The court emphasized the established practice that supporting defendants should cross-examine plaintiff's witnesses first to ensure effective justice in the proceedings.

JUDGMENT

C.A.V. On : 13.12.2023

Pronounced On : 20.12.2023

The present writ petition under Article 227 of Constitution of India has been filed against the order dated 27.05.2015 passed by learned Civil Judge (Senior Division)-III, Giridih in T.S. No. 61/2007, whereby and whereunder the petition dated 15.09.2014 of petitioners / defendant nos. 1 to 4 was rejected on the ground that prayer of the petitioners / defendant nos. 1 to 4 to begin cross- examination of plaintiff’s witnesses at first instance by the defendant nos. 9 and 10, who are supporting the plaintiff’s case inasmuch as the defendant nos. 1 to 4 could not compel other defendants to cross-examine the plaintiff’s witness first.

2. One Chand Mull Jain (respondent no. 1) / plaintiff filed a Title Suit No. 61/2007 for declaration of his right, title and interest and confirmation of possession of Schedule-B property to the plaint and also for perpetual injunction restraining the principal defendant from his peaceful possession and enjoyment and also for recovery of possession, if found dispossessed. It was also prayed that the sale deed dated 21.12.2006 executed by defendant nos. 2, 3 & 4 (Smt. Santosh Jain, Smt. Nilu Jain and Smt. Hema Jain) in favour of defendant no. 8 (Kanika Dey) may be declared illegal and not binding on the plaintiff. It is further prayed that the decree passed in Title Suit No. 45/1997 is not binding on proforma defendant no. 9 and plaintiffs of this suit.

3. Learned counsel for the petitioners has submitted that after the plaintiff adduced their evidence on affidavit of three witnesses in their examination-in-chief and present petitioners / defendant nos. 1 to 4 were asked to cross-examine for first, then an application dated 15.09.2014 was filed by petitioners / defendant nos. 1 to 4 praying to the learned trial court that the Advocate Commissioner who record the cross-examination may be directed to call for the proforma defendants to cross-examine the plaintiff’s witnesses before cross-examination is done on behalf of contesting defendants, so that real facts may come before the learned trial court and substantial justice may be done to the parties.

The plaintiff also filed his rejoinder on 05.11.2014 and after hearing the parties, the impugned order dated 27.05.2015 was passed without appreciating the relevant provisions and object of the contesting defendants to lead the cross-examination first by proforma defendants, who are supporting the plaintiff’s case, so that effective cross-examination may be done. In this regard, learned counsel for the petitioners has relied upon the judgment passed in the case of Smt. Shanti Devi & Others vs. Ram Mohan Thakur & Others reported in 1999 SCC OnLine Pat 678 .

4. Learned counsel for the respondent has vehemently opposed the aforesaid argument on behalf of petitioners and submitted that the petitioners / defendant nos. 1 to 4 cannot compel the supporting defendants to cross-examine the plaintiff’s witnesses first and there is no illegality or infirmity in the impugned order calling for interference by this Court, which is fit to be dismissed.

5. Before parting the judgment on the above issue as regards order of cross-examination of the witnesses by the defendants, it is apt to discuss the ratio of judgment so relied upon Smt. Shanti Devi & Others (supra) by the petitioners. Para-6 & 7 of the aforesaid judgment reads as follows:

6. I have gone through the aforesaid decision and I find that the point at issue is squarely covered by it. The observations of the Court at page 96 of the report may straightaway be quoted as hereunder:—

The usual practice in cases, where some of the defendants support the plaintiff's case and others oppose it, is to order that those who support the plaintiff's case should cross- examine plaintiff's witnesses first if they desire to do so, and to call their evidence and address the Court before the defendants who oppose the plaintiff's case do so. Any other practice would be