CROSS EXAMINATION OF ADVERSE PARTY

[Mr. M. GOVINDARAJAN]

Examination and cross examination

Section 3 of the Evidence Act, 1872 (‘Act’ for short) defines the term ‘Examination’ as including-

• all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry;

such statements are called oral evidence;

• all documents including electronic records produced for the inspection of the Court;

such documents are called documentary evidence.

Section 137 of the Act provides that the examination of witness by the party who calls him shall be called his examination-in-chief.  The examination of a witness by the adverse party shall be called his cross-examination.   The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.

Section 138 of the Act provides that 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.  The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.  The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.

Adverse party

Black’s Law Dictionary defines the expression ‘adverse party’ as a party whose interests in a transaction, dispute, or law suit are opposed to another party’s interests.  The Advanced Law Lexicon defines the expression ‘adverse party’ that if a party accepts the plaintiff’s case, there is no consent between the plaintiff and the third party and such a defendant cannot be styled as an ‘adverse party’ and would not be entitled to cross examine the plaintiff.  Such persons cannot be said to be adverse parties merely because they appear to be pro forma defendants in the cause list of the plaint.

Issue

The issue to be discussed in this article is as to whether a party without any adverse interest is permitted to cross examine the witness with reference to the following case laws-

In K. JOTHI AND ORS. VERSUS. D. PREMA AND ORS. - 2009 (8) TMI 1286 - MADRAS HIGH COURT, the Madras High Court held that cross examination of a witness is a right given to the opposite party.  The law makers have used the words ‘adverse party’ in so far as the question of cross examination is concerned.  Therefore the right to cross examine a witness was given only to the party, having adverse interest in the suit.  While considering the question as to whether a party was having interest adverse to that of the other.  For this purpose the entire pleadings have to be considered. 

In KARUMANCHI SUBBA RAO VERSUS YARLAGADDA VENKATAPPAIAH AND ORS.  - 1977 (2) TMI 141 - ANDHRA PRADESH HIGH COURT  held that the right to cross examine the witness is conferred by the statute upon the person concerned only when he was an interest adverse to the one who is proposed to be cross examined.  The very purpose of the cross examination is to test the veracity of the testimony of the witness.  In this case the defendants 3, 4 and 7 requested the Court to decree the suit of the plaintiff as prayed for by him.  The defendants specifically stated that the accounts were maintained property by the plaintiff, by no stretch of imaginations the defendants and 3, 4 and 7 can be said to have any interest that can be characterized even remotely as adverse to that of plaintiff.  Therefore they are having no right statutorily to cross-examine the plaintiff.

In CHINNAIAH VERSUS VALLIAMMAL, NACHARAMMAL, SARASU @ SAROJA, MEENAKSHI, RAMAYEE, ANVER BATCHA REPRESENTED BY HIS POWER AGENT, GNANAMBAL, RAMEEJA BEEVI, MOHAMED BASHEER, MOHAMED FATHIMA, JAIBUNNISA, GOWSINISHA BEGUM, VALLIAMMAI, RAJAMANI AND PERIYAMARUDHU NOORUNISA - 2023 (9) TMI 345 - MADRAS HIGH COURT  one civil suit was filed on the file of the I Additional District Judge (PCR), Thanjavur for partition in OS 172 of 2010.  In this case the revision petitioner, Chinniah, in the writ petition is the fourth respondent in the Civil Suit.   After the filling of proof affidavit of examination in chief by the third defendant, a memo was filed by the fourth respondent filed a memo the fourth defendant sought for the cross examination of the third defendant. The third defendant and fourth defendant are wife and husband.  It was alleged that both are having same interest and their interests are not adverse to each other.  The Court found that the third defendant and fourth defendant are not having interest adverse to each other.  The fourth defendant contended that the non permitting of the fourth defendant to cross examine the third defendant would amount to denial of opportunity in a suit for partition where all are plaintiffs.  It is not the case of the fourth defendant that he is also one of the co-sharers.  The third defendant settled her properties in the name of fourth defendant.  The third defendant is not colluded with the plaintiff.  Therefore the Court held that the fourth defendant has no right to cross examine the third defendant.  Therefore the Court did not permit the fourth defendant to cross examine the third defendant.

The fourth defendant, in the civil suit, filed the present civil revision petition before the   Madras High Court.  The petitioner took the court through various grounds and the contents of the documents which he relied.  The first respondent, in this petition, vehemently contradicted each and every argument of the revision petitioner and prayed for the dismissal of the Civil Revision Petition.

The High Court heard the arguments of both the petitioner and the first respondent.  The question framed by the High Court is as to whether a party without any adverse interest is permitted to cross-examine the witness.  The High Court observed that the pleadings of the third and fourth defendants are not contradictory to each other.  Therefore the first respondent (plaintiff in the civil suit) rightly filed a Memo point out that the third defendant being the wife of the fourth defendant does not have any adverse interest with the other with respect to the subject property of the suit.  Therefore the Trial Court rightly held that the fourth defendant is not entitled to cross examine the third defendant.  Therefore the High Court held that the impugned order passed by the Trial Court is in order and not to interfere with the order passed by the Trial Court.

Conclusion

No provision is made in the Act for the cross examination of the co-accused’s or co-defendant’s witnesses.  But the procedure to be adopted may be regulated by the well known rule that no evidence should be received against one 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 the witness called by one whose case was adverse to his, or who has given evidence against him.  If there is no clash of interest or if nothing has been said against the other party then there cannot be any right of cross examination.