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TMI Blog2023 (9) TMI 345X X X X Extracts X X X X X X X X Extracts X X X X ..... hird defendant by the fourth defendant. As per Section 138 of the Indian Evidence Act, 1872 only an 'adverse party' can cross-examine the other parties. Being co-defendants admittedly the fourth respondent husband is not an 'adverse party' to the third defendant wife. Hence, the impugned order passed by the learned I Additional District Judge (PCR), Thanjavur dated 04.09.2015 is in order and it is not necessary to interfere with the order passed by the learned I Additional District Judge (PCR), Thanjavur. The learned I Additional District Judge (PCR), Thanjavur is directed to dispose of O.S.No.172 of 2010 as expeditiously as possible within a period of three (3) months from the date of receipt of the copy of this order - this Civil Revision Petition stands dismissed. - MRS. L. VICTORIA GOWRI, J. For Petitioner : Mr. G.Karnan For R-1 : Mr.P. Vadivel For R-2 to R-15 : No appearance ORDER This Civil Revision Petition is filed against the order passed in Memo dated 04.09.2015 filed by the plaintiff / first respondent in O.S.No.172 of 2010 on the file of the I Additional District Judge (PCR), Thanjavur. For the sake of convenience, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the fourth defendant that the third defendant is colluded with plaintiff. Hence, this Court is of the considered view that the fourth defendant has no right to cross-examine the third defendant as the fourth defendant has no adverse interest as against the third defendant. Accordingly, this Court decides that the fourth defendant shall not be permitted to cross-examine third defendant. As against the said order, this Civil Revision Petition is filed. 4. Heard the arguments of both the learned Counsels for the petitioner as well as the first respondent anxiously and perused the materials available on records. 5. The learned Counsel for the petitioner took me through the various grounds of the Civil Revision Petition and the contents of the documents which he relied. The learned Counsel for the first respondent vehemently contradicting each and every argument of the revision petitioner pressed for dismissal of this Civil Revision Petition. 6. The pertinent question to be decided in the facts and circumstances of this case, is that, whether a party without any adverse interest be permitted to cross-examine the witness? 7. The Advanced Law Lexicon authored by Shri. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no party could be considered as party without adverse interest as against each other. Such an argument is not sustainable. Because the third defendant is a proforma defendant in the cause-title of the plaint, since she is the wife of the fourth defendant, who has claimed to have settled her properties in the name of the fourth defendant. 12. The pleadings of both the third and fourth defendants in their written statement are not contradictory and they sail together. Hence, the first respondent / petitioner / plaintiff had rightly filed a Memo pointing out that, the third defendant being the wife of the fourth defendant, do not have any adverse interest with the other with respect to the subject property of the suit. The fourth defendant should not be permitted to cross-examine the third defendant. As per Section 138 of the Indian Evidence Act, 1872, only an 'adverse party' can cross-examine the other parties. This is a case where a husband and wife as the third and fourth defendants, sail together to repudiate the claim of the plaintiff in the partition suit, by the strength of the settlement deed executed by the third defendant wife in favour of the fourth defendant hu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the plaintiff as prayed for by him and in view of the further fact that the defendants specifically stated in their written statement that the accounts were maintained properly by the plaintiff, by no stretch of imagination defendants 3, 4 and 7 can be said to have any interest that can be characterised even remotely as adverse to that of the plaintiff. Under these circumstances, I am satisfied that Sri Narasimha Rao is quite correct in his contention that persons in the position of defendants 3, 4 and 7 cannot be said to have any right statutorily to cross-examine the plaintiff........... 15. The defendant may cross-examine the co-defendant or any other witness, who has given evidence against him and a reply on such evidence though there is no joint issue between them. In this case, the third defendant being the co-defendant of the fourth defendant has not given anything against the fourth defendant in her proof affidavit in examination-in-chief. No doubt when there is no clash of interest between the third and fourth defendants and nothing has been said as against the fourth defendant by the third defendant, there cannot be any statutory right of cross-examination of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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