RAJANI DEL Vs. NAROTTAM SAHOO

JUDGEMENT

(1.) The petitioner, who is the plaintiff in Title Suit No. 19 of 1994 of the Court of the Civil Judge (Sr. Division), Athagarh, has filed this revision against an order dated November 25, 1998 by which the Trial Court has allowed an application filed by the Opp. Parties 1 & 2 (Defendant Nos. 1 & 2 in the suit) to permit them to cross-examine the witness who was examined on behalf of the defendants 3 to 5. It appears that the defendant No. 5 Jayanti Dei deposed as witness No. 1 for the defendants 3 to 5 (in short 'concerned witness'). The said witness was examined by defendnts 3 to 5, cross-examined on behalf of the present petitioner (Paintiff) and was discharged as no other party wanted to cross-examine the said witness. It has been stated in the revision application that the Counsel for the defendants 1 & 2 declined to cross- examine the said concerned witness. On October 28, 1998 the opp. Parties 1 & 2 filed .on application to recall the said concerned witness for being cross-examined by the said defendants 1 & 2. The present petitioner filed a written objection pointing to that the cross- examination was declined by the defendants 1 & 2 and that their case being similar to that of the defendants 3 to 5 they cannot be treated as adverse party and are not entitled to cross- examine the witness of the co-defendants.

(2.) It is well settled that a co-defendant can cross-examine a witness examined by another defendant if the co-defendant takes a contrary stand on a relevant and material issue or the witness makes statement which is prejudicial or injurious to the interest of former co-defendant. When a witness is examined by a party only such party who has interest adverse to the said first party can cross-examine such witness.

(3.) I have perused the application filed by the present petitioner in the Trial Court. Only reson given therein is that their Advocate was not present at the time of examina- tion-in-chief of the concerned witness and as such could not cross examine him at that point of time. The reason assigned in the said application is not sufficient for recalling the witness of co-defendants 3 to 5 for cross-examination. It is necessary to clearly point out how the interest of defendants 1 and 2 is adverse to that of defendants 3 to 5 and to specify whether the witness has stated any thing which prejudicially affects any of their interest. The Trial Court has allowed the said application without applying its mind to the settled law operating in the field.