ANNAPURNA DEVI Vs. ADMINISTRATOR GENERAL U P

JUDGEMENT

(1.) THIS Special Appeal has been filed under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 by defendant No. 1/2 of Testamentary Suit No. 4 of 1985 feeling aggrieved by the order dated 30th January, 2009 by which his plea to cross-examine defendant No. 4 was rejected by a learned Judge of this Court. The dispute in the said Testamentary Suit is about the estate of the deceased Rani Rewati Devi widow of Ravi Pratap Narain Singh. It is said that an unregistered Will dated 14th April, 1984 was executed by Rani Rewati Devi under which a trust was created in which the trustees are defendant nos. 14 to 23 in the said Suit. The testator died issueless on 27th May, 1984. Jai Bharat Mani Aacharaya Dixit, executor of the said Will, filed Testamentary Case No. 10 of 1984 for grant of Letters of Administration in respect of the estate of the deceased Rani Rewati Devi. Notices were issued and since objections were filed, this Testamentary Case was converted into Testamentary Suit No. 4 of 1985. In this Suit Kunwar Anirudha Pratap Narain Singh was arrayed as defendant No. 1 while Anil Pratap Narain Singh was arrayed as defendant No. 4. Defendant No. 1 filed his written statement and stated that the deceased testator did not have any share in the property of Padrauna Raj and so could not execute the Will in respect of the demised property. Identical stand was taken by defendant No. 4. After the death of Kunwar Anirudha Pratap Narain Singh, the appellant was substituted as defendant No. 1/2. The executor of the Will died on 1st May, 1989 during the pendency of the Testamentary Suit and the Administrator General, Uttar Pradesh was substituted as the plaintiff. The appellant Smt. Annapurna Devi defendant No.1/2 was examined as DW1 on 21st November, 2008. She was cross-examined by the plaintiff on 15th December, 2008. Subsequently defendant No. 4 Kunwar Anil Pratap Narain Singh was examined as DW2. He was cross-examined by the plaintiff on 30th January, 2009. After the completion of the cross examination of DW2, the appellant, a co-defendant, sought permission of the Court to cross-examine DW2. THIS plea was rejected by the learned Judge by the order dated 30th January, 2009 which is as follows:- "Evidence of DW/2, Shri Anil Pratap Narain Singh S/o Shri Balbhadra Pratap Narain Singh has been closed. Shri Manish Dev Singh, Advocate, wanted to cross-examine the witness. The said prayer has been opposed by Shri P.K. Pandey, Advocate. He submitted that the witness has been cross-examined by the plaintiff and a defendant cannot be permitted to cross-examine the witness produced by another defendant. There is no question to cross-examine the witness. I find substance in the objection raised by Shri P.K. Pandey, Advocate. Shri Manish Dev Singh, Advocate, is not permitted to cross-examine the witness, of DW/2 at this stage." It is the contention of the appellant that as DW2 in his cross-examination had taken a stand contrary to the stand taken by the appellant and indirectly supported the case of the plaintiff, the appellant was justified in seeking permission of the Court to cross-examine DW2. The learned Administrator General, Uttar Pradesh has, however, submitted that a defendant can be permitted to cross-examine a co-defendant but such a defendant must demonstrate that the stand of the co-defendant is adverse to his stand. There is no difficulty in accepting the broad proposition that a defendant can be permitted to cross examine his co-defendant. THIS is what has been pointed out by Sarkar in his book 'Law of Evidence' (Volume II, Sixteenth Edition - 2007 at Page 2351) and the relevant portion is as follows:- "Sections 137 and 138 of the Evidence Act do not specifically refer to cross-examination of co- defendant's witnesses. But the Court have to adopt a golden rule that no evidence shall be received against a co-defendant or co-accused who had no opportunity of testing it by cross-examination; as it would be unjust and unsafe not to allow a co-accused or co-defendant to cross-examine witness called by one whose case was adverse to his, or who has given evidence against him. Where it is shown that the interest between the defendants inter se conflict each other, the other defendant has necessarily to be treated as an adversary and he is certainly entitled to cross-examine the other or his witnesses." Sections 137 and 138, to which reference has been made above, are as follows:- "137. Examination-in-chief.- The examination of a witness by the party who calls him shall be called his examination-in-chief. 138. Order of examinations.- 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. The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. Direction of re-examination.- The re-examination 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." Difficulty, however, arises where the interest of a co-defendant is not shown to be adverse to a defendant who wishes to cross-examine him. In such a situation, the defendant is not entitled to cross- examine the co-defendant. THIS is what follows from the passage referred to above which has been extracted from the book written by Sarkar. Chief Justice M. Munir in his Law of Evidence - (Volume II, 14th Edition at Page 2222) has also made the following observations:- "The right to cross-examine belongs to an "adverse party" and a person who is not "adverse party" should not be allowed to intervene in the proceedings and to take part in cross-examination of witnesses. Where the defences of a co-respondent or a co-defendant and the respondent or the defendant are identical neither is entitled to cross-examine the other." THIS is also what was observed by the Bombay High Court in Piroja Ghadiali Vs. Pestonji Ghadiali (1946) 48 BOMLR 367 and the relevant observations are as follows:- "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 defendant which can in any way be 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-defendant's witnesses, if his co-defendant's interest is hostile to his own: Halsbury, 2nd Edition Vol. XIII, P. 75 and also Vol. X, PP, 736-737. 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 the co-defendant's 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 plaintiff's cross-examination and to get in additional evidence to fill up any gaps which may have been disclosed by the plaintiff's cross-examination, and to do so by putting leading questions which would not have been permissible in examination-in-chief." (emphasis supplied) In the present case, it is not the case of the appellant that in his written statement defendant No. 4 had taken a stand contrary to the stand taken by defendant No. 1 in his written statement and nor is it her case that in the examination-in-chief defendant No. 4 had made any statement which may adversely effect her interest. In fact, it is her specific case that after defendant No. 4 was cross-examined by the plaintiff a request was made on her behalf for cross-examination of defendant No. 4. The order of the learned Judge shows that after the cross-examination of DW2 (defendant No. 4) was over, the counsel for defendant No.1/2, as of right, wanted to cross-examine the said witness without giving reasons as to why such cross-examination was necessary. Even in this Special Appeal filed by defendant No.1/2 all that has been stated in paragraph 8 of the affidavit is as follows:- "That on 30.1.09 the defendant no.4 was cross examined as DW 2 and in his cross examination on some peculiar facts he deposed contrary to the stand of appellant and indirectly supported the case of plaintiff and as such the appellant sought the permission of Court to cross examine the DW 2 to find out truth but the Hon'ble Court turned down the plea of appellant on 30.1.09." It is, therefore, clear that even in this Special Appeal only a bald allegation has been made that DW2 deposed contrary to the stand of the appellant and indirectly supported the case of the plaintiff. Nothing specific has been pointed out from the cross-examination of DW2 to support this allegation. In our opinion, cross-examination of a co-defendant cannot be permitted on the mere asking of a defendant and a defendant has necessarily to satisfy the Court that the co-defendant in his examination has taken a stand adverse to that taken by the defendant. We feel tempted to observe, as was also pointed out by the Bombay High Court in Piroja Ghadiali (supra), that a defendant may, at times seek permission of the Court for cross-examination of a co- defendant after the said co-defendant has been cross-examined by the plaintiff to merely nullify the effect of the cross-examination by the plaintiff and to get evidence to fill up the gaps. Thus, though we do not agree with the general observations made by the learned Judge in the impugned order that the witness had been cross-examined by the plaintiff and a defendant cannot be permitted to cross-examine the witness produced by another co-defendant, but in view of the fact that the appellant has not demonstrated as to how defendant No. 4 in his cross-examination has taken a stand contrary to the stand of defendant No.1/2, there is no good reason to interfere with the operative part of the order of the learned Judge rejecting the plea of the defendant No.1/2 to cross-examine defendant No.4. The Special Appeal is, accordingly, dismissed without any order as to costs.