CHINNAIAH Vs. VALLIAMMAL

JUDGEMENT

(1.) This Civil Revision Petition is filed against the order passed in Memo dtd. 4/9/2015 filed by the plaintiff / first respondent in O.S.No.172 of 2010 on the file of the I Additional District Judge (PCR), Thanjavur. For the sake of convenience, the parties herein are referred to as arrayed in O.S.No. 172 of 2010.

(2.) The revision petitioner herein is the fourth defendant in the said Memo. The suit in O.S.No.172 of 2010 was one for partition. After the filing of proof affidavit of examination-in-chief by the third defendant, a Memo was filed by the first respondent / petitioner / plaintiff stating that, the 'third defendant' is the wife of the fourth defendant. Though they have filed separate written statements, they have no conflicting interest adverse to each other. They do not make any claim against each other as well. The written statement filed by both of them are one and the same and in the said circumstances under Sec. 137 of the Indian Evidence Act, 1872 an 'adverse party' alone can cross-examine any witness. Admittedly the fourth defendant and the third defendant who are husband and wife are not adverse to each other and hence, the fourth defendant has no right to cross-examine the third defendant. If he is allowed to examine, his examination may nullify the adverse party's cross-examination.

(3.) Refuting the same, the revision petitioner filed an objection that, in a suit for partition, there is no plaintiff or defendant, all are plaintiffs and so the plaintiff is not supposed to curtail the stand of others, as each and every party would like to establish their stand. The learned Trial Court on appreciation of both the parties, passed an order in the said Memo. In the order in Memo of O.S.No.172 of 2010, the relevant portion of which is extracted as follows: