The fundamental right of cross-examination and the need to afford an opportunity for cross-examination to ensure fair trial.

JAYANT NATH, J.

1. By the present petition the petitioner seeks to challenge the order dated 2.7.2016 by which an application under Section 114 CPC for recalling earlier order dated 14.5.2016 was dismissed. By the said order dated 14.5.2016 the trial court had rejected the request of the petitioner to cross-examine Objector Mr. Aswal Vaderaa on the ground that the petitioner has not filed any objections to the petition and, therefore, would not have a right to cross-examine objector No. 1.

2. The disputes are regarding the Will of late Smt. Karuna Raj Vaderaa dated 5.2.2003. Respondent No. 2 is stated to have been appointed Executor of the Will and has filed the present Probate Petition. Respondent No. 3 the elder brother of the petitioner is the only objector of the Will. None of the other respondents or petitioners have filed objections.

3. Learned counsel appearing for the petitioner has vehemently argued that the petitioner could not have been denied the right to cross-examine the witness of the Objector. He submits that even otherwise the said witness has in his evidence made allegations against the petitioner and petitioner would have a right to cross-examine the said witness. He relies upon judgment of this Court in the case of Des Raj Chopra and Others vs. Pooran Mal and Others, AIR 1975 Delhi 109; judgment of a Division Bench in the case of Shahid Balwa vs. The Directorate of Enforcement, 2013 (201) DLT 211 and of Jammu and Kashmir High Court in Dwarka Dass and Others vs. State and Others, 1979 Crl. L.J. 550.

4. Learned counsel for the petitioner further submits that the petitioner had been allowed to cross-examine PW-1 who was a witness produced by the petitioner before the trial court. Hence, it is urged that even on that occasion the petitioner was standing in the same capacity as he was when the impugned order was passed.

5. Learned counsel appearing for respondent No. 3 has opposed the present petition. He submits that the petitioner has not filed any objections on record. There is even no reply to the averments which according to the petitioner have been made against him by the witness of respondent No. 3. In the absence of either a reply or objection he submits that there is no mechanism to control the cross-examination that the petitioner may indulge in. Hence, he submits that the petitioner has no right to cross-examine the said witness. He submits that in fact the petitioner never moved an application for cross-examination of the witnesses. They merely made an oral request which the trial court rightly refused.

6. Section 138 of the Indian Evidence Act reads as follows:-

“138. Order of examinations

Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.

The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-Chief.

Direction of re-examination - The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in-re-examination, the adverse party may further cross-examine upon that matter.”

7. Section 138 of the Evidence Act provides for cross-examination by an adverse party. The issue however is, can a defendant/respondent supporting the plaintiff/petitioner be allowed to cross-examine a witness of a co-defendant who is opposing the case of the plaintiff?

8. Reference may be had to the judgment of this court in the case of Des Raj Chaudhary and Puran Mal and Others (supra), wherein the court held as follows:-

“(13) In Phipson on Evidence (Eleventh Edition, Page 647) it is stated that a defendant may cross examine a co-defendant or any other witness who has given evidence against him and reply on such evidence, though there is no issue joined between them.

(14) Any party is entitled to cross examin