Civil Revision No. 4461 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 4461 of 2010 (O&M) Date of decision: 21.09.2010 Ramesh Chand and another ....Petitioners Versus Jaimal Singh and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. C.B. Goel, Advocate, for the petitioners. Mr. Ashish Gupta, Advocate, for respondent No.1. ***** VINOD K. SHARMA, J (ORAL) This order shall dispose of Civil Revision No.4461 of 2010 titled Ramesh Chand and another Vs. Jaimal Singh and others and Civil Revision No.6085 of 2010 titled Sachin Vs. Jaimal Singh and others, as common questions of law and facts are involved in this case. For brevity sake, facts are being taken from Civil Revision No.4461 of 2010. The petitioners have invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, to challenge the order dated 9.6.2010 passed by the learned trial Court, vide which the application moved by the petitioners for directing defendant No.9, to cross examine the witnesses of the plaintiffs first, before the other defendants were asked to cross examine, stands declined. The case set up by the petitioners in the application was, that defendant No.9, was colluding with the plaintiffs, therefore, defendant No.9 should be directed to cross examine, the witnesses of the plaintiffs Civil Revision No. 4461 of 2010 (O&M) -2- first, before the other defendants were asked to cross examine. The application was contested, wherein it was pleaded by defendant No.9, that it was the petitioners, who moved an application for impleading defendant No.9, as party to the suit, therefore, there was no question of defendant No.9 colluding with the plaintiffs. It was also the stand of defendant No.9, that contesting written statement was filed in Court, in which the counter-claim was also filed, therefore, it cannot be said that the plaintiffs and defendant No.9, were colluding with each other. The learned trial Court accepted the stand of defendant No.9, and keeping in view the fact that plaintiffs as well as all the defendants were inter-related, came to the conclusion that defendant No.9, was not colluding, but had filed a contesting written statement, thus dismissed the application. Mr. C.B. Goel, learned counsel, appearing on behalf of the petitioners, has challenged the order on the ground, that while recording the finding that defendant No.9, was contesting the claim, the learned trial Court misread the pleadings of the parties. Learned counsel for the petitioners referred to the plaint, in which the relief claimed by the plaintiffs is to challenge the consent decree passed in favour of the plaintiffs and the defendants by claiming it to be null and void and not binding on the rights of the parties, being not based on family settlement, as alleged. Learned counsel for the petitioner also read the written statement filed by defendant No.9. In the written statement this stand of the plaintiffs was not Civil Revision No. 4461 of 2010 (O&M) -3- contested. Rather similar stand is taken by defendant No.9, by asserting that the decree was illegall, null and void. Though, it has been mentioned that the decree was obtained by the plaintiffs and the defendants at the back of defendant No.9. In the written statement it was asserted, that there was no family settlement between the parties, therefore, the decree was totally illegal and null and void. This stand shows that defendant No.9 was not contesting the suit of the plaintiffs. On consideration, I find force in the contention raised by the learned counsel for the petitioners. For the reasons referred to above, it is proved, that written statement filed by defendant No.9, was not contesting written statement, on the main point, raised to challenge the consent decree. Nothing was shown as to whether counter-claim of defendant No.9 was contested or not. In view of the law laid down by the Hon'ble Bombay High Court in Mandabai Ramkrishna Tumsare and others Vs. Ramlal Hiramanji Hiwarkar and others, 1986 Mh.L.J. 643 holding, “that sub- rule (4) of Rule 2 of Order 18 of the Code of Civil Procedure categorically states that notwithstanding anything contained in this Rule, the Court may, for reasons to be recorded, direct or permit any party to examine any witness at any stage. As to the order in which evidence is to be taken, the rule is that the plaintiff and such of the defendants as supported his case, wholly or in part, must address the court and call their evidence and then the 'other party' i.e. the other defendants contesting the plaintiff's claim should address the court and Civil Revision No. 4461 of 2010 (O&M) -4- call their evidence. The Trial court has to bear in mind which is the party who has a right to begin and which is the adverse party who has a right to cross-examine. It is apparent that the plaintiff's case was fully supported by the defendants other than defendant No.1. They were, therefore, not an adverse party to the plaintiff but were proforma defendants through whom the plaintiff was claiming a right to the property. In a case like this, the evidence of the plaintiff having been recorded, it would be just and proper to ask the proforma defendants to initially cross-examine the plaintiff. If there are more than one defendant in a suit, the order of their cross-examination is a matter which rests on the discretion of the Judge. Cross-examination as defined in Section 137 of the Evidence Act is the examination of the witness by adverse party and the defendants who are supporting the plaintiff's case are not an adverse party. Therefore, their formal cross- examination should be brought on record and it is then that the contesting defendant, the real adverse party, should be directed to cross-examine the plaintiff”, and the judgment of the Hon'ble Patna High Court in Motiram Narwari Vs. Lalit Mohan Ghose, AIR 1920 Patna 94 taking similar view, this revision petition is allowed. The learned trial Court is directed to get the plaintiffs' witnesses cross examined first by defendant No.9 before asking other defendants to cross examine the witnesses. The learned trial Court is directed to expedite the hearing of the case. (Vinod K. Sharma) September 21, 2010 Judge R.S.