Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2017 Supreme(P&H) 1603

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
ANIL KSHETARPAL, J.
Pardeep @ Parmod - Appellant
Versus
Poonam and others - Respondents
RSA No.2122 of 2017 (O&M)
Decided On : 11-09-2017

Advocates Appeared:
For the Appellant :Mr. Ajay Jain, Advocate
For the Respondents:Mr. Vishal Garg Narwana, Advocate

The necessity for the Court to allow the opportunity for the contesting defendant to cross-examine the supporting defendant before using the statement against the contesting defendant.

Headnote:
Cross-Examination - Property Dispute - Opportunity for Cross-Examination of Supporting Defendant
Fact of the Case:

Plaintiffs, daughters of defendant No.1, filed a suit claiming that the property is coparcenary and the release deed in favor of defendant No.2 is against the law and result of misrepresentation and fraud.
Finding of the Court:

The Court found that the defendant No.1 supported the case of the plaintiffs, and the evidence was un-rebutted due to lack of opportunity for cross-examination by the counsel for defendant No.2. The Court held that the contesting defendant should have been given the opportunity to cross-examine the supporting defendant.
Issues: The main issue was the lack of opportunity for the contesting defendant to cross-examine the supporting defendant, leading to the setting aside of the judgments and decrees passed by the lower Courts.
Ratio Decidendi: Once a defendant supports the case set by the plaintiff, it is necessary for the Court to allow the opportunity for the contesting defendant to cross-examine the supporting defendant before using the statement against the contesting defendant.
Final Decision: The judgments and decrees passed by the lower Courts were set aside, and the case was remanded back to the trial Court to grant the opportunity for cross-examination. The Regular Second Appeal was allowed.

Judgement Key Points

Key Points: - The court held that a contesting defendant should be given the opportunity to cross-examine a supporting defendant before using the supporting defendant’s statement against the contesting defendant (!) (!) . - The lower court judgments and decrees were set aside due to lack of opportunity for cross-examination of the supporting defendant (!) . - The case was remanded to the trial court to grant the opportunity for cross-examination of the supporting defendant (defendant No.1) by the counsel for defendant No.2 (!) . - Regular Second Appeal was allowed and parties were directed to appear before the trial Court on 28.09.2017 (!) . - Defendant No.1 had supported the plaintiffs’ case; as a result, it was incumbent on the court to permit cross-examination of defendant No.1 by defendant No.2 (!) .

What is the necessity to permit cross-examination of a supporting defendant when the supporting defendant’s evidence is relied upon against the contesting defendant?

What is the remedy when a trial court fails to grant an opportunity for cross-examination to a contesting defendant?

What are the consequences for judgments and decrees if the contesting defendant is not afforded cross-examination of a supporting defendant?

JUDGMENT :

ANIL KSHETARPAL, J.

1. Defendant No.2 is in Regular Second Appeal against the concurrent findings of fact arrived at by the Courts below.

2. Plaintiffs namely daughters of Shri Ram-defendant No.1 had filed a suit for declaration and permanent injunction claiming that the property is a coparcenary property and the release deed executed by defendant No.1 in favour of defendant No.2, grandson of Shri Ram is against the law and result of misrepresentation and fraud.

3. Defendant No.1-Shri Ram, supported the case of the plaintiffs whereas defendant No.2 contested the suit.

4. Both the Courts have relied upon the un-rebutted evidence of the defendant No.1 on the ground that the he has not been cross-examined by the counsel for defendant No.2.

5. A look at the evidence would show that in fact the Court did not grant any opportunity to the counsel representing defendant No.2 i.e. contesting defendant, to cross-examine the defendant No.1.

6. Once defendant No.1 had supported the case of the plaintiffs and admitted the claim of the plaintiffs, it was incumbent upon the Court to allow the opportunity to the contesting defendant i.e. defendant No.2 to cross-examine defendant No.1. However, no such opportunity was given. Once a defendant supports the case set by the plaintiff, he in-fact partake the character of the plaintiff. Hence, it is necessary for the Court to give opportunity to the contesting defendant to cross-examine such defendant who is supporting the case of the plaintiff before using the statement against the contesting defendant.

7. In these circumstances, the judgments and decrees passed by the Courts below are set aside.

8. Case is remanded back to the trial Court to grant opportunity to the counsel for the defendant No.2 to cross-examine the defendant No.1.

9. Parties through their counsel are directed to appear before the trial Court on 28.09.2017.

Regular Second Appeal is allowed.

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