IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 8TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 30172 OF 2017(GM-CPC) BETWEEN:
SRI. K SHIVASHANKAR, S/O B KARIGOWDA, AGED ABOUT 54 YEARS, RESIDING AT NO. 1027, NISARGA APARTMENT, JAYALAKSHMI ROAD, CHAMARAJA MOHALLA, MYSURU – 570 024.
(BY SRI. K R KRISHNA MURHTY, ADVOCATE) AND:
1. SRI. VENKATEGOWDA, S/O LATE RANGEGOWDA @ YETTAPPA, AGED ABOUT 71 YEARS, 2. SRI. SRINIVASA, S/O LATE RANGEGOWDA @ YETTAPPA, AGED ABOUT 67 YEARS, 3. SRI. RAMESH, S/O LATE RANGEGOWDA @ YETTAPPA, AGED ABOUT 67 YEARS 4. SRI. V. VENKATESH, S/O VENKATEGOWDA, AGED ABOUT 67 YEARS, 5. SRI. V. MANJU, S/O LATE RANGEGOWDA @ YETTAPPA, AGED ABOUT 67 YEARS, RESPONDENT NOS. 1 TO 5 ARE RESIDING AT YARAGANAHALLI GRAMA, MYSURU TALUK – 570 011.
… PETITIONER 6. SRI. PRAKASH, S/O LATE PUTTANNAIAH, AGED ABOUT 44 YEARS, RESIDING AT NO.224, “NELE NILAYA”, 23RD MAIN, 5TH CROSS, J P NAGAR, 5TH PHASE, BENGALURU – 560 078.
… RESPONDENTS (BY SRI. G K KRISHAN MURTHY, ADVOCATE FOR SRI. VINAY M, ADVOCATE FOR R1 TO 5;
SRI. UDITA RAMESH, ADVOCATE FOR R6) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 15.06.2017 PASSED ON I.A.NO. 19 BY THE I ADDL. SENIOR CIVIL JUDGE, MYSURU IN O.S.NO.685/2011 VIDE ANNEX-A AND TO ALLOW THE I.A.NO.19 FILED BY THE PETITIONER/DEFENDANT NO.6 AT ANNEX-G.
THIS PETITION COMING ON FOR PRELIMINMARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioner being the 6th defendant in a declaratory suit filed by the 6th respondent herein in O.S.No.685/2011, is invoking the writ jurisdiction of this court for assailing the order dated 15.06.2017, a copy whereof is at Annexure-A whereby, the learned Addl. Senior Civil Judge, Mysuru has rejected his application in I.A.No.19 filed under Section 138 of the Indian Evidence Act, 1872 r/w Section 151 of CPC, 1908 seeking interdiction of his cross- examination by the respondent Nos.1 to 5 herein.
2. Having heard the learned counsel for the petitioner and the learned Senior Advocate for the contesting respondents, and having perused the Petition Papers, this court grants indulgence in the matter for the following reasons:
(a) Section 137 of the Indian Evidence Act, 1872 provides for examination-in-chief, cross-examination and re-examination of witnesses; it gives, inter alia, a right of cross-examination in favour of the ‘adverse party’, and such an adverse party can be a co-defendant, is true, as contended by the learned Senior Advocate Mr.Krishna Murthy who places reliance on a decision of a Co-ordinate Bench of this Court in the case of Sri.Mohammed Ziaulla Vs. Ms. Sorgra Begum, ILR 1997 KAR 1328; the provisions of Sections 137 & 138 of the Act, inter alia giving a right of cross-examination are status-neutral of the parties in the array of proceedings; in other words to avail this right, what is to be seen is not whether the party sought to be cross-examined is a plaintiff or defendant, but what is to be focused is: whether such a party regardless of its status has an adverse interest in the suit?
b) however, the contesting respondents herein though being co-defendants of the petitioner, cannot be termed as an “adverse party” within the meaning of Section 137, since they being the defendants in petitioner’s specific performance suit in O.S.No.771/2005, have suffered a judgment & decree in respect of the very same property which they had sold to the 6th respondent herein not only pendente lite but also in gross violation of order restraining alienation; adverse parties they were, in petitioner’s suit is true; but an argument that they have an adverse interest even in the present suit of 6th respondent qua the petitioner cannot be accepted without straining the text, context & intent of Sections 137 & 138 of the Act;
c) in C.D. FIELD’S LAW OF EVIDENCE, CENTENARY EDITION, Law Publishers (India) Pvt. Ltd, at page 4771, the law is stated as under:
“4. Statutory right of cross-examination.- A reading of Sec.137, Evidence Act, indicates that the right to cross-examine the witness is conferred by the statute upon the person concerned only when he has an interest adverse to the one who is proposed to be cross- examined…..”
The contesting respondents who have suffered already a judgment & decree whereby the petitioner became the owner of the subject property by no stretch of imagination, can be held to have a “conflicting interest” qua the petitioner in the subsequent declaratory suit of the 6th respondent, merely because they too happen to be the defendants arguably sailing with the respondent - plaintiff;
the interest of a predecessor in title logically cannot be termed as a conflicting interest qua the successor in title; permitting them to cross-examine the petitioner is inconsistent with the pith & substance of the judgment & decree which they have suffered at the hands of the petitioner; an argument to the contrary strikes at reason & justice;
d) in the case of Mohammed Ziaulla supra, relied upon by the contesting respondents, the facts were different from what they are in the present suit inasmuch as there was no prior decree concerning the very same subject matter between the parties, unlike in this case; therefore, the Co-ordinate Bench held that the co- defendants in that suit being the “adverse parties” had the right of cross-examination; similarly, in the other case, i.e., P.SATISH PAI VS. B.YESHWANTH SHENOY, ILR 2010 KAR 4122, the court proceeded on the premises that there was a “conflict of interests” between the defendants inter se in the said suit and therefore, conceded the right of cross-examination to a co-defendant who was apparently an adverse party, which is not the case here; in view of essential difference in the fact matrix, much milk cannot be derived by the contesting respondents from these decisions;
(e) petitioner’s civil suit for specific performance of an Agreement to Sell dated 27.01.2001 in O.S.No.771/2005, having been opposed by the contesting respondents herein as defendants, came to be decreed on 05.09.2009 and the appeal in R.A.No.1065/2009 filed by the said defendants was dismissed on 20.04.2011; despite that these defendants did not obey the decree and therefore, the petitioner got the execution & registration of the sale deed through the court commissioner; this apart, during the pendency of petitioner’s said suit, these respondents in disobedience of the interim order of injunction, had sold the subject property in favour of the 6th respondent; conduct of their’s virtually amounts to an act calculated to overreach the court order; this is also a factor though feeble, for granting relief to the petitioner from being subjected to cross-examination at the hands of such unscrupulous litigants;
In the above circumstances, this Writ Petition succeeds; the impugned order is set at naught; petitioner’s subject application having been favoured, he is relieved from being cross-examined by the respondent Nos.1 to 5 who are directed to pay to the petitioner a cost of Rs.10,000/- within six months.
Sd/- JUDGE Snb/