Cross-examination by non-adverse parties is permissible; objections must be raised during evidence proceedings.

JUDGMENT

[Judgment of the Court was delivered by DR.A.D.MARIA CLETE, J.,]

This appeal is preferred against the order dated 26.07.2024 passed in A.No.1912 of 2024 in C.S..No.252 of 1996 by the learned single Judge refusing to eschew the evidence of cross examination of DW1 by the 9^th defendant in the suit.

2. The original plaintiff filed suit C.S.No.252 of 1996 for partition and mesne profits in respect of the properties left by E.K.Pattabirama Reddiar paternal grandfather of the plaintiff and great grandfather of the original 1^st and 2^nd defendants. The first defendant is the plaintiff's deceased brother's son and 2^nd defendant is the plaintiff's deceased sister's daughter. After the demise of the original plaintiff and defendants, their legal heirs are brought on record.

3. The appellants are arrayed as defendants 3, 5 to 7 in C.S.No.252 of 1996. These appellants are the legal heirs of the deceased 1^st defendant. In the suit, after the completion of the examination of the plaintiff-side witnesses, the 10^th defendant was examined as DW1. He was cross- examined by the learned counsel for the appellants at first, and after that DW1 was cross-examined by the learned counsel for the 9^th defendant.

4. The grievance of the appellant is that witness DW1 was cross- examined by co-defendant 9^th defendant, which goes against the rule of priority in cross-examining witnesses and therefore the cross examination of DW1 by the 9^th defendant should be eschewed. They argue that the 9^th defendant is aligning with the plaintiff and hence he is not the contesting defendant. The appellants contend that the cross-examination of DW1 by the 9^th defendant has watered down their cross-examination of DW1. However, the 9^th defendant denies the contention of the appellants that she is sailing with the plaintiff and asserts that she is independently contesting the case against the plaintiff, not aligning with them as alleged by the appellants.

5. Now the question is whether cross examination of DW1 by the 9^th defendant is liable to be eschewed.

6. The appellants did not raise the issue of order of priority in the cross examination of DW1 either before the commencement of the cross examination by them of DW1 or before the cross examination of DW1 by the 9^th defendant. The appellants, without raising any questions regarding priority, first cross examined DW1. If they had requested the 9^th defendant to begin the cross examination before they cross examined the witness DW1, it could have been resolved at that time. Instead, the appellants remained silent and fully cross examined the witness DW1. Subsequently the 9^th defendant was also allowed to cross examine DW1. After the 9^th defendant completed the cross examination of DW1, the appellants then preferred an application to eschew the cross examination done by the 9^th defendant.

7. The appellants' contention to eschew the evidence is not supported by any provision in the Evidence Act 1872, in the current Bharatiya Sakshya Adhiniyam 2023 i.e., Section142 and 143 of BSA 2023 or the Civil Procedure Code 1908. The provisions of law referred to by the appellant's counsel, Sections 137 and 138 of the Evidence Act 1872, deal with the order of examination of witnesses and do not contemplate the eschew recorded evidence. While the Court will consider the evidentiary value or probative value of such evidence, the fact that the 9^th defendant cross-examined DW1 after the appellant's cross examination is not a valid reason to eschew the already recorded evidence.

8. The appellant cited the case Achyuntana Pitchaiah Sarma vs Gorantla Chinna Veerayya and others AIR 1961 AP 420, which