1. Suit for partition and mesne profits — Co-defendant permitted to cross-examine another co-defendant under Section 151 CPC. (Para 1 , 2 , 5 , 6 )
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2026 Supreme(Kar) 343
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
VIJAYKUMAR A. PATIL, J.
Muniyappa, S/o. Kote Munivenkatappa - Petitioner
Versus
Narayanaswamy, S/o. Kote Munivenkatappa – Respondent
Writ Petition No.16596 of 2022 (GM-CPC)
Decided On : 06-08-2026
Advocates Appeared:
For the Petitioner: Sri. D. Aswathappa, Adv.
For the Respondent: Sri. Prithviraj Shastry G, Adv., Sri. G. Balakrishna Shastry, Adv.
For the Petitioner: Sri. D. Aswathappa, Adv.
For the Respondent: Sri. Prithviraj Shastry G, Adv., Sri. G. Balakrishna Shastry, Adv.
A co-defendant may be permitted to cross-examine another co-defendant if the latter's testimony exhibits hostile animus or is adverse to their interests, especially when the evidence provided contradicts the common stand taken in the pleadings.
Headnote:(A) Code of Civil Procedure, 1908 - Section 151 - Indian Evidence Act, 1872 - Sections 137 and 138 - Cross-examination of a co-defendant - Generally, a co-defendant is not permitted to cross-examine another co-defendant when their interests are common and there is no counter-claim - Exception exists where there is an adverse interest or a clash of interest between the co-defendants which needs to be decided (Paras 7, 8, 26).
(B) Hostile animus - When a co-defendant's testimony is found to be completely adverse to the interests of another co-defendant and contradicts the stand taken in the written statement, such conduct constitutes hostile animus, justifying the permission to cross-examine the said witness (Paras 12, 15).
Facts of the case:
In a suit for partition and mesne profits, several defendants filed a written statement claiming that a prior partition had taken place and certain properties were self-acquired. However, one of the defendants, while testifying as a witness, admitted in cross-examination that no partition had occurred and that another defendant acted as the manager of the family, directly contradicting the pleaded stand. The trial court permitted the other defendants to cross-examine this witness, which was subsequently challenged via a writ petition.
Findings of Court:
The court found that the testimony of the witness was contrary to the written statement and clearly hostile to the interests of the other defendants, thereby justifying the trial court's order.
Issues: Whether the trial court erred in allowing co-defendants to cross-examine another co-defendant whose evidence was adverse to their interests and contrary to the common written statement.
Ratio Decidendi: Permission to cross-examine a co-defendant is granted when there is an established adversarial relationship or when the witness exhibits hostile animus by providing evidence contrary to the pleaded stand. Because the witness's admissions contradicted the written statement and were adverse to the interests of the other defendants, the trial court rightly permitted the cross-examination.
Result: The writ petition is devoid of merits and the same is hereby rejected.
Legal Category Hierarchy
Table of Contents
2. Petitioner challenges cross-examination order arguing no conflict of interest; respondent supports order citing adverse evidence. (Para 2 , 3 )
3. DW-2's evidence is contrary to the written statement and hostile to co-defendants' interests, justifying cross-examination. (Para 6 , 12 , 15 )
4. Co-defendant may be cross-examined where evidence shows adverse interest or hostile animus, not merely unfavourable statements. (Para 8 , 9 , 10 , 11 , 12 )
5. Writ petition dismissed; Trial Court's order allowing cross-examination of co-defendant upheld. (Para 16 )
6. When can a co-defendant be permitted to cross-examine another co-defendant?
Where there is a clash of interest, a counterclaim, or adverse interest established through pleadings and evidence, not merely from isolated statements in cross-examination. (Para 8 , 9 , 10 , 11 , 12 )
7. Does a mere unfavourable statement during cross-examination justify cross-examination by a co-defendant?
No. Unfavourable statements alone are insufficient; the court must find that the witness exhibited hostile animus or that the interest became adverse. (Para 11 , 12 )
8. What is the relevance of hostile animus in permitting cross-examination of a co-defendant?
Hostile animus, judged from the answers and evidence, is necessary to allow a co-defendant to cross-examine; mere omission or contrary testimony may suffice. (Para 12 )
ORDER :
VIJAYKUMAR A. PATIL, J.
This writ petition is filed challenging the order dated 03.08.2022 passed in O.S.No.154/2007 by the Senior Civil Judge and JMFC, Chinthamani (for short, ‘the Trial Court’).
2. The learned counsel for the petitioner submits that the Trial Court has committed a gross error in allowing the application filed by the defendant No.1 seeking to cross-examine DW-2 without ascertaining whether there exists any conflict of interest. It is submitted that the evidence of DW-2 does not indicate that he has stated anything in his evidence contrary to the written statement and against the interests of the defendant No.1. It is further submitted that if any admissions have come in the cross-examination of DW-2, it cannot be a ground to seek cross-examination of the co- defendant. It is also submitted that the cross-examination is permissible only in cases where there is a counter claim between the co-defendants. However, in the case on hand, the defendants are all sailing together and hence, allowing the cross-examination of the co-defendant is incorrect and the writ petition deserves to be allowed. In support of his contentions, he placed reliance on the following decisions:
(a) SUJITKUMAR Vs. INDRABAI AND OTHERS , W.P.No.104160/2021 dt. 28.10.2021
(b) BIJULI CHAKRABORTY AND ORS. Vs. BHUBENESWARI BAISHYA AND ORS. , 2018 SCC Online Gau 1999
(c) T.SAVITRI Vs. SMT. TETALA RAMA DEVI (D) AND OTHERS, 2012 SCC Online AP 475
(d) VIJAYA Vs. SARASWATHI AND OTHERS , 2008 SCC Online Mad 116
3. The learned counsel for the respondent No.1 supports the impugned order of the Trial Court and submits that the defendant Nos.1 and 3 have filed a written statement, the defendant No.2 filed a memo adopting the written statement of the defendant Nos.1 and 3 and subsequently filed an affidavit by way of examination-in-chief and in the cross-examination, he has admitted that there was no partition and that the defendant No.1 was the karta of the family which is contrary to the stand taken by the defendants in the written statement. Hence, the Trial Court has rightly permitted the defendant Nos.1 and 3 to cross-examine DW-2. The same does not call for any interference. Hence, he seeks to dismiss the petition.
4. I have heard the arguments of the learned counsel for the petitioner, the learned counsel for the respondent No.1 and meticulously perused the material available on record.
5. The petitioner filed O.S.No.154/2007 against the respondents seeking the relief of partition and also sought the relief of mesne profit with regard to the suit schedule properties. The defendant Nos.1 and 3 have filed a written statement which was adopted by the defendant No.2 by filing a memo. The plaintiff adduced the evidence. The defendant No.2 filed an affidavit of examination-in-chief as DW-2. The said witness was cross-examined. Thereafter, the defendant No.1 and the legal heirs of the defendant No.3 have filed an application under Section 151 of the Code of Civil Procedure, 1908 (for short, ‘the CPC’) seeking prayer to permit them to cross-examine DW-2 who has adduced the evidence completely adverse to the interests of the defendant No.1 as well as the legal heirs of the defendant No.3. The said application was opposed by the plaintiff as well as the defendant No.2. The Trial Court, under the impugned order, allowed the application in I.A.No.25 by permitting the defendant No.1 and the legal heirs of the defendant No.3 to cross-examine DW-2.
6. The case of the plaintiff is that the suit schedule properties are the joint family properties and he is entitled to 1/5th share. The defendants denied the plaint averments by specifically contending that the defendant No.1 was never a manager of the joint family properties as alleged in the plaint and the father of the defendants was the manager of the joint family properties during his lifetime and after his death, the plaintiff being a clever member of the family, became the manager of the joint family properties til
