TULSIDAS GIRDHARLAL Vs. SHANTILAL KARSANDAS

JUDGEMENT

(1.) In this application under Section 115 of the Code of Civil Procedure the petitioners who are original Defendant Nos. 1 and 2 in Regular Civil Suit No. 27 of 1974 on the file of the learned 2nd Joint Civil Judge (J.D.) Bhavnagar have challenged the order passed by the learned trial Judge on 7-2-1982 below the petitioners application Exhibit 79. By the said application the petitioners requested the learned trial Judge to refuse permission to Opponent No. 3 original Defendant No. 3 to cross-examine Opponents Nos. 1 and 2 the plaintiffs on the ground the Defendant No. 3 was not an adverse parts so far as the original plaintiffs are concerned and consequently the court had no jurisdiction to permit such cross-examination by Opponent No. 3 of Opponents Nos. 1 and 2.

(2.) In order to appreciate the grievance of the petitioners a few relevant facts are required to be noted at the outset. The petitioners are brother and sister. They are legal representatives of deceased Girdharlal Madhavji Dholakia. The opponents are also brothers. The petitioners predecessor-in-interest and the predecessor-in-interest of the opponents entered into a partnership business in iron hardware and pipes in the name and style of M/s. R. Tulsidas and Company at Bhavnagar. Some disputes arose inter-se partners in connection with the partnership business. That resulted into execution of arbitration agreement by all the parties on August 27 1971 whereunder one Gulabbhai Sanghvi an advocate practising on income-tax side at Bhavnagar was appointed as the sole arbitrator to resolve the dispute. The said arbitrator after due inquiry gave his award on 8-7-1972. By the said award it was decided that the opponents herein had to pay Rs. 37 242.18 to Petitioner No. 1 and Rs. 48 595.74 to Petitioner No. 2. Opponents were held to be jointly and severally liable to make good these amounts to the petitioners under the scheme of monthly instalments mentioned in the award. This award was made the rule of the court. Thus it resulted in an award decree. It is thereafter that Opponents Nos. 1 and 2 filed the present civil suit in the trial court. It is from the order in that suit as stated above that this revision application arose. The suit was filed by Opponents Nos. 1 and 2 for challenging the award decree on various grounds I am not concerned with the merits of the contentions put forward by the plaintiffs in the suit as it is yet to be decided on merits by the court below. In the aforesaid suit Opponents Nos. 1 and 2 who as per the award decree were made jointly and severally liable to make good the awarded amounts to the petitioners alongwith Opponent No. 3 the other brother did not join him as co-plaintiff but joined him as Defendant No. 3. The petitioners naturally were joined as Defendants Nos. 1 and 2 as they were the award-decree holders whose award decree was challenged by Opponents Nos. 1 and 2. The suit was resisted by the petitioners by filing written statement Exhibit 15. So far as Opponent No. 3 was concerned he did not appear at an earlier stage in the suit to contest the proceedings. liven Opponents Nos. 1 and 2 remained absent at the earlier stage. That resulted in the dismissal of the suit for default but ultimately it was restored to file on the application filed by Opponents Nos. 1 and 2 for restoration. Thereafter the suit proceeded on merits after framing of issues by the learned trial Judge. Oral evidence of Opponent No. 1 was recorded. Thereafter the plaintiffs evidence was closed. Then petitioners oral evidence was recorded. Petitioner No. 1 was cross-examined by the learned Advocate for the plaintiffs and then even the petitioners evidence was closed. It is at that stage that Opponent No. 3 came forward with a case that summons of the suit was not duly served on him. Consequently a fresh summons was issued to him. He then filed his written statement on 18 Having filed his written statement he orally requested the learned trial Judge to permit him to cross-examine Opponent No. 1 who was his own brother. As it was found that the learned trial Judge was inclined to grant this oral request the petitioners gave an application in writing Exhibit 79 requesting the learned trial Judge not to permit Opponent No. 3 to cross-examine Opponent No. 1 as their interests were common and not adverse to each other. As noted earlier this application was rejected by the learned trial Judge who held that Defendant No. 3 should be given an opportuniiy to cross-examine the plaintiffs in the interest of justice. It is this order which has been impugned in the present revision application by the original Defendants Nos. 1 and 2.

(3.) Mr. Gandhi for the petitioners vehemently contended that the learned Judges order suffers from patent error of jurisdiction.. as Defendant No. 3 looking to his own written statement does not put forward anything adverse to the plaintiffs interest. In fact he sails in the same boat as the plaintiffs who are his own brothers and Defendant No. 3s written statement is practically a mirror image of the plaint. Under these circumstances as per the provisions of Sections 137 and 138 of the Evidence Act Opponent No. 3 who is not an adverse party cannot be permitted to crossexamine the plaintiffs. In support of his contention Mr. Gandhi invited my attention to the plaint as well as written statement of Defendant No. 3. So far as the plaint is concerned it is obvious that Opponents Nos. 1 and 2 who are plaintiffs and who are facing the award decree imposing a joint and several monetary liability on them along with opponent No. 3 have tried to get out of the award decree by taking various contentions in the plaint. In para 10 it is contended that the plaintiffs were never represented before the arbitrator for the purpose of protecting their interest and that as Defendant No. 3 had no authority whatsoever to represent the interest of the plaintiffs the proceedings before the arbitrator are bad at law. That the arbitration agreement was vague and that the arbitrator had misconducted himself. Therefore the award decree is vitiated. Ultimately it was prayed in the suit that a declaratory decree be passed declaring the award and decree marks 4/3 and 4/4 are illegal ultra vires and bad and inoperative and against the interest of the plaintiffs and a permanent injunction be granted against Defendants Nos. 1 9 and 3 jointly and severally in their all capacities and their successor in title restraining them from enforcing the decree and award referred to in the plaint. It is obvious that so far as Defendant No. 3 is concerned he was not a decree-holder. On the contrary he was a joint judgment debtor as per the award decree. In substance the relief prayed for in the plaint by Opponents Nos. 1 and 2 was to avoid the award decree and its executability. It goes without saying that ultimately any relief if at all is made available to the plaintiff the said relief would ensure for the benefit of Defendant No. 3 also as he is a joint judgment debtor in the award decree alongwith Opponents Nos. 1 and 2. Thus the plaint seeks to avoid monetary obligation under the award decree which has been adjudicated upon by the arbitrator against all the three opponents. In the light of the aforesaid averments in the plaint and the nature of the relief prayed therein the written statement of Defendant No. 3 will have to he scrutinised for finding out as to whether he was holding brief for the plaintiffs or a brief against them. The written statement dated 18 filed by Opponent No. 3 in various paras expressly mentions how the dispute was not referable to the arbitrator and how the award was without authority. In para 12 of the written statement it has been further stated that in view of the averments made in the earlier paras of the written statement the letter appointing arbitrator was an illegal one. The award of the arbitrator was illegal and void and consequently the decree passed by the learned trial judge on 98 on the basis of the award was also illegal. The aforesaid written statement of Opponent No. 3 leaves no room for doubt that he supported the plaintiffs his own brothers who were also co-judgment debtors alongwith him in the award decree and which all of them are out to get voided. Defendant No. 3 therefore in the light of his written statement is not an adverse party so far as the plaintiffs are concerned. His interest is in no way conflicting with the interest of the plaintiffs but it runs parallel to the interest of the plaintiffs. In the light of these pleadings of the opponents it is obvious that Opponent No. 3 who is supporting the plaintiffs had no right to cross-examine the plaintiffs. Section 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. Section 137 of the Evidence Act also provides that 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-examining the party whose interest is opposed to the interest of the party seeking cross-examination. On the pleadings of the parties it is apparent that Defendant No. 3 had no right to cross-examine the plaintiff. Unfortunately the learned trial Judge totally missed this aspect and permitted him to cross-examine Opponent No. 1. Mr. Gandhi also invited my attention to a decision of the Bombay High Court in Piroja Ghadiali v. Pestonji Ghadiali reported in 48 BLR at page 36. N. J. Wadia J. had an occasion in that case to consider a similar question. In that case a co-defendant whose interest was not conflicting with that of the other defendants wanted to cross-examine the co-defendant. While refusing such permission Wadia J. made the following pertinent observations: The Indian Evidence Act gives the right of cross-examination only to the adverse party. In the present case the defendant and the co-defendant have both denied the adultery and so far as the written statements put in by them go their defences are identical. There is nothing in the evidence given by the defendants which can in any way he said to be adverse to the co-defendant. The general rule is that a defendant may cross-examine his co-defendant who gives evidence or any of his co-defendants witnesses if his co-defendants interest is hostile to his own. It is only where the evidence of a co-defendant or a co-respondent is adverse to the defendant or the respondent that the defendant or respondent can claim the right to cross-examine. There would be very obvious disadvantages if in this case where the contentions of the defendant and the co-defendant are identical the co-defendant were allowed to cross-examine the defendant who for all practical purposes may be regarded as to co-defendants witness. The disadvantage becomes all the more serious because the request to cross-examine is made after the real adverse party the plaintiff has finished his cross-examination. The co-defendant if allowed to cross-examine the defendant will be able to practically nullify the effect of the plaintiffs cross-examination and to get in additional evidence to fill up any gaps which may have been disclosed by the plaintiffs cross-examination and to do so by putting leading questions which would not have been permissible in examination-in-chief. The same view has been taken by this court (Coram: A. M. Ahmadi J.) in the case of Hussen Hasanali v. Sabbirbhai Hasanali AIR 1981 Guj. 190 ( = 1981 GLH 230). In fact the facts of the case before Ahmadi J. were almost identical with the facts of the present case so far as the question involved in the present proceedings is concerned. In Hussens Case the proforma defendant wanted to examine plaintiff-Trial Court initially grouped the request of the proforma defendant who was practically like the plaintiff but subsequently ratified the error by deleting cross-the in examination in exercise of inherent powers of the court. The question before this court was as to whether such an order of the trial court was justified. Considering the scheme of Sections 137 and 138 of the Evidence Act Ahmadi J. made the following pertinent observations in para 3 of the report: