The main legal point established in the judgment is the order in which cross-examination should be conducted based on the support of the defendants to the plaintiff's case.

MANMOHAN SINGH, J.

1. By this order, I propose to decide the present application filed by the plaintiff under Section 151 CPC for expunging/deleting the cross-examination of DW-1 and DW-2 by the defendant No.3.

2. In the present suit, the defendant No.4 was examined and discharged, vide order dated 13.11.2011. Admittedly, DW-3 tendered his evidence by way of affidavit as Ex.DW-3/A before the Joint Registrar on 19.04.2011. His cross-examination was deferred at the request of the learned counsel for the plaintiff. After examination of DW4, when DW-3 was present on 30.11.2011, a statement was made by the learned counsel for the plaintiff that he would cross-examine this witness after the cross-examination by defendants No.1 and 2. Thereafter, the matter was listed before Court to resolve the said controversy.

3. Few facts as per plaintiff’s averments are that the defendants No.1 and 2 agreed to sell the suit property to the plaintiff for a sum of Rs.3,22,50,000/-. Certain payments were made and agreement to sell was executed on 21.03.2004. The time period for the performance of the terms of the agreement to sell dated 21.03.2004 was up to 15.05.2004. Later on, the plaintiff received a letter dated 21.04.2004 from the defendants No.1 and 2 whereby they cancelled the said agreement to sell dated 21.03.2004 and it was transpired that the said suit property was sold to the defendant No.3 vide registered Sale Deed dated 21.04.2004.

4. The case of the defendants No.1 and 2 is that the plaintiff was not ready and willing to perform his part of the agreement and he in fact wanted to sign a new Sale Agreement for a Rs.2 crores through cheque and rest of the money was not shown towards the sale of property. The agreement to sell was cancelled under these circumstances by the defendants No.1 and 2. They submit that the sale deed dated 21.04.2004 is a valid and legal document and the suit property was validly sold to defendant No.3.

5. The case of the defendant No.3 is that he is a bona-fide purchaser without having knowledge of a valid and subsisting agreement to sell.

6. The issues in the above said matter were framed on 29.08.2005. The plaintiff led his evidence. The evidence by the plaintiff was completed on 30.03.2009 and thereafter, the defendants No.1 and 2 led their evidence. The case of the plaintiff is that the defendants No.1, 2 and 3 are not adversaries as required under Section 137 of the Indian Evidence Act, 1872, and therefore, the defendants have no right to cross-examine inter-se. They are supporting each other and have common case.

7. It is also the contention of the plaintiff that the defendant No.3 ought to have cross-examined the defendants No.1 and 2 before the plaintiff had proceeded to cross-examine the said witnesses. (In the present application, there are two prayers namely

(a) that the cross-examination of defendants No.1 and 2 already conducted by the defendant No.3, after the cross-examination by the plaintiff, be expunged and deleted

(b) that the defendant No.3, who is now to be cross-examined, first be cross-examined by the defendants No.1 and 2 and prior to cross-examination of the plaintiff.) Mr Vashisht on the last date of hearing, i.e., 21.03.2012, had agreed that as far as first prayer is concerned, he is not pressing it at this stage. The same may be considered at the time of final stage of the suit in accordance with law. But, cross-examination of defendant No.3 is yet to be conducted by the parties, therefore, the plaintiff be permitted to cross-examine the defendant No.3 after the cross-examination by the defendants No.1 and 2.

8. The learned counsel for the defendant No.3 as well as defendant Nos. 1 and 2 submits that the procedure earlier adopted with regard to the cross-examination of DW1 and DW-2 be followed in the same manner. It is also submitted that earlier no such objection was raised by the plaintiff. Defendant No.3 has also denied the contentions raised by the plaintiff. According t