singh seemed to be a man of means as he even owned
a Rolls Royce car. The claim of the plaintiff was that she has 1/5th share in the estate of the Late Lt. Col. Gurpuran Singh on the basis of the Will
dated 4th March, 1992 purported to have been made by him.
3. The Defendant No. 3 filed her written statement and had not specifically denied the execution of the Will dated 4th March, 1992 purported to
have been made by her father. However, she took the stand that one of the properties, which was huge agricultural land, was given to her by the
deceased father vide Will dated 29th January, 1982. Thus, the Defendant No. 3 had partially supported the case of the plaintiff except that she
wanted the agricultural land be taken away from the arena of controversy.
4. The Defendant No. 4 has also admitted the Will dated 4th March, 1992 as the basis of partition.
5. The Defendant No. 1 has denied the execution of both the Wills dated 29th January, 1982 in favour of Defendant No. 3 or the Will dated 4th
March, 1992 on the basis of which the plaintiff laid her claim. It may be pertinent here to mention that Defendant No. 1 is the real brother of the
plaintiff. The suit itself was filed in the year 1993 and issues have been framed on 24th July, 2008. Affidavit of PW-1, the sole witness has been
tendered in examination and the witness was to be cross examined by the Defendants at which stage the controversy arose as to who is to cross
examine the said witness first.
6. The case of the Defendant No. 1 was that the Defendant No. 3 and other Defendants who are supporting the case of the plaintiff either fully or
partially must be directed to cross examine the witness first and thereafter the Defendant No. 1 will cross examine the said witness. Sh. J.K. Seth,
learned senior counsel on behalf of the Defendant No. 1 had contended that in case the aforesaid order is not followed, it would only give an
opportunity to the Defendants No. 2 to 4 to fill up the lacunae which may be brought about by the cross examination of Defendant No. 1 and thus
would prejudicially affect the case of the Defendant No. 1 whose interest is totally adverse to that of the plaintiff. The learned senior counsel in
support of his contention has relied on judgments titled Shah Hiralal Himatlal and Others Vs. M.G. Pathak and Others, , M. Hymavathi and
Another Vs. M. Koteswararao and Others, and Sunil Chhatrapal Kedar Vs. Y.S. Bagde and Another, .
7. The aforesaid three authorities which have been cited by the learned senior counsel essentially support the contention that the Defendant who is
supporting the case of the plaintiff partially or fully must be directed to cross examine the witness of the plaintiff first in comparison to a Defendant
who is contesting the claim of the plaintiff.
8. Mr. Alag, learned Counsel for Defendant No. 3 has refuted this contention of the learned senior counsel by contending that the Defendant No. 3
is not supporting the case of the plaintiff either partially or fully which may entail passing of a direction to Defendant No. 3 to cross examine the
plaintiff first in comparison to the Defendant No. 1. The learned Counsel had drawn the attention of the Court to his written statement in order to
show that one of the properties in respect of which partition is sought by the plaintiff is an agricultural land situated in Punjab, while as the
Defendant No. 3 is contesting the claim of the plaintiff with regard to this property on the ground that the said property has already been given by
the late father of the parties to the Defendant No. 3 and she has also mutated the same in the Revenue record in her own name. The learned
Counsel contended that by such an averment, having been made by Defendant No. 3 in written statement, it could not be said that Defendant No.
3 is either admitting the claim of the plaintiff based on a Will of 1992 either partially or fully and therefore the order of cross examination must
follow the same order in which they are shown as Defendants.
9. I have heard Mr. S.K. Sharma, the learned Counsel for the plaintiff, Mr. J.K. Seth, learned senior counsel for Defendant No. 1 as well as the
learned Counsel, Mr. I.S. Alag on behalf of the Defendant No. 3. I have also gone through the record as well as the judgments.
10. None of the parties has cited any judgment of the Apex Court on the point which is raised in the instant case, nor have I been able to lay my
hand on any such authority. Under these circumstances, one has to fall back on the judgments which have been cited by the learned Counsel for
the plaintiff. Out of the three judgments which have been cited by the learned Counsel for Defendant No. 1, the judgment in Shah Hiralal Himatlal''s
case (supra) is passed by the learned Single Judge of the Gujarat High Court way back in 1964 wherein it has been held as under:
(4) So far as the Defendants go, the question which of the Defendants should begin has not been dealt with in Order 18, Civil Procedure Code.
But on general principle, if any of the Defendants supports the plaintiff in whole or in part, then he should address the Court and lead his evidence
first before the other Defendants who do not support wholly or in part the plaintiff''s case. The order in which Defendants lead evidence becomes
important only when some of them support the case of the plaintiffs in whole or in part while the others do not. If all the Defendants completely
oppose the plaintiff''s case, then the question of order of leading evidence amongst the Defendants is immaterial. It is only when the Defendants are
divided into two groups, one group consisting of the Defendants supporting the plaintiff''s case in part and the other group consisting of Defendants,
who do not support the plaintiff''s case in any part that the question of order of leading evidence becomes important. In such cases among
Defendants the order of leading evidence should be as follows:
(1) Those Defendants who fully support the case of the plaintiff.
(2) Those Defendants who partly support the case of the plaintiff.
(3) Those Defendants who do not support the case of the plaintiff in any part.
A perusal of the aforesaid para of the judgment would show that the said judgment has categorized the Defendants into three essential categories -
one who fully support the case of the plaintiff, secondly the Defendants who partially support the case of the plaintiff and thirdly those who do not
support the case of the plaintiff or any part. It has been held that they will cross examine the witnesses in the same order. The said judgment in the
case of Shah Hiralal Himatlal''s case (supra) has been followed by Andhra Pradesh High Court in Hymavathi''s case (supra). In 2004, Sunil
Chhatrapal''s case (supra), the issue was examined by the Bombay High Court again where the reference was made to the two judgments of
Gujarat and the Andhra Pradesh High Courts and after discussing both these judgments, the learned Single Judge of Bombay High Court has also
arrived at the same conclusion that the party who is fully or partially supporting the case of the plaintiff must cross examine the witness of the
plaintiff in the first instance as against the party who is contesting the claim of the plaintiff. Reference has also been made to Section 137 of the
Evidence Act which lays down that when the witness is examined by way of examination-in-chief, then he will be cross examined by the ''adverse''
party. It has been concluded by the Bombay High Court that a party who is supporting the case of the plaintiff either fully or partially cannot be
said to be an ''adverse'' party in the same sense in which a party is contesting the claim of the plaintiff. It has been observed that in case this order is
not followed for the purpose of cross examination, then any lacunae which is left in the cross examination by the contesting party will be filled up, in
the cross examination conducted by the Defendants, who are partially or fully supporting the case of the plaintiff. This will be prejudicial to the
interest of the contesting party and therefore it has supported the view of Gujarat High Court as well as the Andhra Pradesh High Court.
11. I have gone through the aforesaid three authorities and I find myself to be in agreement with the reasoning given by the Bombay High Court as
well as the Gujarat High Court, so far as the order in which the cross examination of the plaintiff''s witnesses is to be conducted. The reason for
such an order is not far to seek. The Hiralal''s case has rightly classified the Defendants into three categories - firstly those who are supporting the
case of the plaintiff fully, secondly those who are partially supporting the case of the plaintiff and thirdly those who are not at all supporting the case
of the plaintiff. The classification of the Defendants in the aforesaid three categories must regulate the cross examination of the plaintiff''s witness. It
may be pertinent here to mention that Section 137 of the Evidence Act also lays down that when a witness enters into a witness box, he will be first
subjected to examination-in-chief, then cross examination and thereafter re-examination.
12. The Evidence Act clearly lays down that the scope of cross examination is much wider as it permits a party to cross-examine the witness even
regarding his character in order to impeach his credibility. Leading questions which are suggestive of answer can also be asked to the witness.
Therefore, in such a contingency where the scope of cross examination is much wider and gives better leeway to the Defendant, it cannot be
permitted by a party who either fully or partially supports the case of the plaintiff to cross examine witness after the contesting party has done. If
this is permitted to be done, then it will greatly prejudice the rights of the parties who are contesting the claim of the plaintiff. I therefore find myself
in agreement with the judgment of Hiralal''s case that the party which supports the case of the plaintiff partially or fully must cross examine the
witness of the plaintiff first. Accordingly, so far as the facts of the present case are concerned, the Defendants No. 3 and 4 are supporting the case
of the plaintiff both partially and fully respectively and therefore they must first cross examine the witness of the plaintiff first rather than the
Defendant No. 1 who is contesting the claim of the plaintiff. I accordingly allow the contention of the Defendant No. 1 directing Defendant No. 3
and other Defendants to cross examine the plaintiff''s witness in the first instance before the Defendant No. 1 undertakes the cross examination.
However, expression of any opinion hereinbefore shall not be deemed to be an expression on the merits of the case.
CS(OS) No. 642/1993
List the matter before learned Joint Registrar on 01.12.2010 for fixing up dates of trial.
