ORDER
H.N. Narayan, J.
1. This Civil Revision under Section 115 C.P.C. is directed against the order of the Additional City Civil Judge, Bangalore allowing I.A.20 filed by the first defendant for permission to cross examine defendant-2 who is examined as DW-1.
2. Plaintiff has filed a suit for specific performance of agreement of sale alleging that the defendants who are sister and brother have executed the same. In the defence filed by defendant-2, it is contended that he is the general power of attorney holder of defendant-1 which fact is disputed by the first defendant. Defendant-1 has denied the claim of the plaintiff that she has also joined hands with defendant-2 in execution of agreement of sale consideration.
3. After the evidence of the plaintiff was closed, defendant-1 filed an application praying permission to examine herself after the evidence of defendant-2. The Trial Court has permitted her to do so. Thereafter, defendant-2 was examined as DW-1 and cross examined by the plaintiff. At that stage, defendant-1 prayed permission to cross examine DW-1 on the ground that there is conflict of interest in the defence of the defendants and that defendant-2 has colluded with the plaintiff in order to snatch a decree. The Trial Court having regard to these facts has permitted the first defendant to cross-examine defendant-2 i.e. DW-1. But, to safeguard the interest of the plaintiff, Court has secured the questions from the first defendant's advocate in a sealed cover and allowed the application with costs of Rs. 100/-. The legality of the order is questioned in this revision.
4. Sri S.A. Mujeeb, Learned Counsel for the petitioner, contended that the co-defendant has no right of cross examining the other defendant and that the trial Court's order is therefore erroneous.
5. The short but important question that arises for consideration is whether a co-defendant has right to cross examine the other defendant.
6. It is undisputed that no special provision is made in the Evidence Act for cross examination of the co-accused or co-defendant's witnesses. The only relevant provision of law is Section 137 and 138 of the Evidence Act. Section 137 refers to examination-in-chief and cross examination of a witness by the adverse party. The examination of an adverse party is the cross examination. The question is who is an adverse party so far as the witness is concerned. The very object of cross-examination is to test the evidence.
Dictionary of law by Curzon 4th Edition defines 'adversary' aswitness who disappoints the party calling them i.e. they areunfavourable and hostile witnesses. The new Webster Dictionary ofEnglish Language has explained the word 'adverse' as going incontrary direction; counter action; opposing, calamitous,unpropitious etc.
7. Section 137 specifically explains that the examination of a witness by the adverse party is cross examination. Section 138 of the Evidence Act refers to cross examination if the adverse party so desires after the witness is first examined in chief. These two sections of the Evidence Act make it abundantly clear that a party has a right of cross examining his adversary or his witness.
8. Section 137 and 138 of the Evidence Act do not specifically refer to cross examination of co-defendant's witnesses. But, the courts have to adopt a golden rule that no evidence shall be received against any co-defendant or co-accused who had no opportunity of testing it by cross examination; as it would be unjust and unsafe not to allow a co-accused or co-defendant to cross-examine witness called by one whose case was adverse to his, or who has given evidence against him. If there is no dash of interest or if nothing has been said against the other party, there cannot be any right of cross-examination. A short but, interesting discussion is found in Sarkar's Evidence at Page 1342 13th Edition. Similar opinion is found in Principles and Digest of the Law of Evidence by M. Monir, Third Edition Page 1114.
9. This very question was debated in the English Courts as far back as in 1920 vide a decision in LORD v. COLVIN 1855, 24 LJ Ch 517, 3 Drew 222. The learned Judge in the said case after consulting all the equity judges held that before an examiner in Chancery, one defendant might cross examine another defendant's witness. The same right exists between respondent and co-respondent in divorce cases provided either is hostile to the other, for if friendly, eg. where both deny the adultery, each can only be examined as the other's witness and not cross-examined. A defendant may cross-examine his co-defendant who gives evidence or any of his co-defendant's witnesses if his co-defendant's interest is hostile to his own. Therefore, the procedure that has been followed by the Courts in England and in India has not left this question in doubt. Where it is shown that the interest between the defendants' inter-se conflict each other, the other defendant has necessarily to be treated as. an adversary and he is certainly entitled to cross examine the other defendant or his witnesses.
10. Here is a case where one defendant disputes execution of agreement in favour of the plaintiff and reserves her right of examination perhaps to know the nature of evidence of her adversary viz. defendant-2. Learned Counsel for the petitioner is quick to point out that defendants are none other than the sister and brother. Unfortunately, the relationship is strained. There appears to be a conflict of interest between the two. Defendant-2 i.e. DW-1's evidence discloses that he has borrowed money along with defendant-1 from the plaintiff and she put her signature on a blank paper viz. the suit document. In fact, this has been emphatically denied by defendant- 1. The other conflicting interest between them is in regard to the execution of power of attorney by defendant-1 in favour of defendant- 2. Therefore, it is obvious that defendants 1 and 2 did not see eye to eye in all these matters. The allegation made by defendant-1 against defendant-2 is that he has joined hands with the plaintiff and they both want to knock of the property of defendant-1. The only mode of testing this evidence is by way of cross-examination of the witnesses. The Court has rightly granted permission for cross-examination of DW-1. Under the circumstances, it cannot be stated that the impugned order is erroneous or passed without jurisdiction. There is no material irregularity at all in the order.
11. Therefore, this revision fails and accordingly disposed of.