The right to cross-examine a witness belongs to an adverse party, and parties who do not hold that position should not be allowed to take part in the cross-examination.

ORDER :

1. This revision is filed under Article 227 of the Constitution of India against the order dated 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 Section 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 Section 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.

4. On the other hand, the learned counsel for D-13/R-13 contended that the trial Court has rightly appreciated the objection basing on Section 138 of the Act which provides the order of examination and since the plaintiff is opposing the case of the witness, the plaintiffs have to first cross-examine the witness and if at all necessary, D-13 would cross-examine later.

5. Before the trial Court, the decision of the High Court of A.P. in Vemulapalli Rama Krishna Prasad vs. Hanumanula Bapamma and Others, (2007) 1 ALD 470 and decision of High Court of Karnataka in M/s Ennen Castings Private Limited vs. M.M. Sundaresh and Others, ILR 2003 Kar. 3490 were cited. The very same decisions are placed before this Court and relied by the learned counsels for both parties. The other respondents are shown to be not necessary parties.

6. The purpose of cross-examination is stated in the decision rendered by the High Court of Karnataka in M/s Ennen Castings Private Limited (supra) at Para-8 as follows:

“The essence of cross-examination is that it is the interrogation by the advocate of one party of a witness called by his adversary with the object either to obtain from such witness admissions favorable to his cause or to discredit him. Cross-Examination is the most effective of all means for extracting truth and exposing falsehood. The object is to impeach the accuracy, credibility and general value of the evidence given in chief to sift the facts already stated by the witness to detect and expose discrepancies or to elicit suppressed facts which will support the case of the cross-examination party. The exercise of his right is justly regarded as one of the most efficacious tests, which the law has devised for the discovery of truth. It is beyond any doubt the greatest legal engine every invented for the discovery of truth. The right of cross-examination belongs to an adverse party and parties who do not hold that position should not be allowed to take part in the cross-examination.”

9. As a general rule, evidence is not legally admissible against a party, who at the time it was given had no opportunity to cro