The main legal point established is that a defendant has the right to cross-examine a co-defendant only in the presence of conflicting interests or adverse statements.

M. JEYAPAUL, J.

1. The plaintiff aggrieved by the dismissal of the application filed by him to direct the second defendant to cross examine the 1st defendant first before ever he cross-examines the 1st defendant preferred the present revision.

2. The plaintiff has contended in the application that there is no conflict of interest inter se the defendants. Therefore, the second defendant has no right to cross-examine the first defendant. But in case the second defendant has proposed to cross-examine the first defendant, let him do so first in order to avoid demolition of cross-examination that would be conducted by the plaintiff.

3. The second defendant resisted the above plea of the plaintiff on the ground that the defendants had filed separate and non-identical written statements. The first defendant has filed elaborate written statement raising issues concerning both the plaintiff as well as the second defendant. Therefore, it is only the plaintiff who shall first cross-examine the first defendant before ever second defendant ventures to cross-examine the first defendant.

4. The trial Court having relied upon the decision of the Karnataka High Court in M/s Ennen Castings (P) Ltd. vs. M.M. Sundaresh and others, 2003(3) CCC 526 held that the plaintiff shall cross-examine the first defendant. If there is a conflict of interest between the co-defendants, a defendant would thereafter have an opportunity to cross examine the other defendant. Having thus held the trial Court directed the plaintiff to first cross-examine the first defendant. In case any conflicting version comes out during the course of cross-examination as against the interest of the second defendant, the second defendant would have the right to cross-examine the first defendant.

5. Learned counsel appearing for the revision petitioner/plaintiff would contend that the written statement filed by first and second defendants would go to show that they had no conflicting interest inter se as regards the pleadings set up by the plaintiff in the plaint. Therefore, the second defendant should first cross-examine the first defendant if at all he wants to cross-examine, of course, with the permission of the trial Court. The purpose of cross-examination of the plaintiff would be defeated, if the second defendant who has no clashing interest with the first defendant is permitted to wait till the cross-examination of the plaintiff is over and is thereafter permitted to cross-examine the first defendant.

6. Per contra, learned counsel appearing for the first and second defendants would submit that the first defendant should be cross-examined by plaintiff first in point of time and in case any conflicting interest surfaces during the course of such cross-examination, then the second defendant would have the right to cross-examine the first defendant. They also cited various decisions of this Court and the other High Courts in the country.

7. In the decision in Rajani Devi vs. Narottam Sahoo and others, 2001(1) CCC 380 (Orissa), the question whether the defendant has a right to cross examine a co-defendant has arisen for consideration. Under such circumstances, the Orissa High Court has held that the right of a defendant to cross-examine a co-defendant would arise only if a co-defendant takes a contrary stand on a relevant and material issue and he makes a statement prejudicial to the interest of a defendant.

8. This Court in Kartar Singh vs. Thakur Singh and others, 2002 (2) CCC 360 (P&H) held that a defendant has a right to cross-examine a co-defendant only to an extent of clashing of interest pleaded, set up and deposed to by the co-defendant.

9. In Saroj Bala vs. Dhanpati Devi and others, 2007(2) CCC 691 (Delhi), the Delhi High Court while dealing with an issue whether a defendant has a right to cross-examine the other defendant held that if the co-defendant had taken a contrary stand, the defendant has a right to cross-examine a co-defendant.

10. In Smt.Annapurna Devi vs