In a case where the plaintiff's case is fully supported by some defendants, those defendants are not an adverse party to the plaintiff, but are proforma defendants through whom the plaintiff is claiming a right to the property. In such a case, the evidence of the plaintiff having been recorded, it would be just and proper to ask the proforma defendants to initially cross-examine the plaintiff and then direct the contesting defendants to cross-examine the plaintiff.

JUDGMENT - PURANIK S.W., J.: - An important question regarding the procedure to be adopted while recording evidence of the parties in a civil suit and the order in which cross-examination of witnesses is to be recorded, has been raised in this revision.

2. The applicants are original defendants 1 to 5 in Civil Suit No. 112 of 1976 on the file of Civil Judge, Junior Division, Saoner. Non-applicant No. 1 is the original plaintiff, while non-applicants 2(a) to 2(c) are the legal representatives of original defendant No. 6.

3. To appreciate the contention raised on behalf of the applicants, it would be necessary to briefly narrate the facts :

The plaintiff filed a suit for declaration and possession against the applicants-defendants 1 to 5. It was the case of the plaintiff that he purchased a portion of the suit house from Chirkut-original defendant No. 6 and that he placed the Plaintiff in possession of the same. It is further alleged by the plaintiff that he permitted defendants 1 to 3 to occupy one room out of the said house. However, according to the plaintiff, defendants 1 to 5 forcibly occupied the suit portion and removed the plaintiff's movable articles described in the suit schedule and hence the plaintiff had filed the suit for possession and declaration against them.

4. The plaintiff's vendor Chirkut was impleaded as defendant No. 6. He supported the plaintiff's claim in toto. Original defendant No. 6, however, expired and his legal representatives were brought on record. The legal representatives of deceased Chirkut adopted the written statement filed by deceased Chirkut as their own written statement.

5. Thus it transpires that the plaintiff's case is supported by deceased Chirkut and his legal representatives i.e. defendants 6 to 8, while the defendants 1 to 5, the present applicants, are opposing the plaintiff's case.

6. During the course of the proceedings, the parties went to trial and the plaintiff was examined. Defendants 1 to 5 applied before the trial Court that since defendants 6 to 8 are supporting the case of the plaintiff, they should be directed to does examine the plaintiff first and then the defendants 1 to 5 should be directed to cross-examine the plaintiff. The learned Judge, however, by the impugned order dated 15-12-1981, rejected the application of defendants 1 to 5 and directed that cross-examination of the plaintiff would be done by all defendants in sequence in serial order. It is in the light of this stand that the applicants have come up in this revision.

7. I have heard the counsel of both the parties and perused the impugned order. It is contended that wide powers have been bestowed upon the trial Court while recording evidence under sections 135 and 136 of the Evidence Act and it would be a sound principle of law and practice that after the proforma defendants cross-examine the plaintiff, then alone the contesting defendants should be asked to cross-examine the plaintiff.

8. Order 18, Rules 1 and 2 relate to the stage of hearing of the suit and examination of witnesses. Rule 1 of Order 18 states that the plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seems, in which case the defendant has the right to begin.

9. Rule 2 of Order 18 Civil Procedure Code runs as under:

“2.(1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.

(2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case.

(3) The party beginning may then reply generally on the whole case.

(4) Notwithstanding anything contained in this Rule, the Court may, for reasons to be r

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