Heard Mr. Thali, learned Counsel appearing for the petitioners, Mrs. Agni, learned Counsel appearing for respondent no. 1, Ms. Razaq, learned Counsel appearing for respondent no. 3, Mr. Agha, learned Counsel appearing for respondents no. 2, 4 and 5 and Mr. Almeida, learned Counsel for respondents no. 7, 8 and 9.
2. Rule. Rule made returnable forthwith. Learned Counsel for the respondents waive service of notice. By consent, heard forthwith.
3. By this petition, the petitioners have challenged the order dated 02/04/2013 passed by the learned Civil Judge, Senior Division, Vasco Da Gama in Special Civil Suit No. 65/97/B.
4. The said Special Civil Suit No. 65/97/B has been filed by the respondent no. 6, since deceased, now through his legal representatives namely the respondents no. 7 to 9, for declaration and consequential reliefs. The petitioners are the defendants no. 4, 5 and 6; respondent no. 1 is the defendant no.1; respondent no. 2 is the defendant no. 2; respondent no. 3 is the defendant no.3 and respondents no. 4 and 5 are the defendants no. 7 and 8, therein. For the sake of convenience, the parties shall hereinafter be referred to in the manner in which they are designated in the cause title of the said Special Civil Suit.
5. The plaintiffs, by way of plaint, inter alia, have alleged in the said Suit that by a Deed of Gift dated 24/11/1975, executed by Ana Maria Fermina Trinidade Saldhana e Cunha, mother of the original plaintiff, through her Power of Attorney holder, appointed vide power of attorney dated 22/11/1975, half right to the suit property was gifted in favour of the original plaintiff. Defendant no. 4, the sister of the original plaintiff and of the defendant no. 2, had expired before filing any written statement and the defendants no. 5 and 6 who came on record as her heirs, disputed the fact of execution of the said Deed of Gift dated 24/11/1975 or any power of attorney dated 22/11/1975, by said Ana Maria. The defendants no. 5 and 6 claim to be co-owners along with plaintiffs and except objection to the above sale deed and power of attorney, they have supported the plaintiffs' case on all other aspects.
6. On 26/06/2012, the examination-in-chief of PW1 [plaintiff no. 1(a)] was completed. On 03/07/2012, the learned Counsel for defendant no.1 started cross-examination of PW1 and completed the same on 04/09/2012. Thereafter, the cross-examination of PW1 on behalf of the defendants no. 2, 7 and 8 began and the same was concluded on 22/1/2013. Thereafter, on 5/2/2013, the learned Senior Counsel, on behalf of the defendant no. 3, cross-examined PW1. The evidence of PW1 till then had covered 104 pages. On 12/02/2013, the learned Counsel for the defendants no. 5 and 6 (petitioners) began to cross-examine PW 1 which was partly recorded on that day. On the next day i.e. on 22/02/2013, when further cross-examination of PW1 was partly recorded by the Counsel for defendants no. 5 and 6, the Counsel for other defendants namely the defendants no. 1, 2, 3, 7 and 8 orally objected to the line of cross-examinaton and sought time to file necessary applications. On 01/03/2013, the defendant no. 3 filed an application for debarring the defendants no. 5 and 6 from cross-examining PW1 and also for striking off from the record the cross-examination of PW1 already recorded. Similar application came to be filed on behalf of the defendant no. 1 on 02/03/2013 and on behalf of the defendants no. 2, 7 and 8, on 04/03/2013. The defendants no. 5 and 6 filed their reply to the said applications of the other defendants.
7. By impugned order dated 02/04/2013, the learned trial Court allowed the said applications thereby debarring the defendants no. 5 and 6 from cross-examining PW1 and further striking off the cross-examination already conducted by the said defendants no. 5 and 6 from the records. The trial Court held that the defendants no. 5 and 6 are partly supporting the plaintiff's case and it was incumbent upon them to have sought permission of the Court before the commencement of cross-examination of PW1 by the defendants no. 1; defendants no. 2, 7 and 8; and defendant no. 3, but no such request was made by the said defendants no. 5 and 6. The trial Court held that allowing the defendants no. 5 and 6 to further cross-examine PW1, would enable them to dilute the cross-examination already conducted by the contesting defendants no. 1, 2, 7 and 8 and defendant no. 3. Trial Court further held that the said dilution of cross-examination has been already done so far in the partial cross-examination conducted by the said defendants no. 5 and 6.
8. Mr. Thali, learned Counsel appearing on behalf of the defendants no. 5 and 6 submitted that there is no law which lays down that the said defendants had to take permission from the Court to cross-examine the plaintiff and his witnesses before cross-examination is done by other defendants. He pointed out that the other defendants had not made any application alleging that the defendants no. 5 and 6 should cross-examine before all other defendants do so. He further pointed out that even the Court did not object to the cross-examination done by the defendants no. 5 and 6 after the completion of cross-examination by other defendants. He pointed out from the written statement of the said defendants no. 5 and 6 that by way of amendment, the said defendants had challenged the Gift Deed dated 24/11/1975 and the Power of Attorney dated 22/11/1975. He submitted that to the extent of the said case of the defendants no. 5 and 6, which is adverse to the case of the plaintiffs, they were entitled to cross-examine PW 1, as of right. He alleged that the normal rule is that cross-examination cannot be denied. He therefore, submitted that the cross-examination already done by the defendants no. 5 and 6 could not have been deleted.
9. Learned Counsel appearing on behalf of the defendants no. 5 and 6 submitted that in the case of âK. Subha Rao Vs. Y. Venkatappaiahâ relied upon by the trial Court, the defendants had totally admitted the plaintiff's case and were totally not adverse parties. He submitted that in the case of âHussens Hasanaliâ, relied upon by the trial court, the trial Court had rectified its error by directing deletion of the cross-examination done on behalf of the defendants no. 4 and 5, who were not at all adverse parties, since the learned Advocate for the defendants no. 2 and 3 after lengthy cross-examination had left the Court room at about 1.45p.m., with permission of the Court, to offer his prayers and during his absence, the learned Advocate for the defendants no. 4 and 5 began to cross-examine the plaintiff as if they were adverse parties.
10. Learned Counsel for the defendants no 5 and 6 further submitted that the judgments in the cases relied upon by the trial Court were in the facts and circumstances of those cases and actually no ratio has been laid down therein, more particularly that permission has to be taken for cross-examination. According to him, even if no issue has been framed casting burden on the defendants no. 5 and 6, except issue no. 12 which requires them to prove that the claim of tenancy made by the defendant no. 1 is bad-in-law, however, there are pleadings regarding the Gift Deed and Power of attorney in the written statement and if the point raised by the defendants no. 5 and 6, on said documents, is answered in the negative, that would seriously affect the said defendants. He also added that more issues can be framed at any stage and in any case if the parties go to trial, keeping in view all the pleadings of the parties, then even if some issues are not framed, it does not matter. He submitted that this Court will have to look into the prejudice that would be caused to the defendants no. 5 and 6, if they are not permitted to cross-examine the plaintiff at all. He questioned as to why he has been added as party, if he is not to be allowed to participate in the trial. He submitted that if the defendants do not cross-examine the plaintiff on their case regarding the said documents, adverse inference would be drawn against them. He submitted that the defendants no. 5 and 6 having already cross-examined PW1 on previous day without objection from anybody, the said cross-examination cannot be deleted and further if the defendants no. 5 and 6 could do something in the beginning, then they can do the same thing subsequently also. He read out the cross-examination that was already done on behalf of the defendants no. 5 and 6 and urged that the same is either the matter of record or on admitted facts as far as the plaintiffs are concerned and therefore there is no question of dilution of the cross-examination done by the Advocates appearing for the other defendants.
11. Mr. Thali, learned Counsel for the defendants no. 5 and 6 relied upon the following judgments :
(i) âBank of India and another v/s K. Mohandas and othersâ,[(2009) 5 SCC 313]
(ii) âRoy Joseph Creado and others v/s. Tamisuddin Nazir Ahmed and othersâ, [2008 (1) Bom. C.R. (Cri.) 402]
(iii) âShikshan Prasarak Mandal v/s. State of Maharashra and othersâ [2009(6) Bom. C.R. 1] (iv) âThe Regional Manager and another vs. Pawan Kumar Dubeyâ [(1976) 3 SCC 334]
12. Mrs. Agni, learned Counsel appearing on behalf of the respondent no. 1 submitted that the only issue to be proved by the defendants no. 5 and 6 is as to whether the claim of the defendant no.1 as tenant is bad-in-law. She submitted that in the plaint, there is no prayer as against the Defendants no. 5 and 6. According to her, therefore, the defendants no. 5 and 6 have nothing to prove in this suit and they have been made parties only for supporting the claim of the plaintiff. She read out some paragraphs of the plaint and submitted that the cross-examination done on behalf of the defendants no. 5 and 6 is not in line of those paragraphs but whatever has been put to PW1 by them has been admitted by him. She further pointed out that even in the present petition, the plaintiffs have not objected to the prayers made by the defendants no. 5 and 6. She even pointed from the cross-examination done on behalf of the defendants no. 5 and 6 that something has been brought on record which was not there in the original deposition of PW1. She stated this was in order to fill up the lacuna and all has been done for diluting the cross-examination earlier done on behalf of the defendant no. 1, defendants no. 2, 4 and 7 and defendant no. 3. She submitted that since the defendants no. 5 and 6 had not taken permission to cross-examine PW1 prior to the other defendants, the other defendants were under bonafide impression that the said defendants would not cross-examine PW1 but in their absence, cross-examination on behalf of the defendants no. 5 and 6 was done and at the earliest opportunity which was available to the defendants no. 1; 2, 3 and 7 and defendant no. 3, on the next date, they put objection and filed the applications for debarring the defendants no. 5 and 6 from further cross-examining PW1 and also for expunging the cross-examination already done, on their behalf. According to the learned Counsel, since the cross-examination already done is entirely on the points supporting the pleadings of the plaintiffs, no fault can be found with the impugned order expunging the cross-examination and further since no permission was taken by the defendants no. 5 and 6 to cross-examine PW1 prior to the commencement of cross-examination on behalf of the other defendants, question of now allowing the said defendants after cross-examination on behalf of other defendants is closed, is out of question. She therefore, urged that there is no scope to interfere with the impugned order in the exercise of writ jurisdiction under Article 227 of the Constitution.
13. The learned Counsel appearing on behalf of the defendant no. 1 relied upon following judgments:
(i) âMandabai Ramkrishana Tumsare and other V/s. Ramlal Hiramanji Hiwarkar and othersâ [1986(0) BCI 95]
(ii) âHussens Hasanali Pulavwala v/s. Sabbirbhai Hasanali Pulavwala and othersâ [AIR 1981 Gujarat 190]
(iii) âSunil Chhatrapal Kedar v/s. Mr. Y.S. Bagde and anotherâ [2005(1) All MR 38]
(iv) âJai Singh and others v/s. Municipal Corporation of Delhi and anotherâ [(2010) 9 SCC 385]
14. The learned Counsel appearing on behalf of the defendant no. 3 submitted that the defendant no. 3 had purchased a small portion of the suit property which is a large property and they are not concerned with the said large property. She submitted that the defendants no. 5 and 6 never challenged the tenancy of the defendant no. 3. She pointed out that in its written statement, the defendant no. 3 has spoken about two suits filed in the year 1978 namely Civil Suit no. 28/78 and 16/79 which suits have also been filed by the plaintiffs on the basis of Power of Attorney given by the mother which is the same Power of Attorney now sought to be disputed by the defendants no. 5 and 6. According to Ms. Razaq, the learned Counsel appearing on behalf of the defendant no. 3, voluminous cross-examination was done on behalf of the defendant no. 1; defendants no. 2, 4 and 7 and defendant no. 3. She further urged that no counter claim has been filed by the defendants no. 5 and 6 and only by way of amendment, the Gift Deed and Power of Attorney have been challenged by them. She submitted that the law laid down in the case of âSunil Chhatrapal Kedarâ (supra) is rule of prudence justice and equity. She pointed out from the judgment in the case of âSunil Chhatrapal Kedarâ (supra) that the order of leading evidence as mentioned therein applies also to the cross-examination. She submitted that the defendants no. 5 and 6, who mostly support the plaintiffs, were bound to cross-examine PW1 before all other defendants, and having not done so they cannot now seek to cross-examination PW1. She also submitted that since the cross-examination already done by the said defendants was nothing but filling of lacuna in the plaintiffs' case and only supporting the plaintiffs, thereby diluting the cross-examination already done by other defendants, the same has been rightly struck off.
15. Mr. Agha, learned Counsel appearing on behalf of the defendants no. 2, 4 and 5, adopted the submissions made by the learned counsel for the defendant no. 1 and further submitted that the defendants no. 5 and 6 in the present petition have made wrong statement in paragraph no.9 of the petition in so far as the issues are concerned and though this was pointed out to them earlier, they have not bothered to correct the same and therefore they have shown their conduct which cannot entitle them to any relief.
16. Mr. Almeida, learned Counsel appearing on behalf of the plaintiffs, gave a broad idea as to why the plaintiffs have instituted the said suit and as to how the defendant no. 3 and defendant no.1 came into play. He submitted that there is no dispute on the order of cross-examination. However, since the party claiming prejudice, namely the defendants no. 1 to 8, did not ask the Court to direct the defendants no. 5 and 6 to cross-examine PW1 before all other defendants, the said parties now cannot pray to delete the cross-examination already done. He pointed out that after the evidence of the plaintiffs, the plaintiffs wanted that the defendant no.1 should examine himself first but the other defendants objected to the same and said that the defendants no. 5 and 6 should examine themselves first. He questioned as to why the same thing was not done during the cross-examination of PW1. It is his allegation that the entire endeavour is to cause delay in disposal of the plaintiff's suit, so as to frustrate the real owners.
17. With the assistance of the learned counsel for the parties, I have gone through the entire material on record as also the material which is made available to me during the course of arguments. I have also considered the submissions advanced by the learned Counsel for the respective parties and the judgments cited by them.
18. In the case of âKarumanchi Subha Rao Vs. Yarlagadda Venkatappaiah and othersâ (AIR 1978 AP 193), which has been relied upon by the trial court, the question was whether the defendant, who filed written statement stating that suit instituted by the plaintiff be decreed as prayed for, had any right to cross-examine the plaintiff. The Andhra Pradesh High Court held that cross-examination can be allowed only if party has adverse interest to plaintiff and therefore the defendant cannot cross-examine the plaintiff.
19. In paragraphs 9, 10 and 11 of the judgment in the case of âMandabai Tumsareâ (supra), the learned Single Judge of Nagpur Bench of this Court has observed thus:
"9. Rule 2 of Order 18, Civil Procedure Code runs as under :
"-2.(1) On the day fixed for hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.
(2) The other party shall then state his case and produce his evidence [if any] and may then address the court generally on the whole case.
(3) The party beginning may then reply generally on the whole case.
(4) Notwithstanding anything contained in this rule, the Court may, for reasons to be recorded, direct or permit any party to examine any witness at any stage."
Reading the two rules of Order 18 together, it is apparent that in a given case where he has admitted the facts alleged in the plaint, the defendant has a right to begin provided he contends that either in point of law or on some additional facts alleged by the defendant, the plaintiff is not entitled to any part of any relief. Further, it is apparent that after deciding which party has a right to begin, the court has to permit that party having the right to begin to state his case and produce his evidence in support of the issues, the burden of which is cast upon him. It is after this stage that "the other party" shall then state his case and produce his evidence and address the Court generally on the whole case. Sub-rule (4) of Rule 2 categorically states, notwithstanding anything contained in this rule, the Court may, for reasons to be recorded, direct or permit any party to examine any witness at any stage. Thus, as to the order in which evidence is to be taken, the rule is that the plaintiff and such of the defendants as support his case, wholly or in the part, must address the Court and call their evidence and then "the other party" i.e. the other defendants contesting the plaintiffs claim should address the court and call their evidence and then âthe other partyâ i.e. the other defendants contesting the plaintiffs claim should address the Court and call their evidence. Examination-in-chief of a witness, cross-examination by the adverse party and re-examination by the party who called the witness are defined in Section 137 of the Evidence Act. Under Section 138 of the Evidence Act, witnesses shall be first examined in chief, then [if the adverse party so desires] cross-examined, then [if the party calling him so desires] re-examined. It is in the light of these provisions of the Evidence Act and Order 18 of Civil Procedure Code, it appears that the trial Court has to bear in mind which is the party who has a right to begin and which is the adverse party who has a right to cross-examine."
10. In the circumstances of the present case, it is apparent that the plaintiff's case is fully supported by defendants 6 to 8. They are, therefore, not an adverse party to the plaint, but are proforma defendants through whom the plaintiff is claiming a right to the property. In a case like this, the evidence of the plaintiff having been recorded, it would be just and proper to ask the proforma defendants 6 to 8 to initially cross-examine the plaintiff and then direct the contesting defendants 1 to 5 to cross-examine the plaintiff. The reason is simple. For the administration of fair and just trial, it must be noted that the plaintiff's evidence, if cross-examined by the adverse party, may reveal certain lacunae which could be got corrected by the defendants supporting the plaintiff when they cross examine the plaintiff subsequently inasmuch as they are interested in the claim of the plaintiff. By way of cross-examination, the supporting defendants can put leading questions and get the necessary answers. It is for this purpose, to meet the ends of justice, the trial Court should permit the contesting defendants to cross-examine the plaintiff last, particularly when the adverse party so desires. Thus if there are more than one defendant in a such, the order of their cross-examination is a matter which rests on the discretion of the Judge. To put it in other words, cross-examination as defined in Section 137 of the Evidence Act, is the examination of the witness by "adverse party" and the defendants who are supporting the plaintiffs case are not an adverse party. Therefore, their formal cross-examination should be brought on record and it is then the "contesting defendants" which is the "real adverse party" should be directed to cross-examine the plaintiff."
20. In the case of âSunil Chhatrapal Kedarâ (supra), the learned Single Judge of this Court (Nagpur Bench) has quoted the said paragraphs no. 9 and 10 of the judgment in the case of âMandabai R. Tumsareâ (supra) and also referred to the judgment of the Gujarat High Court in the case of âShah Hiralal Himatlal and others v/s. M.G. Pathak and othersâ reported in AIR 1964 Guj 26. In the case of âSunil Chhatrapal Kedarâ (supra), it has been observed thus:
â10. Lastly, in the basic judgment as, reported in AIR 1964 Gujarat 26 (Shah Hiralal Himatlal and Others vs. M.G. Pathak and Others), while dealing with the provisions of Order 18 Rule 2, in cases where there are several defendants, some support the plaintiff and some oppose the same, what should be the order of leading evidence or cross examination amongst such defendants, the principle as laid down is reproduced as under :
"4. So far as the defendants go, the question which of the defendants should begin has not been dealt with in Order 18, Civil Procedure Code. But on general principle, if any of the defendant supports the plaintiff in whole or in part, then he should address the court and lead his evidence first before the other defendants who do not support wholly or in part the plaintiffs case. The order in which the defendants lead evidence becomes important only when some of them support the case of the plaintiffs in whole or in part while the others do not. If all the defendants completely oppose the plaintiff's case, then the question of order of leading evidence amongst the defendants is immaterial. It is only when the defendants are divided into two groups, one group consisting of the defendants supporting the plaintiff's case in any part, that the question of order of leading evidence becomes important. In such cases among defendants the order of leading evidence should be as follows :
1. Those defendants who fully support the case of the plaintiff;
2. Those defendants who partly support the case of the plaintiff;
3. Those defendants who do not support the case of the plaintiff in any part."
21. From the above judgments it can be understood that where the defendants, in their written statement, directly admit the plaintiff's case and state that the suit instituted by the plaintiff be decreed as prayed for, they cannot cross-examine the plaintiff. Where in a suit, there are various defendants out of which some wholly support the plaintiffs' case, i.e. do not reveal any adverse interest to the plaintiffs and some who partly support but partly dispute the plaintiff's case and lastly the others who do not at all support the plaintiff's case, then in such case the defendants who fully support the plaintiff's case should be asked to cross-examine the plaintiff first; thereafter the defendants who partly support but partly dispute the plaintiff's case and lastly those who do not at all support the case of the plaintiffs in any part.
22. In the case at hand, admittedly, the defendants no. 5 and 6 are supporting the case of the plaintiffs on most of the facts but dispute their case only insofar as the Deed of Gift dated 24/11/1975 and Power of Attorney dated 22/11/1975, is concerned.
23. In the case of âHussens Hasanali Pulavwalaâ (supra), it was clear from the written statement filed by defendants no. 4 and 5 that they wholly supported plaintiff's case and had prayed that the estate of the deceased to be administered as desired by the Plaintiff. Thus, to my mind, the facts in the case of âHussens Hasanali Pulavwalaâ(supra) appear to be similar to the facts in the case of âK. Subha Raoâ(supra). In the case of âHussens Hasanali Pulvwalaâ (supra), the Advocate for defendants no. 2 and 3 had cross-examined the plaintiff at length and thereafter at about 1.45p.m. had left the Court room with permission of the Presiding Judge to offer his prayers. During his absence, it appears that the Court had permitted the Advocate for defendants no. 4 and 5 to cross-examine the plaintiff. Before the Advocate for defendants no. 2 and 3 was called to cross-examine the plaintiff, the Advocate for defendants no. 4 and 5, who were wholly supporting the case of the plaintiff, had not sought permission to put questions to the plaintiff. When the Advocate for the defendants no. 2 and 3 returned to the Court room after offering prayers, he learnt from his junior Advocate who was taking notes that the Advocate for defendants no. 4 and 5 had cross-examined the plaintiff. He, thereupon, gave application for expunging the cross-examination of the plaintiff by Advocate for the defendants no. 4 and 5, on the ground that they had no right to cross-examine since they were supporting the case of the plaintiff. It was held by the trial Court that the defendants no. 4 and 5 had no right to cross-examine the plaintiff since they were not adverse parties. The trial Judge rectified his error by directing deletion of cross-examination of the plaintiff by the Advocate for the defendants no. 4 and 5. The question that arose before the Gujarat High Court was whether the Court should exercise revisional jurisdiction on the plea that there is no provision in law for deleting evidence which has already been recorded. The learned Single Judge of the Gujarat High Court observed that the Court will not be entitled to interfere with the order passed by the trial Court in exercise of its jurisdiction under Section 115 of the Code, unless it is shown that the trial Court has committed a jurisdictional error in passing the impugned order. It has been held that the impugned order passed by the trial Judge is, in the circumstances of the case, just and proper because defendants, not being adverse parties, had no right to cross-examine the plaintiff. The Gujarat High court further held that to redress a wrong, in the absence of any provision to the contrary in the Code, the Court had inherent jurisdiction under section 151 of the Code to pass the impugned Order. The Gujarat High Court, therefore, refused to entertain the revision application. Thus, the order passed by the trial Court in the case of âHussens Hasanali Pulavwalaâ(supra), thereby deleting the cross-examination done by the learned counsel for the defendants no. 4 and 5 was in the exercise of powers under section 151 of C.P.C. The Gujarat High court in such circumstances refused to interfere with the said order in the exercise of jurisdiction under section 115 of C.P.C.
24. In the case of âThe Regional Manager and anotherâ (supra), the meaning of ratio decidendi of a case has been explained. It has been held by the Apex Court that it is the rule deducible from the application of law to the facts and circumstances of a case which constitutes the ratio decidendi and not some conclusion based upon facts which may appear to be similar. It is observed that one additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts.
25. In the case of âRoy Joseph Creado and otherâ (supra), the learned Single Judge of Aurangabad Bench of this Court has held that the head notes are drawn by editors/staff members of law Journals and therefore it is necessary to read precedent in entirely and thereafter to cull out ratio of authority.
26. In the case of âBank of India and Anotherâ(supra), it has been held that precedent has to be considered in the facts and circumstances of a case in which it was laid down.
27. Lastly, in the case of âShikshan Prasarak Mandalâ (supra), the Apex Court held that for a precedent to be binding, there has to be a reference to facts, controversy in issue, discussion on statutory provisions, reasoning for coming to a conclusion and clear statement of law and principles settled or answered by judgment.
28. Keeping in mind the above principles on binding precedents and ratio decidendi, the present matter has to be looked into. It is true that in the case of âHussens Hasanali Pulavwalaâ (supra), the cross-examination that was already conducted on behalf of the defendants no. 4 and 5 was ordered to be deleted and the Gujarat High Court refused to entertain the revision application against the same order. It should be kept in mind that in the case supra, the defendants no. 4 and 5 had wholly supported the plaintiff's case and further had specifically prayed that the estate of the deceased be administered as desired by the plaintiff. However, in the present case, the defendants no. 5 and 6 have supported the plaintiff's case except for their pleadings on the Gift Deed dated 24/11/1975 and Power of Attorney dated 22/11/1975. Insofar as, the said Gift Deed and Power of Attorney is concerned, the defendants no. 5 and 6 do not agree with the pleadings of the plaintiffs. Therefore, the case of the defendants no. 5 and 6 herein cannot be compared with the case of the defendants no. 4 and 5 in the case of âHussens Hasanali Pulavwalaâ(supra). I am inclined to agree with the learned Counsel appearing on behalf of the defendants no. 5 and 6 that none of the judgments relied upon by the learned Counsel for the defendants no. 1, 2, 3, 4, and 7 lay down a ratio that the defendants who are partly adverse to the plaintiff's case have to seek permission to cross-examine the plaintiff prior to commencement of cross-examination by other defendants and in the event such defendants cross-examine the plaintiff, after cross-examination by other defendants the said cross-examination has to be expunged. However, the fact remain that the defendants no. 5 and 6 cannot be allowed to cross-examine the plaintiff insofar as they fully support the case of the plaintiff and they cannot be allowed to fill in the lacunae left in the plaintiff's case after the deposition of plaintiff and other witnesses. In the present case, though the defendants no. 5 and 6 did not seek permission to cross-examine the plaintiff before the commencement of cross-examination by other defendants. however, the fact remains that after the cross-examination by other defendants was closed, the learned Counsel for the said other defendants were absent and the Court permitted cross-examination on behalf of the defendants no. 5 and 6. Merely because the defendants no. 5 and 6 failed to seek permission, it cannot be said that they lost their inherent right of cross-examination, at least on their case which is adverse to that of the plaintiffs. I am therefore of the view that the defendants no. 5 and 6 should be permitted to cross-examine PW1 and his witnesses, if any, only on the case of the said defendants insofar as the said Gift Deed dated 24/11/1975 and the Power of Attorney dated 22/11/1975, is concerned. Prejudice is bound to be caused to the said defendants no. 5 and 6 if they are not allowed to cross-examine the plaintiff (PW1) on the said limited points where they dispute the case of the plaintiffs. Since, there is possibility that prejudice may also be caused to the other defendants who are wholly adverse to the case of the plaintiffs, on account of the cross-examination done on behalf of the defendants no. 5 and 6, opportunity can be given to all the other said defendants to further cross-examine PW1 only to the extent of and on the aspect of cross-examination done by the defendants no. 5 and 6 and nothing more. Merely because, there would be delay caused in disposal of the case, the defendants no. 5 and 6 cannot be denied their right to cross-examine. Therefore, part of the impugned order directing that the defendants no. 5 and 6 are barred from cross-examining PW1, at this stage, after the cross-examination of the contesting defendants no. 1, 2, 7, 8 and 3, is required to be quashed and set aside.
29. I have minutely gone through the cross-examination which was already done on behalf of the defendants no. 5 and 6 but expunged by the impugned order, in the light of pleadings in the plaint, written statement of the said defendants no. 5 and 6 and the written statements of other defendants. I am of the view that the same has been rightly expunged since the same either relates to the case as pleaded by the plaintiffs or seeks to fill up the lacunae. The said cross-examination tends to assist the plaintiff (PW1) to explain the evidence brought about by the other defendants and thus to counter the same. In that way, the said cross-examination tends to water down and dilute the effect of the cross-examination done on behalf of the other defendants. Part of the impugned order thereby striking off the cross-examination done by the defendants no. 5 and 6 from the records, is proper in the facts and circumstances of the case and does not warrant interference in the exercise of powers under Article 227 of the Constitution of India.
30. In the result, the petition is partly allowed.
(a) The impugned order dated 02/04/2013 passed by the learned Trial Judge in Special Civil Suit No. 65/97/B, thereby, barring the defendants no. 5 and 6 from cross-examining PW1 is quashed and set aside.
(b) The defendants no. 5 and 6 shall be permitted to cross-examine PW1 only insofar as their case regarding the Gift Deed dated 24/11/1975 and Power of Attorney dated 22/11/1975, is concerned.
(c) The other defendants shall also be permitted to cross-examine PW1, if they desire, only on the aspect of the cross-examination done on behalf of the defendants no. 5 and 6 and on no other point.
31. Rule is made absolute in the aforesaid terms, with no order as to costs. Petition stands disposed of accordingly.