IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2525 of 2004 For Approval and Signature:
HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as to
4 the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= NEW PRAFUL PARK CO OP HOUSING SOCEITY LTD. - Petitioner(s) Versus BACHUBHAI RAMJIBHAI & 2 - Respondent(s) ========================================================= Appearance :
MR NANDLAL THAKKAR for Petitioner(s) : 1, MR GM JOSHI for Respondent(s) : 1, None for Respondent(s) : 2, SERVED BY AFFIX.-(R) for Respondent(s) : 2.2.1 RULE SERVED for Respondent(s) : 2.2.2,2.2.3 MR DIPAK R DAVE for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 01/08/2012 CAV JUDGMENT
1. The Petitioner –original defendant seeks to challenge the order passed by the City Civil Judge, Court No.12, dated 24/3/2003 rejecting the application Exh.141 preferred by the petitioner in Civil Suit No.2693/1995 requesting the Court that as there is no conflict of interest between the original plaintiff and the defendant no.11, the defendant no.11 may not be permitted to cross- examine the plaintiff.
2. Facts shortly stated be thus –
2.1) Petitioner is a Co-op. Housing Society registered under the Gujarat Cooperative Societies Act. The respondent nos. 1 and 2 herein are the plaintiffs who filed Civil Suit No.2693/1995 in the City Civil Court at Ahmedabad praying for declaration that the Sale Deed as regards the Suit property is null and void being without consideration. Declaration has also been prayed for that the plaintiff as well as the defendant no.11 (respondent no.3 herein) are the owners of the suit property and also prayed for injunction restraining the defendant nos.1 to 10 from putting-up any kind of construction on the suit property. In the Suit, mandatory injunction has also been prayed for to remove the construction and hand-over the vacant possession of the suit land to the plaintiffs and defendant no.11. It appears that in the examination-in- chief of the original plaintiff, the plaintiff has deposed that the suit property is jointly owned by him along with defendant no.11 (respondent no.3 herein). It is also the case of the plaintiff that defendant no.11 has 50% share in the suit property. On the other hand defendant no.11 i.e. respondent njo.3 herein, in his examination-in-chief on affidavit, has stated that there is no conflict of interest between him and the plaintiff. He has also stated that in the past he had preferred an application for being transposed as co-plaintiff but the same was rejected at the relevant point of time. He has stated that he accepts the entire claim made by the plaintiff in the Suit. Under such circumstances, it appears that the petitioner herein –original defendant no.9 preferred an application Exh.141 praying that as there is no conflict of interest between the plaintiff and the defendant no.11, defendant no.11 cannot be permitted to cross-examine the plaintiff and under such circumstances other defendants may be permitted to go ahead with the cross-examination of the plaintiff.
2.2) The application was opposed by defendant no.11 i.e. respondent no.3 herein, on the ground that though the plaintiff may have admitted 50% share of defendant no.11 in the suit property, the plaintiffs have alleged that the defendant no.11 has colluded with other defendants. Taking this fact into consideration the learned City Civil Judge vide order dated 24/3/2003 thought fit to reject the application. In the operative part of the order the learned Judge stated that the defendant nos.1 to 10 are at liberty to cross-examine first the plaintiffs or their witnesses U/s.138 of the Indian Evidence Act and thereafter it would be open for defendant no.11 (respondent no.3 herein) to cross-examine the plaintiffs or their witnesses.
3. Feeling aggrieved and dissatisfied with the said order passed by the learned City Civil Judge, the petitioner – original defendant no.9 has preferred this petition under Article-227 of the Constitution.
4. Mr.Nandlal Thakkar, learned Counsel appearing for the petitioner society –original defendant no.9 vehemently submitted that considering the examination-in- chief of the plaintiffs as well as of respondent no.3 herein (defendant no.11), it is apparent that there is no conflict of interest between the two and therefore, the respondentno.3 herein would have no right to cross- examine the plaintiffs.
5. On the other hand Mr.G.M.Joshi– learned Advocate appearing for respondent no.11 opposed this petition submitting that the Court below could not be said to have committed any error, much less an error of law warranting any interference at the end of this Court in exercise of supervisory jurisdiction under Article-227 of the Constitution. Both the learned Advocates, therefore, urged that this petition be rejected.
6. Having heard the learned counsel for the respective parties and having gone through the materials on record, the only question that falls for my consideration in this petition under Article-227 of the Constitution of India is as to whether the Court below committed an error in rejecting the application Exh.141 preferred by the petitioner (Original defendant no.9) in Civil Suit No.2693/1995 preferred by the original plaintiffs (respondent nos.1 and 2).
7. The materials on record, more particularly, the examination-chief of the original plaintiff and the examination-chief of the respondent no.3 (defendant no.11) makes the picture abundantly clear. The plaintiff, in so-many words, has stated that defendant No.11 has 50% share in the suit property and is the co-owner. This position has been accepted by defendant no.11. Defendant no.11, in so-many words has stated in his examination-in- chief that he admits the entire claim of the plaintiffs. I have noticed that the defendant no.11 has further clarified as to why he was not joined as a co-plaintiff but was joined as defendant no.11. The respondent no.3 herein has explained that at the time of institution of the Suit, relations with the original plaintiffs were strained and they were not at talking terms and therefore, the original plaintiffs thought fit to implead respondent no.3 herein as one of the defendants. Except this there was no other reason for the plaintiffs to implead respondent no.3 herein as defendant no.11.
8. I am of the view that the law is well settled. Defendant no.11 who is supporting the plaintiffs has no right to cross-examine the plaintiffs. Sec. 138 of the Evidence Act lays down that 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. Sec. 137 of the Evidence Act also provides that the examination of a witness by the party who calls him shall be called his examination-in-chief and the examination of a witness by the adverse party shall be called his cross-examination. It is, therefore, obvious that only adverse party has the privilege of cross-examination of the party whose interest is opposed to the interest of the party seeking cross-examination. On the pleadings of the parties and the oral evidence it is apparent that the defendant no.11 has no right to cross-examine the plaintiffs. In taking this view, I am supported by two decisions of this Court rendered by the learned Single Judge – (i) Tulsidas Girdharlal & another Vs. Shantilal Karsandas and others – 1985 GLH -934 and (ii) Hussain Hasanali Vs. Shabbirbhai Hasanali – 1981 GLH -230.
9. I am of the view that the Court below committed a serious error in taking the view that respondent no.3 (original defendant no.11) would have a right to cross-
examine the plaintiffs. Just because in the past an application of respondent no.3 for being transposed as a co-plaintiff was rejected, is no ground to come to the conclusion that there is a conflict of interest between the original plaintiffs and the defendant no.11 so as to give right to defendant no.11 to cross-examine the plaintiffs.
10. In the aforesaid view of the matter, I allow this application. The impugned order passed by the learned City Civil Judge, Court No.12, below Exh.141 in Civil Suit No.2693/1995 is set aside. Application -Exh.141 preferred by the petitioner herein in Civil Suit No.2693/1995 is hereby allowed.
11. The Court concerned shall proceed with the hearing of Civil Suit No.2693/1995 and dispose of the same as expeditiously as possible, preferably by 31st May, 2013. Rule made absolute.
(J.B.PARDIWALA, J.) Ashish N.