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2010 Supreme(Del) 1233
IN THE HIGH COURT OF DELHI AT NEW DELHI
V.K.Shali, J.
Sarabjit Singh - Appellant
Versus
Gurinder Singh Sandhu - Respondent
CS(OS) No. 642/1993
Decided On : 09-11-2010
Ms. S.K. Sharma, Advocate for the Plaintiff.
Ms. J.K. Seth, Sr. Adv. with Ms. Shalini Kapoor, Advocate for the Defendant No. 1.
Ms. I.S. Alag, Adv. for the Defendants No. 2, 3 & 5.
Headnote:
Civil Procedure Code, 1908-Order 16 Rules 7 & 20 – Suit for partition – Order in which the cross-examination of the plaintiff's witnesses is to be conducted – Defendants into three categories : firstly those who are supporting the case of the plaintiff fully, secondly those who are partially supporting the case of the plaintiff and thirdly those who are not at all supporting the case of the plaintiff – Classification of the defendants in the aforesaid three categories must regulate the cross examination of the plaintiff's witness.
Certainly. Based on the provided legal document, here are the key points:
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The order of cross-examination of the plaintiff's witnesses should be guided by the classification of defendants into three categories: those fully supporting the plaintiff's case, those partially supporting it, and those not supporting it at all. This classification determines the sequence in which cross-examination should occur (!) .
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Defendants who support the plaintiff's case, either fully or partially, are entitled to cross-examine the plaintiff's witnesses before the defendants who oppose the plaintiff's case. This order is intended to prevent prejudice and ensure fairness in the examination process (!) (!) (!) .
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The rationale behind this order is that defendants supporting the plaintiff are not considered adverse parties in the same sense as those opposing the case. Therefore, allowing them to cross-examine first preserves the integrity of the cross-examination process and avoids filling gaps that could prejudice the opposing party (!) (!) .
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The classification of defendants into these categories is essential for determining the sequence of cross-examination, and this approach is supported by relevant judicial reasoning emphasizing fairness and procedural order (!) (!) .
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The scope of cross-examination is broad, including the ability to challenge a witness’s character and credibility, and leading questions are permitted. This wider scope underscores the importance of the proper order of cross-examination to prevent prejudice (!) .
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The court has the discretion to direct the sequence of cross-examination based on the support or opposition of defendants to the plaintiff's case, aiming to uphold procedural fairness and prevent any party from gaining an undue advantage (!) (!) .
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In the specific case discussed, defendants supporting the plaintiff (defendants No. 3 and 4) are to cross-examine the plaintiff’s witness first, before the defendant opposing the case (defendant No. 1), to ensure a fair and balanced examination process (!) .
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The court’s decision on the order of cross-examination is based on principles of fairness and the classification of support/supporting roles, rather than any final judgment on the merits of the case (!) .
Please let me know if you need a more detailed analysis or assistance with related legal questions.
V.K. Shali, J.
1. 17 years have gone by and still the Court is faced with the question as to which of the defendants should cross examine the PW-1, the only witness whose examination-in-chief has been completed. In order to appreciate the point in issue, it is necessary to give brief facts of the case.
2. A suit for partition came to be filed by the plaintiff against her brother (D-1), sisters (D-2 to 4) and husband of defendant No. 2 (D-5). The centre of controversy was the properties left by one Lt. Col. Gurpuran Singh, father of the plaintiff and the defendants No. 1 to 4. He is stated to have died at Delhi on 13th April, 1992. From the list of properties, Late Lt. Col. Gurpuran Singh seemed to be a man of means as he even owned a Rolls Royce car. The claim of the plaintiff was that she has 1/5th share in the estate of the Late Lt. Col. Gurpuran Singh on the basis of the Will dated 4th March, 1992 purported to have been made by him.
3. The defendant No. 3 filed her written statement and had not specifically denied the execution of the Will dated 4th March, 1992 purported to have been made by her father. However, she took the stand that one of the properties, which was huge agricultural land, was given to her by the deceased father vide Will dated 29th January, 1982. Thus, the defendant No. 3 had partially supported the case of the plaintiff except that she wanted the agricultural land be taken away from the arena of controversy.
4. The defendant No. 4 has also admitted the Will dated 4th March, 1992 as the basis of partition.
5. The defendant No. 1 has denied the execution of both the Wills dated 29th January, 1982 in favour of defendant N o. 3 or the Will dated 4th March, 1992 on the basis of which the plaintiff laid her claim. It may be pertinent here to mention that defendant No. 1 is the real brother of the plaintiff. The suit itself was filed in the year 1993 and issues have been framed on 24th July, 2008. Affidavit of PW-1, the sole witness has been tendered in examination and the witness was to be cross examined by the defendants at which stage the controversy arose as to who is to cross examine the said witness first.
6. The case of the defendant No. 1 was that the defendant No. 3 and other defendants who are supporting the case of the plaintiff either fully or partially must be directed to cross examine the witness first and thereafter the defendant No. 1 will cross examine the said witness. Sh. J.K.Seth, learned senior counsel on behalf of the defendant No. 1 had contended that in case the aforesaid order is not followed, it would only give an opportunity to the defendants No. 2 to 4 to fill up the lacunae which may be brought about by the cross examination of defendant No. 1 and thus would prejudicially affect the case of the defendant No. 1 whose interest is totally adverse to that of the plaintiff. The learned senior counsel in support of his contention has relied on judgments titled Shah Hiralal Himatlal & Ors. v. M.G. Pathak & Ors., AIR 1964 Gujarat 26, M. Hymavathi & Anr. v. M. Koteswararao & Ors., AIR 2006 AP 395 and Sunil Chhatrapal Kedar v. Y.S. Bagde, 2004 MHLJ 4 620.
7. The aforesaid three authorities which have been cited by the learned senior counsel essentially support the contention that the defendant who is supporting the case of the plaintiff partially or fully must be directed to cross examine the witness of the plaintiff first in comparison to a defendant who is contesting the claim of the plaintiff.
8. Ms. Alag, learned counsel for defendant No. 3 has refuted this contention of the learned senior counsel by contending that the defendant No. 3 is not supporting the case of the plaintiff either partially or fully which may entail passing of a direction to defendant No. 3 to cross examine the plaintiff first in comparison to the defendant No. 1. The learned counsel had drawn the attention of the Court to his written statement in order to show that one of the properties in respect of which partition is sou
