Advocates:
['ADV SHIVAN DESAI', '', 'ADV COTA VIEGAS MARIA CARMEL TERESA DE JESUS', 'ADV ANIROODH C SARDESAI', 'ADV JAGANNATH JAYANT MULGAONKAR', '', 'ADV RUPA BANAULIKAR', 'ADV SIYA ULHAS DHARGALKAR', 'ADV PEARL ELSA REMEDIOS']

1 WP 955 of 2019-.odt

IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO 955 OF 2019.

Ganesh Vishnu Naique and anr.

Vs.

Joao D'Cruz Cardozo and others

…Petitioner.

… Respondents.

Shri S. Desai, Advocate for the petitioner.

Shri J. J. Mulgaonkar, Advocate for respondent no.3.

Coram: DAMA SESHADRI NAIDU, J.

Date: 16th March 2021

P.C.

Facts:

The petitioners, husband and wife, are the plaintiffs in Special

Civil Suit No.120/2005/A before the Civil Judge, Senior Division, at

Mapusa. They have sued three defendants and sought these reliefs:

(a) a declaration that the sale deed the first and second defendants

executed in the third defendant's favour is void; (b) a declaration that

the plaintiffs are the owners of the suit property through the

reversion of the grant; and (c) both perpetual and prohibitory

injunctions.

2. As the record reveals, the first and second defendants had a

grant of certain properties with an existing house. They sold a piece

of that property to the third defendant. The petitioners, as the

plaintiffs, contended that there is an absolute prohibition against any

sale. They have also contended that there is a clause of reversion in

their benefit. So they have assailed the sale. As the pleadings would

2 WP 955 of 2019-.odt

reveal, defendants 1 and 2, as the vendors, and defendant no. 3, as the

purchaser, sail together. Apparently, there was no conflict of interest

between them.

3. In the trial, the first defendant deposed himself as DW1.

Then, in terms of Order 18 Rule 2 of CPC, read with Section 137 of

the Indian Evidence Act, the third defendant, having no conflict of

interest with DW1, had to cross-examine that witness if he chose.

But as the third respondent pleads, DW1’s evidence in chief revealed

nothing adverse against the third defendant. Therefore, he passed up

the opportunity of cross-examining DW1.

4. Later, the plaintiff cross-examined DW1. During that cross-

examination, according to the third defendant, DW1, though he is a

vendor, deposed adverse to his interest—that is, against the

purchaser’s interest. Because of that development, the third defendant

wanted to cross-examine DW1. For that purpose, he has applied to

the trial Court. The plea in his application, crisp and concise, is

revealing:

2. The interest of Defendant no.3 in the present case

was not [adverse] to that of defendant no. 1 and 2.

Defendant No.3, therefore, had not examined DW1.

Even the Affidavit in evidence of DW1 does not

contain any statement adverse to […] the defendant

no.3.

3. However, in examination recorded on 4/6/2019, the

witness, i.e. DWl, has made certain statements which

are adverse to the interest of Defendant no.3

4. The Defendant no.3 therefore immediately at the end

of the cross-examination on 4/6/2019 sought to

cross-examine DW1. This was opposed by the

3 WP 955 of 2019-.odt

Advocate for the Plaintiff, and Defendant no.3 was

asked to make a written application for cross-

examination, so that the Plaintiff has an opportunity

to give his detailed say on the same.

5. Until DW1 made adverse statements in the cross

recorded on 4/6/2019, there was no need for

Defendant no.3 to cross-examine DWI. It is only after

DWI made statements which are adverse to the

interest of a Defendant no.3, the present application is

being filed.

6. The Defendant no.3 has no objection if the Plaintiff is

given the opportunity for future cross-examination after

Defendant no.3 concludes his cross.

(italics supplied)

5. Though it is stoutly opposed by the plaintiffs, the trial Court,

through its order dated 15.10.2019, allowed that application. In that

proces