A pro forma defendant, who has not filed a written statement and is not an adversary party, has no right to examine the plaintiff's witnesses, either adversely or friendly.

( 1 ) IN this matter the plaintiff has concluded examination-in-chief. the defendant No. 3, who is pro forma defendant being represented by Mr. Das, Senior Counsel, wants to cross examine friendly the witness of the plaintiff.

( 2 ) MR. Hirak Mitra, Learned Senior Counsel appearing with Mr. R. Sharma, seriously objects to such examination of the plaintiff. He has drawn my attention to my order dated 25-4-2001 and submits that this question of right of examining the witness of the plaintiff by the defendant No. 3 has to be decided first to which I agree. The decision is as follows :- mr. Sharma with the leave of Mr. Mitra submits that under the Evidence Act the witness can be examined by the party who has called him and by the adversary party and there is no contemplation of further examination by any of the parties in the Evidence Act 1872. His further contention is that the defendant No. 3 has not filed any written statement to put his case, rather he is depending upon result of the suit in favour of the plaintiff. In the guise of friendly cross-examination, a further examination-in-chief cannot be allowed to be done by the pro forma defendant. If it is allowed, then whatever lacuna crept in the examination of the plaintiff of its witness, the same shall be allowed to be filed in illegally and/or wrongly, He further submits that the pro forma defendant cannot have any right to examine any of the witness of the plaintiff and in support of his submission he has relied on a decision of the Gujarat High Court, reported in AIR, 1981 Guj. 190. He draws my attention to paragraphs 3 and 7 of the above authority. Moreover, the alleged right of the pro forma defendant is a very remote and he cannot have any stake in the subject matter of the suit and as such an application for striking out of the defendant No. 3 from the array of the party has been taken out and the same is kept pending for hearing. He has also drawn my attention to my another Judgment and Order dated 24-4-2001, whereby I refused to transpose the defendant No. 3 in the capacity of the plaintiff.

( 3 ) MR. P. K. Ghosh, ld Sr. Counsel appearing for the plaintiff submits that the defendant No. 3 has sufficient interest in the subject matter of the suit as his client has applied for granting lease of the tea garden, which is subject matter of the suit and, therefore, he should be allowed to examine his witness as it is necessary for the purpose of effective adjudication of the dispute.

( 4 ) MR. Das, submits that his client has applied for grant of lease in respect of the self-same tea garden which is the subject matter of the suit. In the event the suit is decreed then his client will get lease for which an application has been made and the same is kept pending. This application cannot be disposed of in view of the pendency of the suit and for the existence of the decree and the conveyance which are challenged in the suit.

( 5 ) MOREOVER, he has drawn my attention to the various orders of the Supreme Court whereby the clients right, and interest are said to have been recognised so much so he canparticipate in the hearing of the suit. Unless his client is allowed to examine the witnesses of both the parties, his right as well as the interest cannot be established or protected by this Court.

( 6 ) HAVING heard the respective contentions of the learned Counsels, I am to decide whether pro forma defendant, who has sided with the plaintiff, can be allowed to examine any of the witnesses either friendly or adversely or not. It is to place on record that Mr. Dass client has not filed any written statement admittedly. Therefore, this Court is unable to understand his clients right, and interest in the suit. His client is depending on establishment of right, title and interest of the plaintiff alone and as such he is supporting the case of the plaintiff. Mr. Das of course has drawn my attention to the Issue No. 4, which reads as follows : 4. Is the defendant No.