( 1 ) THIS civil revision under Section 115, Civil Procedure Code is directed against the order of the Additional City Civil Judge, bangalore allowing LA. 20 filed by the first defendant for permission to cross-examine defendant 2 who is examined as d. W. 1.

( 2 ) PLAINTIFF has filed a suit for specific performance of agreement of sale alleging that the defendants who are sister and brother have executed the same. In the defence filed by defendant 2, it is contended that he is the general power of attorney holder of defendant 1 which fact is disputed by the first defendant. Defendant 1 has denied the claim of the plaintiff that she has also joined hands with defendant 2 in execution of agreement of sale consideration.

( 3 ) AFTER the evidence of the plaintiff was closed, defendant 1 filed an application praying permission to examine herself after the evidence of defendant 2. The Trial Court has permitted her to do so. Thereafter, defendant 2 was examined as D. W. 1 and cross-examined by the plaintiff. At that stage, defendant 1 prayed for permission to cross-examine D. W. 1 on the grounds that there is conflict of interest in the defence of the defendant and that defendant 2 has colluded with the plaintiff in order to snatch a decree. The Trial Court having regard to these facts has permitted the first defendant to cross-examine defendant 2 i. e. , d. W. 1. But, to safeguard the interest of the plaintiff, Court has secured the questions from the first defendant's Advocate in a sealed cover and allowed the application with costs of Rs. 100/ -. The legality of the order is questioned in this revision.

( 4 ) SRI S. A. Mujeeb, learned Counsel for the petitioner, contended that the co-defendant has no right of cross-examining the other defendant and that the Trial Court's order is therefore erroneous.

( 5 ) THE short but important question that arises for consideration is whether a co-defendant has right to cross examine the other defendant.

( 6 ) IT is undisputed that no special provision is made in the Evidence Act for cross-examination of the co-accused or co-defendant's witnesses. The only relevant provision of law is sections 137 and 138 of the Evidence Act. Section 137 refers to examination-in-chief and cross-examination of a witness by the adverse party. The examination of an adverse party is the cross-examination. The question is who is an adverse party so far as the witness is concerned. The very object of cross-examination is to test the evidence. Dictionary of Law by Curzon, 4th Edition defines 'adversary' as witness who disappoints the party calling them i. e. , they are unfavourable and hostile witnesses. The new Webster Dictionary of English Language has explained the word 'adverse' as going in contrary direction; counter action; opposing, calamitous, unprosperious etc. .

( 7 ) SECTION 137 specifically explains that the examination of a witness by the adverse party is cross-examination. Section 138 of the Evidence Act refers to cross-examination if the adverse party so desires after the witness is first examined in chief. These two sections of the Evidence Act make it abundantly clear that a party has a right of cross-examining his adversary or his witness.

( 8 ) SECTIONS 137 and 138 of the Evidence Act do not specifically refer to cross-examination of co-defendant's witnesses. But, the courts have to adopt a golden rule that no evidence shall be received against any co-defendant or co-accused who had no opportunity of testing it by cross-examination; as it would be unjust and unsafe not to allow a co-accused or co-defendant to cross-examine witness called by one whose case was adverse to his, or who has given evidence against him. If there is no clash of interest or if nothing has been said against the other party, there cannot by any right of cross-examination. A short but, interesting discussion is found in Sarkar's Evidence at page 1342, 13th Edition. Similar opinion is found in Principles and dig