The right to cross-examine a witness is confined to a party with adverse interest as per the provisions of the Indian Evidence Act, and this principle applies even in a suit for partition where all parties are not necessarily adverse to each other.

JUDGMENT

(Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the order passed in memo dated 04.09.2015 filed by the plaintiff / first respondent in O.S.No.172 of 2010 on the file of the I Additional District Judge (PCR), Thanjavur.)

This Civil Revision Petition is filed against the order passed in Memo dated 04.09.2015 filed by the plaintiff / first respondent in O.S.No.172 of 2010 on the file of the I Additional District Judge (PCR), Thanjavur. For the sake of convenience, the parties herein are referred to as arrayed in O.S.No. 172 of 2010.

2. The revision petitioner herein is the fourth defendant in the said Memo. The suit in O.S.No.172 of 2010 was one for partition. After the filing of proof affidavit of examination-in-chief by the third defendant, a Memo was filed by the first respondent / petitioner / plaintiff stating that, the ''third defendant'' is the wife of the fourth defendant. Though they have filed separate written statements, they have no conflicting interest adverse to each other. They do not make any claim against each other as well. The written statement filed by both of them are one and the same and in the said circumstances under Section 137 of the Indian Evidence Act, 1872 an ''adverse party'' alone can cross-examine any witness. Admittedly the fourth defendant and the third defendant who are husband and wife are not adverse to each other and hence, the fourth defendant has no right to cross-examine the third defendant. If he is allowed to examine, his examination may nullify the adverse party''s cross-examination.

3. Refuting the same, the revision petitioner filed an objection that, in a suit for partition, there is no plaintiff or defendant, all are plaintiffs and so the plaintiff is not supposed to curtail the stand of others, as each and every party would like to establish their stand. The learned Trial Court on appreciation of both the parties, passed an order in the said Memo. In the order in Memo of O.S.No.172 of 2010, the relevant portion of which is extracted as follows:

“In this case, the Counsel for the plaintiff contended that the third defendant and fourth defendant are having similar interest and their interest are not adverse to each other. On careful perusal of the pleadings of third defendant and the fourth defendant this Court found that the third defendant and fourth defendant are not having any interest adverse to each other. Though the learned Counsel for the fourth defendant contended that the non permitting fourth defendant to cross examine third defendant would tantamount to denial of opportunity in a suit for partition where all are plaintiffs and all are defendants. It is not the case of the fourth defendant that he is also one of the co-sharer. According to him, his wife the third defendant settled her properties in his name. Further it is not the case of the fourth defendant that the third defendant is colluded with plaintiff. Hence, this Court is of the considered view that the fourth defendant has no right to cross-examine the third defendant as the fourth defendant has no adverse interest as against the third defendant. Accordingly, this Court decides that the fourth defendant shall not be permitted to cross-examine third defendant.”

As against the said order, this Civil Revision Petition is filed.

4. Heard the arguments of both the learned Counsels for the petitioner as well as the first respondent anxiously and perused the materials available on records.

5. The learned Counsel for the petitioner took me through the various grounds of the Civil Revision Petition and the contents of the documents which he relied. The learned Counsel for the first respondent vehemently contradicting each and every argument of the revision petitioner pressed for dismissal of this Civil Revision Petition.

6. The pertinent question to be decided in the facts and circumstances of this case, is that, whether a party without any adverse interest