SAVJIBHAI VITTHALBHAI KATUDIA Vs. SAMUBEN VITTHALBHAI KATUDIA

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India challenges the order passed below Exh.48 dtd. 15/2/2018 by the Principal Civil Judge, Botad in Regular Civil Suit No.229 of 2015 whereby the request made by the petitioners - original defendant nos. 1 to 3 directing cross examination of the original plaintiff to be made first by original defendant nos. 4 to 6 as they have supported the case of the original plaintiff and thereafter the petitioners - original defendant nos.1 to 3 be asked to cross examine the witness so as not to harm the case of them, came to be rejected.

(2.) Considering the plaint, it appears that respondent no.1 herein is the original plaintiff, who filed the aforesaid suit against the petitioners - original defendant nos.1 to 3 and original defendant nos.4 to 6 for partition of the property claiming 1/7th share in the same as daughter of deceased Vitthalbhai. As per the case of the petitioners - original defendant nos. 1 to 3, neither respondent no.1 - original plaintiff nor original defendant nos.5 to 6 were daughters of deceased Vitthalbhai. However, defendant no. 4 - respondent no. 2 herein is the son of Shakuben Vitthalbhai, daughter of deceased Vitthalbhai and sister of petitioners - original defendant nos.1 to 3. According to the case of the petitioners - original defendant nos.1 to 3, respondent no.2 herein - original defendant no.4 in the suit has common interest with respondents nos.3 and 4 herein - original defendant nos. 5 and 6 alongwith the original plaintiff and they support the case of the original plaintiff made in the suit, and therefore, the petitioners - original defendant nos.1 to 3 vide application, Exh.48 requested the Court that looking to the averments made in the plaint as also the written statement, Exh.22 filed by respondent nos.2 to 4 - original defendant nos. 4 to 6 as also the documents produced by all of them, it appears that they have joined hands with each other and they have interest in common, and therefore, the petitioners - original defendant nos. 1 to 3 have requested that cross examination of the original plaintiff should be first concluded by original defendant nos. 4 to 6, who are supporting the case of the original plaintiff so as not to destroy the case of the petitioners - original defendant nos.1 to 3 in the cross examination elicited. It is further mentioned in the application that before the revenue authorities proceedings were initiated or defended by the original plaintiff as also respondents nos. 2 to 4 - original defendant nos. 4 to 6 jointly and against the petitioners - original defendant nos. 1 to 3. It was thus prayed that original defendant nos. 4 to 6 in the suit be directed to cross examine the original plaintiff first and thereafter the petitioners - original defendant nos.1 to 3 be called upon to cross examine the original plaintiff. By the impugned order, the learned Judge rejected the same and directed the petitioners - original defendant nos.1 to 3 to cross examine the original plaintiff.

(3.) Heard Ms. Tanaya Shah, learned advocate for Ms. Megha Jani, learned advocate for the petitioners. She has submitted that from the written statement as also the documents produced and relied on, the revenue proceedings either initiated or defended establishes that the original plaintiff as also defendant nos.4 to 6 are having interest in common and defendant nos.4 to 6 support the claim of the original plaintiff made in the suit, and therefore, if the petitioners - original defendant nos.1 to 3 are asked to cross examine the original plaintiff first, original defendant nos.4 to 6 may destroy their defence elicited, and therefore, according to her submission, the impugned order passed by the learned Judge is erroneous and against principles of law. For the aforesaid submission, she has relied on the written statement as also the documents produced and the revenue proceedings filed in the between the parties as also various decisions as under;