9911796707
TMI Blog2002 (5) TMI 893X X X X Extracts X X X X X X X X Extracts X X X X ..... his question of right of examining the witness of the plaintiff by the defendant No. 3 has to be decided first to which I agree. The decision is as follows :-- Mr. Sharma with the leave of Mr. Mitra submits that under the Evidence Act the witness can be examined by the party who has called him and by the adversary party and there is no contemplation of further examination by any of the parties in the Evidence Act 1872. His further contention is that the defendant No. 3 has not filed any written statement to put his case, rather he is depending upon result of the suit in favour of the plaintiff. In the guise of friendly cross-examination, a further examination-in-chief cannot be allowed to be done by the pro forma defendant. If it is allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will get lease for which an application has been made and the same is kept pending. This application cannot be disposed of in view of the pendency of the suit and for the existence of the decree and the conveyance which are challenged in the suit. 6. Moreover, he has drawn my attention to the various orders of the Supreme Court whereby the client's right, and interest are said to have been recognised so much so he can participate in the hearing of the suit. Unless his client is allowed to examine the witnesses of both the parties, his right as well as the interest cannot be established or protected by this Court. 7. Having heard the respective contentions of the learned Counsels, I am to decide whether pro forma defendant, who ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of right either by citing witness or producing documents, as it appears from the scheme of chapter X of Indian Evidence Act 1872. So I quote the relevant section of the above chapter. 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. Order of examination 138. Witness shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f to the category of the plaintiff. When this question was raised I decided against Mr. Das's client. I am told no appeal was preferred against the aforesaid order. 13. Admittedly, Mr. Das's client is not an adversary to the plaintiff, so he cannot examine witness of the plaintiff. In the scheme of the Evidence Act there is no provision for friendly cross-examination by the pro forma defendant. The proforma defendant, in my view has to play a role akin to a witness and it cannot have any stake in the result of the hearing of the suit. Its right by any stretch of imagination will not be affected in any manner. Mr. Sharma has appropriately placed judgment of Gujarat High Court reported in AIR1981Guj190 . This judgment of Justice Ah ..... X X X X Extracts X X X X X X X X Extracts X X X X
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