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2017 Supreme(Del) 594
IN THE HIGH COURT OF DELHI AT NEW DELHI
JAYANT NATH, J.
Bhajinder Singh - Petitioner
Versus
Hardev Singh & Ors. - Respondents
CM(M) 187 of 2017 & CM Appl. Nos. 6208-6209 of 2017
Decided On : 17-02-2017
For the Petitioner: Mr. Kunal Kalra
For the Respondents: Mr. Rajan Tyagi, Mr. Mandeep Arora
The need for ample opportunity to cross-examine when allegations are made against a party.
Headnote:
Cross-Examination - Civil Procedure - Indian Evidence Act, 1872, Sections 137, 138
Fact of the Case:
The petitioner sought to impugn the order dismissing their application to cross-examine a witness of the South Delhi Municipal Corporation in a suit for injunction.
Finding of the Court:
The court allowed the petitioner to cross-examine the witness, noting that the delay in seeking cross-examination was not substantial and directing the trial court to dispose of the matter within nine months.
Issues: Impugning the order dismissing the application for cross-examination, delay in seeking cross-examination, and expeditious disposal of the matter.
Ratio Decidendi: The court held that the cross-examination is to be done by an adverse party and allowed the petitioner to cross-examine the witness, emphasizing the need for ample opportunity to cross-examine when allegations are made against a party.
Final Decision: The court allowed the petitioner to cross-examine the witness and directed the trial court to dispose of the matter within nine months.
Jayant Nath, J.
CM APPL. No. 6208/2017(exemption)
Allowed subject to all just exceptions.
CM(M) No.187/2017 & CM APPL. No. 6209/2017(stay)
1. By the present petition filed under Article 227 of the Constitution of India, the petitioner seeks to impugn the order dated 06.06.2016 by which an application filed by the petitioner seeking permission to cross-examine DW2 the witness of the South Delhi Municipal Corporation (hereinafter referred to as the ‘SDMC’) was dismissed.
2. Respondent No.1 has filed the present suit for permanent and mandatory injunction to restrain defendant No.1/petitioner from encroaching upon Municipal Park, sewer of defendant No.2, MCD and MTNL Box by constructing a boundary wall around the same.
3. A perusal of the written statement of the SDMC would show that essentially the SDMC is supporting the case of the plaintiff/respondent No.1. The SDMC has confirmed that the petitioner has encroached the Municipal/Government open land by constructing boundary wall and pakka construction around the same etc. DW-2 Sh. G.P. Sharma, had also deposed on the same line.
4. The trial court by the impugned order dismissed the application of the petitioner seeking to cross-examine DW-2 Sh. G.P. Sharma noting that the petitioner has moved the present application after examination of DW-2 was completed and therefore, the application has no merit. It also noted that the matter is lingering on since 2012 for final argument and the reason has been unnecessary delaying tactics of the petitioner.
5. I have heard the learned counsel for the parties.
6. An advance copy of the petition has been sent to the respondents and their respective counsel. The learned counsel for respondent No.2/SDMC has appeared.
7. Sections 137 and 138 of the Indian Evidence Act, 1872 read as follows:
“137. Examination-in-chief.-The examination of a witness by the party who calls him shall be called his examination-in-chief.
Cross-examination. - The examination of a witness by the adverse party shall be called his cross-examination.
Re-examination. - The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.
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) reexamined.
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.”
8. Hence, what these sections provide is that the cross-examination is to be done by an adverse party. In the present case, the adverse party is the petitioner as the SDMC is supporting the case of respondent No.1/plaintiff. The cross-examination by respondent No.1 of the witness of the SDMC would not have much relevance.
9. Reference may be had to the judgment of the Karnatka High Court in the case of M/s Ennen Castings Private Limited (in liquidation), Rep. by Official Liquidator, Bangalore v. Sundaresh & Ors., AIR 2003 Kar 293, where the court held as follows:
“10. Though there is no specific provision in the Indian Evidence Act providing for such an opportunity for a defendant-respondent to cross-examine a co-defendant/co-respondent, however, having regard to the object and scope of cross examination, it is settled law that when allegations are made against the party to the proceedings, before that evidence could be acted upon, that party should have an ample opportunity to cross-examine the person who had given the evidence against him. It is only after such an opportunity is given, and the witness is cross examined that evidence becomes admissible. In
