All parties to a suit have the right to cross-examine the witness produced by the other party, and the order of cross-examination by the party in the suit is the criteria.

Civil Revision Petition is filed to set aside the docket order dated 29.11.2016 made in I.A.No.1106 of 2016 in O.S.No.3 of 2013 on the file of the Principal District Court, Chengalpattu.

2. The petitioner is the plaintiff and the respondents are the defendants 2 and 3 in O.S.No.3 of 2013. The petitioner filed suit for three declarations, mandatory injunction and permanent injunction. The second respondent filed written statement on 01.09.2014 and first respondent filed written statement on 27.10.2014 and are contesting the suit. The petitioner let in evidence and closed her side. The first respondent was examined as D.W.1 by filing proof affidavit on 21.09.2016. The suit was posted for cross-examination of D.W.1 to 23.09.2016. The petitioner cross-examined D.W.1 on 23.09.2016 in part and the suit was adjourned to 30.09.2016 for further cross-examination of D.W.1. The second respondent, who is the second defendant in the suit, on verification, found that her cross-examination was closed on 23.09.2016 itself without giving any opportunity to her for cross-examining D.W.1. She filed the present I.A.No.1106 of 2016 to reopen the evidence of D.W.1 for the purpose of cross-examination on her behalf.

3. According to the second respondent, her advocate was held up in High Court on 23.09.2016 and he instructed one of the local advocates to represent the case, when it reaches. The said advocate could not appear, when the case was called and cross-examination on behalf of the second respondent was closed. According to her, being a party defendant, she is entitled to cross-examine D.W.1.

4. The petitioner filed counter affidavit and opposed the said application. According to the petitioner, the second respondent being the second defendant will put leading questions and fill up the lacuna and will try to undo the omissions and admissions of D.W.1. The second respondent is sailing with the first respondent and she is not adverse party and therefore, she is not entitled to cross-examine D.W.1. This Court directed the trial Court to dispose the suit on time frame and application for reopen is filed only to drag on the proceedings.

5. The learned Judge considering the materials on record, allowed the application by the order dated 29.11.2016 on the ground that evidentiary value of answers obtained by cross-examination of D.W.1 by second respondent has to be decided by the Court in the final disposal of the suit and to avoid further delay of trial, allowed the application and directed the second respondent to pay a sum of Rs.2,000/- as costs to the District Legal Services Authority on or before 08.12.2016.

6. Against the order dated 29.11.2016 made in I.A.No.1106 of 2016, the present Civil Revision Petition is filed by the petitioner.

7. Learned counsel for the petitioner submitted that the respondents are not adverse parties to each other and they are sailing together. As per Section 138 of Indian Evidence Act, only adverse party can cross-examine the other parties. The learned Judge having accepted the contention of the petitioner that the application is filed only to fill up lacuna erred in allowing the application, as though no prejudice will be caused to the petitioner.

8. The learned counsel for the petitioner relied on the following judgments in support of his contention:

(i) (2008) 3 MLJ 1068 (Vijaya v. Saraswathi and others), in para-8, it is held as follows:

“8. As pointed out earlier, if there is any conflicting interest between the petitioner herein, who is the fourth defendant in O.S.No.4 of 2005 and P.W.1, the plaintiff in O.S.No.7 of 2006, an opportunity should have been given to the petitioner herein to cross-examine P.W.1. But, since it is demonstrated that their interest is common and that there is no conflicting interest, the question of permitting the petitioner herein to cross-examine P.W.1 does not arise in any manner.”

(ii) AIR 2002 Calcutta 235 (State of W.B., Rama Devi and others), in para-13, it is held as follows:

“13. Ad