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2020 Supreme(MP) 52
IN THE HIGH COURT OF MADHYA PRADESH
Nandita Dubey, J.
Akhilesh Singh v. Krishan Bahadur Singh & Others
Writ Petition No. 10710 of 2017 (Jabalpur);
Decided on 8.1.2020
Abhishek Singh for petitioner; D. D. Bhave for respondent No. 1.
Headnote:
Civil P. C., 1908 -- O. 18 R.17 -- Evidence Act, 1872 -- Ss. 137 and 138 -- right of co-defendant to cross-examine other defendant -- no evidence should be received against one who had no opportunity of testing it by cross-examination -- it would be unjust and unsafe not to allow co-accused or co-defendant to cross-examine witness called by one whose case was adverse to him or who had given evidence against him. AIR 2007 Del. 105, AIR 2003 Kar. 293 and 2018 (1) MPWN 118 relied on. (2009) 4 SCC 410 distinguished. AIR 1975 Del. 109 and AIR 1978 P & H 319 referred to. [Para 12
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ORDER
1. A suit was filed for specific performance of agreement dated 17.1.2017 and declaring the sale deed dated 15.3.2013 and 17.4.2013 executed in favour of defendants No.4 and 5 to be null and void to the extent of 25% share of plaintiff and permanent injunction against the defendants. The petitioner herein is the original defendant No. 6. He moved an application under Order 18 rule 17 of the Code Civil Procedure, 1908, seeking recall of DW1 for his cross-examination by defendant No. 6, as according to the petitioner, defendant No.1 (DW1) has given the statement contrary to his affidavit and the same is against the interest of defendant No. 6’s claim and would have adverse effect on his case.
2. The application is opposed by respondent No.1/plaintiff.
3. The sum and substance of the objection was that one co-defendant cannot be permitted to cross-examine the other defendant. It was further objected that the provisions under Order 18 rule 17 of the CPC would not be applicable in the present case.
4. Upon hearing the parties, the trial Court declined the prayer in terms of the impugned order dated 3.7.2017 mainly for the reason that defendant No. 6/petitioner was not prompt in filing the application and as the aforesaid provision of the Code is not attracted.
5. Learned counsel for the petitioner submits that the right of petitioner to cross-examine the defendant No. 1 cannot be shut out specially when defendant No.1 has given statement adverse to the interest of the petitioner. Reliance is placed on 2007 AIR (Del) 105 Saroj Bala v. Dhanpati Devi, 2003 AIR (kar) 293 Ennen Castings Pvt. Limited (In Liquidation): Y.R. Nagabhushan v. M.M. Sunderaseh Ennen Castings Pvt. Limited (In Liquidation) and 2018(1) MPWN 118 = 2018 (4) MPLJ 74 Shiv Pratap singh Tomar v. Seema Tomar and others.
6. Per contra learned counsel appearing for respondent No.1 has contended that in law, a co-defendant has no such right to cross-examine the witness produced by other defendant. It is further argued that the provisions of Order 18 rule 17 of the CPC is not applicable. Reliance is placed on (2009)4 SCC 410 Vadiraj Naggappa Vernekar (dead) Through LRs. v. Sharadchandra Prabhakar Gogate.
7. In order to appreciate the controversy, it is necessary to re-produce the relevant provisions, which reads as under :
Order XVIII rule 17 of Code of Civil Procedure 1908 “Court may recall and examine witness”
“The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit.”
Section 137 of Evidence Act “Examination in chief”
The examination of a witness by the party who calls him shall be called his examination in-chief.
Cross-examination- The examination of a witness by the adverse party shall be called his cross-examination.Re-examination- The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.
Section 138 of Evidence Act “Order of examinations”
Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.
The examination and cross- examination must relate to relevant facts but the cross - examination need not be confined to the facts to which the witness testified on his examination-in-Chief.
Direction of re-examination - The re-examination shall be directed to the explanation of matters referred to in cross5 examination ; and , if new matter is, by permission of the Court, introduced in-re-examination, the adverse party may further cross-examine upon that matter.
8. In the case of Saroj Bala (supra), the Court has relied on the decision in the case of AIR 1975 Delhi 109 Mrs. Dev Raj Chopra v. Puran Mal and others and AIR 1978 Punjab and Haryana 319 Sandhu Singh v. Sant Narain Singh Sewadar and others, wherein the question of rights of one of the defendants to cro
