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1978 Supreme(P&H) 85
PUNJAB & HARYANA HIGH COURT
J.M.Tandon, J.
Sadhu Singh
Versus
Sant Narain Singh Sewadar
Civil Revision No. 1015 of 1976,
Civil MISCELLANEOUS No. 1049/CII of 1977,
Decided On : MAY 12, 1978
Parties arrayed as defendants in a suit, having taken contradictory stands on a relevant and material issue, shall be adversary to each other and entitled to exercise their right of cross-examination against each other.
Headnote:
EVIDENCE ACT - SECTION 138 - CROSS-EXAMINATION OF CO-DEFENDANT - RIGHT OF - ADVERSE PARTY - INTERPRETATION - COURT HELD THAT SADHU SINGH, DEFENDANT-PETITIONER, HAD A RIGHT TO CROSS-EXAMINE HIS CO-DEFENDANT INDER SINGH AND IT WAS WRONGLY DISALLOWED BY THE TRIAL COURT.
Fact of the Case:
Sadhu Singh, defendant-petitioner, filed a revision petition challenging the order of the trial court declining his prayer to cross-examine his co-defendant Inder Singh, since dead. The dispute was about the management of a religious institution known as Gurdwara Nanaksar. Sant Narain Singh, plaintiff, claimed to be the validly appointed Mohatmim of the Gurdwara, whereas Sadhu Singh claimed that he was the only person entitled to succeed to the position of Mohatmim as he had done Hazoori (personal) service to the late Mohatmim Sant Ishar Singh.
Finding of the Court:
The court held that Sadhu Singh had a right to cross-examine his co-defendant Inder Singh as they were adverse parties to each other. The court observed that the stands taken by Sadhu Singh and the remaining defendants on the issue of Hazoori service being an essential ingredient for eligibility for appointment as a Mohatmim of the Gurdwara were contradictory and, therefore, they were adversary to each other.
Issues: Whether a defendant can cross-examine a co-defendant and his witnesses.
Ratio Decidendi: The court interpreted Section 138 of the Indian Evidence Act, which deals with the order of cross-examinations, and held that an adverse party has the right to cross-examine a witness. The court found that Sadhu Singh and the remaining defendants had taken contradictory stands on the issue of Hazoori service being an essential ingredient for eligibility for appointment as a Mohatmim of the Gurdwara, and therefore, they were adversary to each other.
Final Decision: The court allowed the revision petition and set aside the impugned order of the trial court. The parties were left to bear their own costs.
1. Whether a defendant can cross-examine a co-defendant and his witnesses is the sole point involved in this revision directed against the order of Shri N. D. Bhatara, Subordinate Judge 1st Class, Jagraon, dated 14.06.1976, declining the prayer of Sadhu Singh, defendant-petitioner, to cross-examine his co-defendant Inder Singh, since dead.
2. It is necessary for the proper appreciation of the point in issue to set out the facts of the case. The dispute is about the management of a religious institution known as Gurdwara Nanaksar situated in village Agwar Lopon Khurd, Tehsil Jagraon, District Ludhiana. Sant Ishar Singh was the last Mohatmim of the Gurdwara and he died in 1963. Sant Narain Singh filed a suit for declaration that he was a validly appointed Mohatmim of this Gurdwara having been nominated by the late Mohatmim Sant Ishar Singh in 1963 and unanimously approved and elected by the Sangat on 22-7-1971. It was alleged that there was no established custom or usage of this institution about the succession of the office of Mohatmim. Sant Ishar Singh had been nominated by the previous Mohatmim Baba Nand Singh and approved and elected by the Sangat. Sant Narain Singh thereby claimed to have become successor to Sant Ishar Singh for the management of the affairs of the Gurdwara and the property attached thereto. He further alleged that the Revenue authorities while sanctioning the mutation of the land attached to the Gurdwara constituted a Managing Committee including him and the defendants which they had no right to do. Sant Narain Singh, thus prayed for a declaration that he was the validly appointed Mohatmim of the Gurdwara and also for a permanent injunction restraining the defendants from interfering in any manner with his rights as Mohatmim for managing the affairs of the Gurdwara and the properties attached thereto.
3. The defendants who are the members of the Managing Committee, constituted to manage the Gurdwara, contested the suit. All the defendants, except Sadhu Singh, defendant-petitioner, filed a joint written statement, whereas Sadhu Singh filed a separate one. The defendants, except Sadhu Singh, denied that Sant Narain Singh was nominated as Mohatmim of the Gurdwara by Sant Ishar Singh or his nomination was approved by the Sangat. According to them, Sant Narain Singh being of doubtful reputation could not be appointed a Mohatmim of the Gurdwara. It was alleged that the Managing Committee had been controlling the affairs of the Gurdwara since after the death of Sant Ishar Singh and it was not constituted by the Revenue authorities. Sadhu Singh, defendant-petitioner, and not Sant Narain Singh, plaintiff, did Hazoori (personal) service to Sant Ishar Singh. It was, consequently, prayed that the suit of Sant Narain Singh be dismissed.
4. Sadhu Singh, defendant-petitioner. In a separate written statement also denied that Sant Narain Singh, plaintiff, had been nominated as Mohatmim by Sant Ishar Singh or his nomination was approved by the Sangat. According to him, Hazoori service was a necessary qualification for being appointed a Mohatmim of the Gurdwara. He was the only person who had done such service to Sant Ishar Singh. He was, accordingly, the only person entitled to succeed to the exalted position of Mohatmim of the Gurdwara. He, as well, prayed that the suit of Sant Narain Singh, plaintiff, be dismissed.
5. On the pleadings of the parties the trial Court framed issues. For the purpose of this revision only issue No. 4 (reproduced below) is relevant :-
Issue No. 4 : What are the usages and customs for the appointment of Mohatmim of Gurdwara Nanaksar?
6. The plaintiff having concluded his evidence in the affirmative, the defendants started leading their evidence in the trial Court. Inder Singh, defendant, appeared as a witness to support his case, Sadhu Singh, defendant-petitioner, desired to cross-examine him. The trial Court vide order dated 14th of June, 1976, did not concede to his request. He has, co
