SHRIKANT R SHIRDOKAR Vs. XABIRABI SHAIK KADAR

JUDGEMENT

(1.) The first respondent in Case No. BLDG/5/ARC-H/ 1988 in a petition for eviction under Section 22 of the Goa, Daman and Diu Buildings (Lease Rent and Eviction) Control Act, 1968, before the Additional Rent Controller, is the petitioner; herein. He is the tenant in respect of shop No.14 of building "Kadar Manzil". The respondents No.1 and 2 herein are the landlords. They filed and petition before the Additional Rent Controller for eviction of the petitioner and the third respondent on the ground of change of user and sub-lease. The petitioner being the original tenant contested the application filed before the Additional Rent Controller. She alleged sub-letting was in faovur of the respondent No. 3. Before the Additional Rent Controller, the petitioned denied the change of user and also the sub-lease alleged in the petition. The third respondent has admitted that the building was sub-leased by the petitioner to him, but he did not know whether the lease in his favour was with or without the consent of the landlord. With these pleadings the parties went to trial. During the oral evidence the second respondent/landlord was put in the witness box. After his examination-in-chief he was cross-examined on behalf of the petitioner. Thereafter. the Additional Rent Controller permitted the third respondent to cross-examined the landlord. Than an objection was raised on behalf of the petitioner that since the third respondent is not an adverse party to the witness/landlord as he has not pleaded anything against the allegations made by the landlord in that petition, he cannot be permitted to cross-examine the landlord. This objection was, however, overruled by the Additional Rent Controller by Order dated 8th August, 1990. Against this Order a revision application was filed as Eviction Revision Application No 18/90 before the Administrative Tribunal and by Order dated 21st June, 1991, the Administrative Tribunal also sustained and Order of the Additional Rent Controller allowing the third respondent to cross-examine A.W.1 and dismissed the revision application filed by the petitioner. The aforesaid two orders against the petitioner are now under challenge in this Writ Petition.

(2.) In the light of the aforementioned facts and only question that emerges in this case is whether the objection raised on behalf of the petitioner in allowing the cross-examination of A.W.1 at the instance of the third respondent is sustainable and whether the orders impugned warrant interference by this Court in exercise of the power of this Court under Article 227 of the Constitution of India.

(3.) The learned Counsel for the petitioner, Mr. Diniz, has taken me through the pleadings of the parties and argued that the third respondent cannot be an adversary party to A.W. 1. He submits that the third respondent cannot be allowed to cross-examination A.W. 1. In order to-fortify his argument he cited the decisions of the Delhi High Court in the case of the 'Mrs. Des Raj Chopra & Ors. v. Puran Maol & Ors., 1975 AIR(Del) 109 'Hussens Hasanali Pulavwala v. Sabbirbhat Hasanli Pulavwala & Ors., 1981 AIR(Guj) 190' and Piroj Ghadiali v. Pestonji Chadiali, 1946 48 BLR 36. He argued that all these decisions have held that by going by the pleadings, if a witness is to be examined and the person who is cross-examining him are not adverse parties and their interest is not conflicting each other, such witness cannot be allowed to be cross-examined by such party. The learned Counsel for the petitioner has argued by emphasizing the fact that unless the pleadings show that a party is adverse to the other party, he cannot he allowed to cross-examine the other. I perfectly agree with the contention of the Counsel for the petitioner and one can have no quarrel with the proposition laid down by the authorities. All these decisions cited by the Counsel for the petitioner lay down that the right to cross-examine a witness invested on an adverse party. Then the next point that may arise is, "who is an adverse party -. Going by the literal meaning of Section 137 of the Evidence Act, it anncars that it embraces all parties to the proceedings other than the party who calls the witness to depose. Section 137 of the Evidence Act, 1872 , reads as under :