9911796707
TMI Blog2023 (9) TMI 345X X X X Extracts X X X X X X X X Extracts X X X X ..... Additional District Judge (PCR), Thanjavur. For the sake of convenience, the parties herein are referred to as arrayed in O.S.No. 172 of 2010. 2. The revision petitioner herein is the fourth defendant in the said Memo. The suit in O.S.No.172 of 2010 was one for partition. After the filing of proof affidavit of examination-in-chief by the third defendant, a Memo was filed by the first respondent / petitioner / plaintiff stating that, the 'third defendant' is the wife of the fourth defendant. Though they have filed separate written statements, they have no conflicting interest adverse to each other. They do not make any claim against each other as well. The written statement filed by both of them are one and the same and in the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and all are defendants. It is not the case of the fourth defendant that he is also one of the co-sharer. According to him, his wife the third defendant settled her properties in his name. Further it is not the case 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dian Evidence Act, 1872. Sections 137 and 138 of the Indian Evidence Act, 1872 are as follows: "137. Examination-in-chief. The examination of a witness, by the party who calls him, shall be called his examination-in-chief. Cross-examination. The examination of a witness by the adverse party shall be called his cross-examination. Re-examination. The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination. 138. Order of Examinations. 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndant 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 husband. 13. This Court in the case of K.Jothi and Others Vs. D.Prema and Others reported in [MANU/TN/1989/2009] dated 11.08.2009 has dealt with a similar issue and the relevant portion of the same is extracted hereunder: "19. Cross-examination of a witness is a right given to the opposite par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue and the relevant portion of the same is extracted hereunder: "12. A reading of the aforesaid provisions of law indicates that the right to cross-examine the witness is conferred by the statute upon the person concerned only when he has 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. When the plaintiff as well as defendants 3, 4 and 7 as in this case, are sailing together in the sense that defendants 3, 4 and 7 requested the court as matter of fact to decree the suit 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... afe 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 clash of interest or if nothing has been said against the other party, there cannot be any right of cross-examination." 16. The Hon'ble High Court of Calcutta in State of West Bengal and Others Vs. Ramadevi and Others reported in [MANU/WB/0235/2002] dated 24.05.2002 in paragraph No.10 has held as follows: "10. Therefore, upon perusal of the scheme of the Section 137 and 138 it is clear that the right of examining the witness confined only to a party who has brought action and the adversary party. Moreover, the examination of the witness must relate to relevant facts ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
