The main legal point established in the judgment is the right of a codefendant to cross-examine the other defendant's witnesses, as regulated by the provisions of the Evidence Act.

JUDGMENT :

Manoj K. Tiwari, J.

Heard Mr. S.K. Posti, Senior Advocate, assisted by Mr. Ashutosh Posti, Advocate for the petitioners.

2. Petitioners are defendants in Original Suit No. 33 of 1991, which was filed by Mr. Sri Niwas and others (proforma respondents herein) in the Court of learned Civil Judge (Junior Division), Haldwani, District Nainital. The said suit was dismissed by the trial Court, against which plaintiffs to the suit filed a Civil Appeal under Section 96 C.P.C. The Appellate Court remanded the matter to the learned trial Court vide order dated 09.07.2003.

3. After remand of the matter, evidence of the parties was led and, after conclusion of evidence, the defendant nos. 1 to 8 and 10 in the suit moved an application seeking permission to cross examine the witness produced by newly impleaded defendant, namely, Mr. Baleshwar Prasad. The said application was rejected by the learned trial Court vide order dated 04.04.2016. Defendant nos. 1 to 8 and 10 in the suit challenged the order dated 04.04.2016 by filing Civil Revision, which was registered as Civil Revision No. 43 of 2016, which was allowed by the Revisional Court i.e. 1st Additional District Judge Haldwani, District Nainital vide judgment and order dated 04.05.2017 and defendant nos. 1 to 8 and 10 were permitted to cross examine Mr. Baleshwar Prasad (D.W.1) and Mr. Bechan (D.W.2) subject to cost of Rs.1,000/-.

4. Pursuant to the order passed by Revisional Court, Mr. Baleshwar Prasad (D.W.1) and Mr. Bechan (D.W.2) were cross examined by defendant nos. 1 to 8 and 10. Thereafter, defendant Nos. 1 to 8 and 10 moved an application seeking permission to cross examine witnesses produced by Mr. Baleshwar Prasad (petitioner No. 2 herein), namely, Mr. Gama Prasad on the ground that there is conflict inter se between them and Mr. Baleshwar Prasad (petitioner No. 2 herein), therefore, his witness, Mr. Gama Prasad needs to be cross examined. The said application was rejected by learned trial court vide order dated 24.08.2017 on the ground that learned Revisional Court has granted permission to examine only two witnesses, namely, Mr. Baleshwar Prasad and Bechan, therefore, no third witness can be cross examined. The order passed by learned trial court was challenged by defendant Nos. 1 to 8 and 10 by filing Civil Revision No. 19 of 2018. The Revisional Court i.e. learned 1st Additional District Judge, Halwani, District Nainital vide judgment and order dated 24.04.2018 has allowed the said revision and permitted defendant Nos. 1 to 8 and 10 to cross examine Mr. Gama Prasad. Thus, feeling aggrieved, petitioners have invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India.

5. A short but important question that arises for consideration is whether a codefendant has right to cross examine the other defendant. No special provision is made in the Evidence Act for cross-examination of the co-accused's or co-defendant's witnesses. But the procedure to be adopted may be regulated by the well-known rule that no evidence should be received against any co-defendant or co-accused who had no opportunity of testing it by cross-examination; as it would be unjust and unsafe not to allow a co-accused or co- defendant to cross-examine a witness called by one whose interest was hostile to his own, or who has given evidence against him. If a co-defendant's interest is not hostile to that of the co-defendant, or if nothing has been said by the defendant to affect the interest of a co-defendant, there cannot be any right of cross-examination.

6. Hon'ble Karnataka High Court in the case of Sri Mohamed Ziaulla Vs Mrs. Sorgra and another, 1997 SCCOnline(Kar) 70, while dealing with the similar question has held as under:-

"6. It is undisputed that no special provision is made in the Evidence Act for cross examination of the co-accused or co-defendant's witnesses, the only relevant provision of law is Section 137 and 138 of the Evidence Act. Section 137 refers to ex