ORDER

1. This petition has been preferred under Article 227 of the Constitution of India against the order dated 5.1.2023 (annexure P-6) passed in Civil Suit No.14/11 by 3rd Civil Judge, Senior Division, Ratlam whereby the trial Court dismissed the application of the petitioner and respondent Nos.15, 17 and 18 filed under section 151 of CPC for grant of permission for crossexamination of respondent No.14.

2. Brief facts of the case is that respondent No.1 filed a civil suit for declaration, permanent injunction and other reliefs regarding 5 Bigha land of Survey No. 439 and 440, Village-Jaora, Distt. Raltam against the petitioner and other respondents (annexure P-1).The petitioner and respondent No. 15, 17 and 18 has filed joint written statement and denied the suit. The written statement is Annexure P-2. The respondent Nos.7 and 14 also filed a joint written statement i.e. Ex.P-3. The respondent No.14 was examined before the trial court and gave statement against the petitioner and respondent Nos.15, 17 and 18, therefore, petitioner filed an application under section 151 of CPC for grant of permission cross-examination of respondent No.14.

3. Respondent No.1 filed a reply and after hearing the learned counsel for both the parties, trial court vide order dated 5.1.2023 dismissed the aforesaid application on the ground that the written statement filed by the petitioner and respondent Nos.15, 17 and 18 are not contrary to the written statement filed by respondent No.14.

4. Being aggrieved by the impugned order, petitioner filed this petition stating that trial court has committed error in holding that there is no conflict of interest between petitioner and respondent No.14 while respondent No.14 has given evidence against petitioner and respondent Nos.15, 17 and 18 in chief in para 7 in regard to the possession. Hence, it is prayed that the impugned order be set aside and trial court be directed for grant of permission for cross-examination in context of para 7 of the evidence of respondent No.14.

5. Learned counsel for the respondent supported the impugned order and relied upon the judgement delivered in the cases of Annapurna Devi v. Administrator General, U.P. and others, 2009 SCC OnLine AII 619 and Bijuli Chakraborty and Ors. v. Bhubeneswari Baishya and others, 2018 (5) Gauhati Law Reports, 77.

6. Heard the learned counsel for the parties and perused the documents adduced by the petitioner.

7. Perusal of the record reveals that respondent No.14 - Moinuddin in the examination-in-chief has stated that plaintiff is in possession of One Beegha of land situated near the Naalaa, which was against the interest of the petitioner and respondent Nos.15, 17 and 18. So this statement is in conflict of interest between the statement of respondent No.14 and petitioner. So, in the considered opinion of this Court, an opportunity to cross examination should be given so that ultimately truth emerges on the basis of which the court may reach to the decision.

8. In order to appreciate the controversy, it is necessary to 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. Reexamination- 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 d