Co-defendants in a civil suit have the right to cross-examine witnesses to ensure fair trial rights are upheld.

Judgment

Ms. Amarjot Bhatti, J. (Oral):- The petitioner/plaintiff has filed civil revision under Article 227 of the Constitution of India for setting aside order dated 27.02.2023 (Annexure P-11) passed by learned Additional Civil Judge (Sr. Divn.), Mansa in Civil Suit No.338/2017, dated 05.08.2017 whereby the application filed by respondent Nos.1 and 3 i.e. defendant Nos.4 and 6 has been allowed to cross-examine Maghar Singh DW1 i.e. respondent No.4/defendant No.1 being illegal against the law and the facts of the case.

2. Learned counsel for the petitioner argued that the petitioner/plaintiff has filed civil suit against the respondents seeking possession and declaration on the basis of lease deeds which were got cancelled by defendant Nos.1 and 2 by cancellation deed being illegal liable to be set aside. A copy plaint is Annexure P-3. The suit was contested by defendants. The defendant Nos.1 and 2 filed their joint written statement which is Annexure P-4 and defendant Nos.4 and 6 also filed their separate written statement which is Annexure P-5 and the other defendants were proceeded against ex-parte. The issues were framed as per order dated 22.01.2019 which is Annexure P-6 and the case was fixed for plaintiff’s evidence. The plaintiff examined Sukhwinder Singh as PW1 who was cross-examined by aforesaid two sets of defendants. The copy of cross-examination of Sukhwinder Singh PW1 is Annexure P-7. After the closing of plaintiff’s evidence, the defendants examined Maghar Singh as DW1 who was cross-examined by the counsel for the petitioner/plaintiff. Copy of cross-examination of Maghar Singh is Annexure P-8. After the cross-examination of Maghar Singh DW1, an application was filed by defendant Nos.4 and 6 seeking permission to cross-examine this witness. Copy of application is Annexure P-9. Application was contested by the petitioner/plaintiff by filing reply dated 23.02.2023 which is Annexure P10 and by passing impugned order dated 27.02.2023, Annexure P-11 the same was allowed and permission was given to defendant Nos.4 and 6 to cross examine Maghar Singh DW1. It is argued that in-case the defendant Nos.4 and 6 wanted to cross-examine Maghar Singh DW1 then they should have cross-examine him prior to the cross-examination of present petitioner/plaintiff. Now at this stage, the respondent/defendant Nos.4 and 6 cannot be permitted to cross-examine Maghar Singh DW1. To support his arguments, learned counsel for the petitioner has relied upon the authority cited in 2013 (1) CivCC 679 titled as Mohinder Singh Gill Vs. Jagdeep Singh and others where in that case it was concluded that ‘cross examination of defendant by another defendant can be permitted only when co-defendant has pleaded or stated something against another defendant, the co-defendant would have a right to cross-examine the other.’ However, in order to protect the right of plaintiff, the co-defendants would be allowed and directed to conduct inter-se cross-examination prior to the plaintiff so that they may not demolish the case of plaintiff by putting leading question to each other. It is pointed out that once Maghar Singh DW1 has been cross-examined by the plaintiff now the defendant Nos.4 and 6 cannot be permitted to cross-examine the said witness. The aforesaid factual position has not been appreciated rightly by the Court of Additional Civil Judge (Sr. Divn.), Mansa and they have been wrongly afforded an opportunity to cross-examine Maghar Singh DW1 by passing impugned order dated 27.02.2023 (P-11). It is prayed that the aforesaid order may kindly be set aside by accepting the present civil revision.

3. On the other hand, learned counsel for the respondent Nos.1 and 2 pointed out that perusal of written statement filed by defendant Nos.1 and 2 would show that they have supported the case of the plaintiff by admitting the contents of the plaint. In-fact it is the defendant Nos.4 and 6 i.e. respondent Nos.1 and 3 who are opposing the suit filed by the petitioner/