PATNA VENKATA SREERAMULU Vs. DALLI APPALAREDDY

JUDGEMENT

(1.) This revision is filed under Article 227 of the Constitution of India against the order dtd. 13/10/2020 in O.S.No.38 of 2012 on the file of the Court of Principal District Judge, Vizianagaram, whereby the Court below directed the plaintiff to cross examine DW-1/first defendant (D1) at the first instance by adopting the order of examination as referred in Sec. 138 of the Indian Evidence Act, 1872 (for short, the Act).

(2.) The aggrieved plaintiffs preferred this revision petition stating that they filed the suit for specific performance of the agreement of sale and D-1 to D-4 filed written statement denying the misrepresentation and fraud played by D-13, who is the second purchaser of the very same property, and denied the suit claim of the plaintiffs supporting the sale deed executed in favour of D-13 and similarly D-13 also denied the claim of the plaintiffs and, therefore, D-13 is not an adverse party to DW-1 within the meaning of Sec. 138 of the Indian Evidence Act and if at all D-13 is allowed to cross examine DW-1, it must be prior to cross examination of DW-1 by the plaintiffs, but the trial Court erroneously directed the plaintiffs to first cross examine DW-1 failing to observe that DW-1 supports the case of D-13.

(3.) The learned counsel for the petitioners submitted that it is settled law that a witness/defendant can be cross examined by co-defendants who oppose the case of that witness and also the plaintiff, but the party who is sailing with the witness must cross examine the witness of opposite party and, therefore, the party opposing would cross examine or else the purpose of cross examination which is purported to elicit the truth would be defeated and in case if the party sailing with the witness is permitted to cross examine later, there is every chance to fill up the gaps or improve the case left by the witness.