The short, but an important issue that arises for consideration in this Civil Revision Petition is whether respondent No.3, a co-defendant along with respondent No.2, is entitled to cross examine the latter.
2. For convenience, the parties are referred as they are arrayed in the suit.
3. The brief facts leading to the filing of this case are summarized hereunder:
Defendant No.1 (died) is the wife of defendant No.2. Defendant Nos.3 and 4 are the daughters of defendant No.2 and defendant No.5 is his son-in-law, being the husband of defendant No.4. The plaintiff is the grand daughter of defendant No.2 through the latter’s eldest daughter. During the lifetime of the plaintiff’s father Late Padala Ammi Reddy (hereinafter referred to as “Late Ammi Reddy”), who was an M.L.A., he acquired 600 sq. yards of plot in M.L.A. colony, Road No.12, Banjara Hills, Hyderabad (Plaint A-Schedule Property). He met with sudden death on 16-7-1986. As per the plaint averments, during his lifetime, Late Ammi Reddy obtained sanctioned plan on 7-5-1986 from the then Municipal Corporation of Hyderabad (MCH) for construction of ground and first floors and a room on the second floor in the Plaint A Schedule Property; that Late Ammi Reddy died leaving behind an unregistered Will dated 9-5-1986 in favour of the plaintiff; that at the time of the death of her father Late Ammi Reddy, the plaintiff was aged 19 years, her brothers were minors and her mother was aged 39 years; that due to his sudden demise, the plaintiff, her mother and her minor brothers were in a state of shock and that defendant Nos.1 and 2 came forward and took control of all the properties including the Plaint A-Schedule property. It was further averred that the signatures of the plaintiff, her mother for herself and on behalf of her minor sons, were obtained at Komaripalem, East Godavari District on blank Non-Judicial stamp paper and white papers on the pretext of making use of the construction material, including wood with the money of Late Ammi Reddy; that thereafter, defendant Nos.1 and 2, by making use of the signatures of the plaintiff’s mother on blank papers, obtained permission from MCH on 12-2-1987; that with the construction material and the money of Late Ammi Reddy, defendant Nos.1 and 2 constructed first and second floors and that while living in the first floor portion, defendant Nos.1 and 2 permitted defendant No.3 to occupy the second floor portion with her family and got the first floor portion mutated in the name of defendant No.1 and the second floor portion in the name of defendant No.3 without the consent of the plaintiff or her mother. With these and several other allegations made in the plaint, reference to which is not necessary for the present purpose, the plaintiff has filed the suit for a decree for grant of multiple reliefs including the one to direct defendant Nos.1 and 2 to vacate and handover vacant possession of the first floor portion (Plaint B Schedule Property) and defendant Nos.4 and 5 to vacate and handover vacant possession of the second floor portion (Plaint C Schedule Property).
4. A common written statement was filed by defendant Nos.1 to 3 and 5 wherein the material allegations in the plaint were denied. Their stand, in brief, is that Late Ammi Reddy committed suicide; that defendant No.2 has six daughters without sons; that the plaintiff’s mother is the eldest daughter of defendant No.2, defendant No.4 is his third daughter, defendant No.3 is his 6th daughter and that his eldest daughter i.e., the plaintiff’s mother, was given in marriage to the son of defendant No.2. It was further averred that at the time of allotment of the plot in the year 1982, Late Ammi Reddy was a sitting M.L.A. and defendant No.2 was an ex-MLA, both of whom were entitled to allotment of two plots; that as Late Ammi Reddy had business interests in his native place, he was not interested in getting a plot allotted in Hyderabad; and that as defendant No.2 was elevated as a Judge of the High Court, he expressed his desire to continue to live in Hyderabad after his retirement. It was further averred that to fulfill the wishes of defendant No.2, Late Ammi Reddy got allotted a plot in his favour and paid sale consideration with a specific understanding that he would construct a building in the ground floor and defendant No.2 would construct the first floor with his own funds and reside therein along with his family. It was further averred that as there was no practice of execution of Wills in Andhra Pradesh at a young age, the unregistered Will dated 9-5-1986 was obviously brought into existence subsequent to the death of Late Ammi Reddy. It is the further case of the defendants that by the time of death of Late Ammi Reddy, he has raised pillars and got the slab laid on the ground floor of the building on 10-7-1986 and died on 17-7-1986; that there was only ten bags of cement and a small quantity of left over steel on the site at that time and that after the death of Late Ammi Reddy, defendant Nos.1 and 2, through the husband of defendant No.3, got the walls of the ground floor constructed with their money and also raised the first floor as per the understanding arrived at between them and the plaintiff’s family which was reduced into writing under a deed of licence dated 27-11-1986 and that defendant No.2 had spent money on these constructions with the sale proceeds of his house at Danavaipet, Rajahmundry, the amounts he had at his disposal, the agricultural income from the lands and also with the amounts drawn from his Provident Fund Account. These defendants further pleaded that after construction of the first floor, the second floor was constructed by defendant No.3 and her husband as per the terms of the said licence deed. It is not necessary to advert to the further averments in the written statement.
5. Having regard to the rival pleadings, the following Issues were framed by the trial Court for consideration:
1. Whether Sri Ammi Reddy executed Will and testament on 9-5-1986, if so, whether it is his last will and testament conferring right on the plaintiff on the suit ‘A’ schedule property?
2. Whether the defendants are in permissive possession of ‘B’ and ‘C’ Schedule of property, if so, whether the permission is revoked legally by the plaintiff?
3. If not, whether the plaintiff is entitled for possession of ‘B’ and ‘C’ Schedule property from the defendants?
4. Whether the plaintiff is entitled for damages for use and occupation? If so, from what point of time and at what rate?
5. Whether the plaintiff is entitled to permanent injunction and redelivery of original title deed dated 30-6-1984?
6. To what relief?
6 The written statement filed by defendant Nos.1 to 3 and 5 was adopted by defendant No.4. After framing of the Issues, the defendants filed a List of Witnesses through their common counsel. The plaintiff has examined herself and her witnesses and they were cross-examined on behalf of the defendants. At this stage, it needs to be noted that even though the plaintiff has averred in this revision petition that her witnesses were cross-examined on behalf of defendant Nos.1, 2, 4 and 5 in common and that the counsel for defendant No.3 has not cross-examined her witnesses, at the hearing, Smt. I. Maamu Vani, the learned counsel for the petitioner/plaintiff has stated that this averment was made mistakenly and that the plaintiff’s witnesses were separately cross-examined on behalf of each of the defendants.
7. Before the trial Court, defendant No.2 has filed his affidavit in lieu of chief-examination as DW-1 and an Advocate-Commissioner was appointed to record his cross-examination at the former’s residence. When the Advocate-Commissioner started recording the evidence on behalf of defendant No.3, who by then has engaged her own counsel separately, it was insisted that her counsel be permitted to cross-examine defendant No.2/DW-1 before the plaintiff’s counsel is permitted to cross-examine the said witness. The learned counsel for the plaintiff objected to this request on the ground that there is no conflict of interest between defendant No.2/DW-1 and defendant No.3 and that on the contrary, defendant No.3 has joined the former in filing the common written statement. As the learned counsel for defendant No.3 has persisted with his request, the Advocate-Commissioner has filed a Memo before the trial Court without recording the evidence of defendant No.2/DW-1. By the order under revision, the lower Court has held that since defendant No.3 has appointed a separate counsel, which shows that she is not willing to contest the suit along with the other defendants, she has a right to cross-examine defendant No.2/DW-1. Feeling aggrieved by this order, the plaintiff filed this revision petition.
8. Order XVIII of the Code of Civil Procedure, 1908 (for short "the Code"), envisages the method and sequence in which the witnesses have to be examined. Under Rule 1 thereof, the plaintiff has a right to begin unless the defendant admits the facts alleged by the plaintiff and 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 the relief which he seeks, in which case, the defendant has the right to begin. Under sub-rule (1) of Rule 2, on the day fixed for the 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. Under sub-rule (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. Under sub-rule (3), the party beginning may then reply generally on the whole case.
9. Concededly, in this case, since no part of the plaintiff’s case was admitted by the defendants, the plaintiff has commenced evidence on her side. After the plaintiff closed evidence on her side, it was the turn of the defendants to adduce their evidence. Accordingly, defendant No.2 has filed his affidavit in lieu of chief-examination as DW-1. Therefore, in the natural course of events, it is the plaintiff who has to cross-examine defendant No.2/DW-1. Generally, a party who produces his witness or a party who sails with the other party is not permitted to cross-examine such witness because Section 137 of the Indian Evidence Act, 1872 (for short "the Evidence Act"), described ‘cross-examination’ as the examination of a witness by the ‘adverse party’. The only situation in which a party is entitled to cross-examine his own witness is envisaged by Section 154 of the said Act where the witness turns hostile to the party who produced him.
10. On the admitted facts of this case, none of the defendants, much less, defendant No.3, is adverse to defendant No.2/DW-1. On the contrary, as noted above, defendant Nos.1 to 3 and 5 have filed common written statement which was adopted by defendant No.4. At no stage, defendant No.3 pleaded that defendant No.2/DW-1, in his chief-examination has deposed something adverse to her interests. Therefore, defendant No.2/DW-1 can by no means be described as an ‘adverse party’ to defendant No.3 within the meaning of Section 154 of the Evidence Act to enable her to cross-examine him.
11. In Smt. Kolluri Kusuma Kumari Vs. Grandhi Surya Bhagawan (1995(3) ALT 132 (DB), on whichSmt. I. Maamu Vani, the learned counsel for the petitioner placed heavy reliance, a family friend of the parties connected with the suit was examined as PW-6 on behalf of the plaintiff for the purpose of proving Ex.X-1, a list of jewellery, prepared by the parties in his presence. The trial Court permitted the plaintiff to cross-examine PW-6. While seriously disapproving this action of the trial Court in permitting the plaintiff’s counsel to cross-examine PW-6, the Division Bench of this Court held as under:
“The discretion conferred on the Court under Section 154 of the Evidence Act to permit a party, who calls a witness, to put questions to him which might be put in the cross-examination by the adverse party, has to be exercised very carefully taking all the facts and circumstances into consideration. Merely because one part of the statement of the witness was not favourable to the party which called him, the Court should not readily conclude that he was suppressing the truth or that his testimony was adverse to the party which called him. Whether the witness had exhibited hostile animus has to be judged on the basis of the answers given by the witness.”
Defendant No.3, in her affidavit filed before this Court, inter alia averred that defendant No.2 filed his affidavit in lieu of chief-examination as DW-1 and that she felt it necessary that some questions of her option should be put to him. Sri S. Balchand, learned counsel for the petitioner/defendant No.3, further elaborated upon this averment and submitted that as defendant No.2/DW-1 has omitted to state certain things with respect to the second floor (Plaint C Schedule Property), it is necessary for his client to elicit certain answers from the latter.
12. I am afraid, such a course is not permissible in law discussed as above. If defendant No.2/DW-1 has left out certain aspects in his evidence, respondent No.3/defendant No.3 is entitled to refer to all those aspects during her evidence. Unless the respondent No.3/defendant No.3 not only pleads but also satisfies the Court that defendant No.2/DW-1 has exhibited ‘hostile animus’ towards her interests, she is not entitled to cross-examine the latter.
13. The learned counsel for respondent No.3/defendant No.3 has placed reliance on the Judgments in HajiBibi Vs. H.H. Sir Sultan Mahomed Khan (ILR XXXII Bombay 599), Bommidi Vasudeva Murthy Vs. Bommidi Bhasker Rao (ILR 1975 A.P. 307)and Mrs. Des Raj Chopra Vs. Puran Mal(AIR 1975 Delhi 109).The learned counsel conceded that the first mentioned two of these decisions do not have any direct bearing on this case as they have dealt with the meaning of the phrase ‘the other party’ wherein it was held that it is only such of those among the defendants who oppose the plaintiffs’ claim that are entitled to cross-examine the plaintiffs and not the defendants who sail with the plaintiffs.
14. The decision in Mrs. Des Raj Chopra (4-supra), turns on its own facts which are not similar to the case on hand. In that case, the question was whether the premises was originally let out to Ram Swarup/respondent No.2 therein and he had sub-let and parted with its possession to one Des Raj, who was the predecessor in interest to respondent No.3. On behalf of respondent No.3, several witnesses including RW-7 were examined. Respondent No.3 sought to cross-examine RW-7 on certain aspects, which was disallowed by the trial Court. The Delhi High Court has reversed the said order by holding that the interests of respondent Nos.2 and 3 cannot be said to be totally common and that different consequences would ensue depending upon the findings on the questions whether the premises was initially let out to respondent No.2, who in turn has let-out the same to respondent No.3 or whether respondent No.3 was the direct tenant or not. In my opinion, this Judgment does not in any manner support the case of respondent No.3/defendant No.3 in the present case in the absence of any conflicting interests between herself and defendant No.2/DW-1. The only ground on which the lower Court has allowed respondent No.3/defendant No.3 to cross-examine defendant No.2/DW-1, namely, that she is being represented by a separate counsel, is not sustainable in the light of the legal position discussed above.
15. In the premises as above, the order under revision is set-aside by holding that respondent No.3/defendant No.3, or any other defendant, is not entitled to cross-examine defendant No.2/DW-1. The Civil Revision Petition is accordingly allowed.
16. As a sequel, C.R.P.M.P.Nos.7821/2011, 2425/2012 and 2426/2012 are disposed of as infructuous.