HUSENA HASANALI PULAVWALA Vs. SABBIRBHAI HASANALI PULAVWALA

JUDGEMENT

(1.) The facts giving rise to this revision application briefly stated are that respondent No. 1 filed an administration suit in the City Civil Court at Ahmedabad being Suit No. 262 of 1978 for the administ- ration of the estate of deceased Sugarabu Kikabhai. In the said suit he joined his step-brother Asgarali and step-sisters Amina and Zenab as defendants Nos. 1 2 and 3. These three defendants filed written state- ments at Exs. 25 and 26 contesting the suit. He also joined his true sisters Husena and Nafisa as defendants Nos. 4 and 5 and they filed a supporting written statement Ex. 37. By that written statement they accepted the averments made in the plaint as correct and prayed that the estate of the deceased may be administered. Defendant No. 6 Abbas- bhai also filed a contesting written statement to the suit. It appears that on the basis of the averments made in the pleadings of the parties the issues were settled at Ex 42. The plaintiff thereafter entered the witness -box and he was examined-in-chief by his learned Advocate and there- after at the request of defendant No. 1 the learned Advocate for defen- dants Nos. 2 and 3 was called upon to cross-examine the plaintiff. It is necessary to point out that before the learned Advocate for the defen- dants Nos. 2 and 3 started to cross-examine the plaintiff no request was made by defendants Nos. 4 and 5 who were supporting the case of the plaintiff to permit them to put questions to the plaintiff. The learned Advocate for defendants Nos. 2 and 3 cross-examined the plaintiff at length and thereafter at about 1.45 P. M. he left the Court room with the permission of the learned Presiding Judge to offer his prayers. During his absence it appears that the Court permitted the learned Advocate for defendants Nos. 4 and 5 to cross-examine the plaintiff. When the learned Advocate for the defendants Nos. 2 and 3 returned to the Court room after offering prayers he learnt from his junior Advocate who was taking notes that the learned Advocate for the defendants Nos. 4 and 5 had cross-examined the plaintiff. Thereupon he gave an application Ex. 67 for expunging the cross-examination of the plaintiff by the learned Advocate for defendants Nos. 4 and 5 on the ground that they had no light to cross-examine since they were supporting the case of the plain- tiff. The learned trial Judge considered the submissions made in this behalf and by his detailed order dated 18/09/1980 directed that the cross-examination undertaken on behalf of the supporting defen- dants Nos. 4 and 5 as recorded in paragraph 12 of the deposition of the plaintiff should be delated as defendants Nos. 4 and 5 had no right to cross-examine the plaintiff since they were not adverse parties. It is this order which is challenged by defendant No. 4 in this revision application.

(2.) Sec. 137 of the Evidence Act defines `Examination-in Chief as examination of a witness by the party who calls him for giving evidence. The examination of that witness by the adverse party is called `cross- examination. The examination of that witness subsequent to the cross- examination by the party who called him is called `re-examination. Sec. 138 then lays down the order of examination and provides that a witness shall be first examined-in-chief then (if the adverse party so desires) cross-examined and then (if the party calling him so desires) re- examined. The examination-in-chief and cross-examination must relate to relevant facts. The cross-examination need not be confined to facts to which the witness testified on his examination in chief. The re-exami- nation 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. Sec. 142 next provides that leading questions must not if objected to by the adverse party be asked in an examination- in-chief or in re-examination except with the permission of the Court. According to sec. 143 leading questions may however be asked in cross- examination. According to sec. 154 it is open to the Court to permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. Sec. 155 next provides that the credit of a witness may be impeached by the adverse party or with the consent of the Court by the party who calls him in the manner set out in clauses (1) to (4) thereof.

(3.) It would appear from the scheme of the aforesaid provisions of the Evidence Act that in order to cross-examine a witness it must be shown that the party seeking cross-examination is an `adverse party. Merely because a party is shown as a defendant in the cause title of the plaint that party cannot be styled as an adverse party unless it is further shown that the party is a contesting party in the sense that he disputes the case put up by the plaintiff in the plaint. If a party accepts the plaintiffs case there is no contest between the plaintiff and that party and such a defendant cannot be styled as an `adverse party and would therefore not be entitled to cross-examine the plaintiff. In the instant case it is clear from the written statement filed by defendants Nos. 4 and 5 that they wholly supported the plaintiffs case and prayed that the estate of the deceased be administered as desired by the plaintiff. Such persons cannot be said to be adverse parties merely because they appear to be proforma defendants in the cause title of the plaint.