STATE OF WEST BENGAL Vs. RAMA DEVI

JUDGEMENT

(1.) In this matter the plaintiff has concluded examination-in-chief. the defendant No.3, who is pro forma defendant being represented by Mr. Das, Senior Counsel, wants to cross examine friendly the witness of the plaintiff.

(2.) Mr. Hirak Mitra, Learned Senior Counsel appearing with Mr. R. Sharma, seriously objects to such examination of the plaintiff. He has drawn my attention to my order dated 25-4-2001 and submits that this question of right of examining the witness of the plaintiff by the defendant No.3 has to be decided first to which I agree. The decision is as follows :- Mr. Sharma with the leave of Mr. Mitra submits that under the Evidence Act the witness can be examined by the party who has called him and by the adversary party and there is no contemplation of further examination by any of the parties in the Evidence Act 1872. His further contention is that the defendant No.3 has not filed any written statement to put his case, rather he is depending upon result of the suit in favour of the plaintiff. In the guise of friendly cross-examination, a further examination-in-chief cannot be allowed to be done by the pro forma defendant. If it is allowed, then whatever lacuna crept in the examination of the plaintiff of its witness, the same shall be allowed to be filed in illegally and/or wrongly, He further submits that the pro forma defendant cannot have any right to examine any of the witness of the plaintiff and in support of his submission he has relied on a decision of the Gujarat High Court, reported in AIR, 1981 Guj. 190. He draws my attention to paragraphs 3 and 7 of the above authority. Moreover, the alleged right of the pro forma defendant is a very remote and he cannot have any stake in the subject matter of the suit and as such an application for striking out of the defendant No.3 from the array of the party has been taken out and the same is kept pending for hearing. He has also drawn my attention to my another Judgment and Order dated 24-4-2001, whereby I refused to transpose the defendant No.3 in the capacity of the plaintiff.

(3.) Mr. P. K. Ghosh, ld Sr. Counsel appearing for the plaintiff submits that the defendant No.3 has sufficient interest in the subject matter of the suit as his client has applied for granting lease of the tea garden, which is subject matter of the suit and, therefore, he should be allowed to examine his witness as it is necessary for the purpose of effective adjudication of the dispute.