The cross-examination rights of parties in a trial must be preserved according to procedural rules, ensuring fairness in witness examination, which was violated in this case.

ORDER :

1. This present Civil Revision Petition is filed under Article 227 of the Constitution of India assailing the order, dated 14.06.2022, passed in I.A.No.193 of 2022 in O.S.No.21 of 2011 by the learned Senior Civil Judge at Nirmal.

2.1. Petitioner is the plaintiff and respondents are the defendants in the suit vide O.S.No.21 of 2011.

2.2. Petitioner has filed I.A.No.193 of 2022 under Order XVIII Rule 17 r/w under Section 151 of Civil Procedure Code to recall the Dw1 for further cross examination on his behalf.

2.3. It is mentioned in the cause title of the Civil Revision Petition that respondent Nos.1, 3 to 19 are not necessary parties.

3. It is stated in the application in I.A.No.193 of 2022 that on 04.04.2022 a memo was filed by the petitioner-plaintiff for examining of defendant No.2 as Dw1 without there being any whisper of the evidence of defendant No.1. Since he filed a written statement on his behalf without deciding the said controversy the learned trial Court proceeded to complete the examination of Dw1 (chief examination and cross examination). It is further stated that from the beginning, the defendants are not following the procedure for examination of the witness and at the time of examination of Dw1 also it has been observed by the petitioner-plaintiff that after filing the chief affidavit of Dw1, defendant Nos.8 to 18 are sailing with the co-defendants, who are alleged to have purchased the property from defendant Nos.1 to 7. Any examination of Dw1 on behalf of the defendant Nos.8 to 18 shall be before the contesting party i.e., plaintiff. In this case, the Dw1 was examined on 04.04.2022 and at the time of cross examination of Dw1, the cross examination on behalf of defendants Nos.8 to 18 shall be recorded earlier, since they are sailing with the other defendant Nos.1 to 7, then the cross examination of the contesting party i.e., petitioner-plaintiff has to be done. The said procedure is not followed and prayed to recall Dw1 for further cross examination.

4. Respondent No.2 has filed his counter contending that the petitioner-plaintiff has not raised any objection and did not place the same before the learned trial Court that the other defendants are sailing with Dw1. Hence, prayed to dismiss the same.

5. Learned trial Court after going through the affidavit of the petitioner-plaintiff and counter filed by respondent No.2 has dismissed the application, which is impugned in the Civil Revision Petition, holding that the counsel for the petitioner- plaintiff has cross examined Dw1 after cross examination of defendant Nos.8 to 18. Further, the cross examination of Dw1 was done on behalf of defendant Nos.11 to 14 and 18 and the cross examination of defendant Nos.8, 9 and 10 is reported as NIL. Thus, the petitioner-plaintiff has cross examined Dw1 and he has not made out any case thereby application came to be dismissed.

6. Learned counsel for the petitioner submits that the learned trial Court failed to follow the procedure as contemplated under Order XVIII Rule 3-A of Civil Procedure Code and the order passed thereon is perverse. Counsel further submits that defendant Nos.11 to 14 and 18 have cross-examined Dw1 and confronted some documents, which are marked as Ex. B6 to B11. Subsequent to the cross examination of the petitioner-plaintiff counsel, the order calls for interference of this Court and prayed to set aside the same and allow the civil revision petition.

7. Per contra, learned counsel for respondent No.2 submits that it is the petitioner-plaintiff, who has to make a request to the learned trial Court that they are reserving their right