RAJINDAR SACHAR, J.

( 1 ) THIS is a petition under Article 227 of the Constitution of India against the order of the Additional Rent Controller, Delhi dated 16th of July, 1974 by which he refused permission to the petitioners to cross examine witness by respondent No. 3 the New Super Consumer Co-operative Stores (hereinafter called the Store ).

( 2 ) RESPONDENT No. 1 is the landlord of premises in dispute. He has filed an eviction application on the allegation that the premises were originally let to Ram Swarup respondent No. 2 who has sublet and parted with possession to one Des Raj (who was predecessor in interest of the petitioners being the husband of the petitioner No. 1 and the father of the petitioner No. 2 to 4. It was also alleged that premises were subsequently collusively sub-let to Respondent No. 3 the stores and that the store is running its business there. As no consent has been given in writing by the landlord, the Stores as well as other persons are liable to be evicted.

( 3 ) IN the written statement filed by the petitioners sub-tenancy has been denied. It is stated that the tenant was a firm of Ram Swarup and Co. of which their predecessor Desraj was a partner. It is also alleged that the store has been accepted as a direct tenant and landlord also received rent from the said tenant.

( 4 ) THE store Respondent No. 3 has also filed a separate written statement and has taken the plea that it is a direct tenant under the landlord and has independent title as a tenant and Ram Swarup has got nothing to do with the tenancy.

( 5 ) THE written statements by the petitioners and respondent No. 3 have been filed separately through separate advocates. Evidence was led by the petitioners; its witnesses were either cross-examined or opportunity given for cross examination by respondent no. 3, without any objection having been raised by the respondent No. 1, landlord. Thereafter the store produced its witnesses, and the last witness produced was R. W. 7 Birdi Chand. Prior to the examination of the said witness in the court, the petitioner had given notice for production of the accounts books of the stores. It appears that the petitioners wished to show from the cross examination, of the witnesses with reference to the books that the store was accepted as a direct tenant by the landlord, and the various entries in the books are supposed to support the case of the petitioners. This was so stated by the counsel for the petitioners. But when R. W. 7, the witness of stores was sought to be cross examined by the counsel for the petitioner, it was opposed by the counsel for the landlord. The Additional Rent Controller by the impugned order accepted the plea of the landlord and has disallowed the petitioner from cross examining the witness produced by the Stores. Aggrieved against this order the petitioners have moved this application under Article 227 of the Constitution.

( 6 ) THE main ground on which the Additional Rent Controller has refused to grant permission to the petitioners to cross examine the witness is that as the defence of the petitioners as well as the stores is identical, the said rights cannot be exercised by the petitioners as their rights cannot be said to be in any way adverse to that of the respondent No. 3.

( 7 ) SECTION 137 of the Indian Evidence Act, 1872 describes that the examination of a witness by the adverse parties shall be called cross examination. Mr. Jain the learned counsel for the respondent maintains that as the interests of the petitioners are not averse to that of respondent No. 3, Stores, no right of cross-examination can be exercised by the petitioners.

( 8 ) IT may be noted that though undoubtedly the petitioners as well as respondent No. 3 have taken the stand that respondent No. 3 is the direct tenant of the landlord and to that extent this defence and plea is common to both of them. But it does not mean that their interests are totally common in the sense that whatever the decision on th

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