1 W.P.No.4116/10 UNREPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.4116 OF 2010. Sau.Anita W/o Shirish Gite, Age 38 years, Occ.Household, R/o Somesh Colony, Nanded, Tq. and Dist.Nanded. ... Petitioner. Versus 1. Raghunath S/o Yankoji Ghuge, Age 60 years, Occ.Agril., R/o Mangalwara Near Pola Maroti, Hingoli, Tq. and Dist.Hingoli. 2. Jagannath S/o Yankoji Ghuge, Age 58 years, Occ.Agril., R/o Mangalwara, Hingoli, Tq. & Dist. Hingoli. 3. Pandharinath S/o Yankoji Ghuge, Age 55 years, Occ.Agril. R/o as above. 4. Ramchandra S/o Yankoji Ghuge, Age 55 years, Occ.Agril., R/o as above. 5. Ghanshyam S/o Yankoji Ghuge, Age 55 years, Occ.Agril. R/o as above. 6. Sow. Mandakini W/o Jagannath Ghuge, Age 48 years, Occ.Household, R/o as above. 7. Sow. Kanchan W/o Prasannakumar 2 W.P.No.4116/10 Badera, Age 44 years, Occ. Household & Business, R/o Near Jain Mandir, Hingoli. 8. Manish S/o Ramchandra Ghuge, Age 33 years,Occ.Agril., R/o Mangalwara, Hingoli, Tq. and Dist.Hingoli. 9. Naresh S/o Narayanrao Bangar, Age 53 years, Occ.Agri. & Business, R/o Vanjarwada, Hingoli, Tq. and Dist.Hingoli. 10. Dattarao S/o Narayanrao Bangar, Age 52 years, Occ. Agril., R/o as above. 11. Vishal S/o Ramchandra Ghuge, Age major, Occ.Agril.,R/o Mangalwara, Hingoli, Tq. & Dist.Hingoli. ... Respondents. ... Mr.H.V.Patil, advocate for the petitioner. Mr.S.S.Choudhari, advocate for Respondent Nos.3 and 5. Mr.R.D.Sanap, advocate for Respondent Nos.2 and 6. Mr.D.L.Khivesara, advocate for the Respondent No. 7. Mr.P.S.Agrawal, advocate for Respondent No.9. Respondent Nos.4 to 10 served. ... CORAM : S.V.GANGAPURWALA,J. Date : 08.12.2011. 3 W.P.No.4116/10 ORAL JUDGMENT : 1. Heard. 2. Rule. Rule returnable forthwith. With the consent of the parties,the petition is taken up for final hearing. 3. The present petitioner is the original defendant No.5. The present Respondent No.1 has filed suit for partition and separate possession. It appears that the defendant Nos.2 to 6 have filed common written statement. Thereafter, the present petitioner filed an application seeking permission to file independent Written Statement. The said application was rejected. The defendants Nos.3,4 and 5 have filed their examination-in-chief. The petitioner filed application to cross-examine the said defendants. The said application is rejected. Aggrieved thereby, the present petition is filed. 4. Mr.Choudhari, learned counsel for Respondent Nos.3 and 5 strenuously opposes the petition and submits that it is only the adverse 4 W.P.No.4116/10 party who can cross-examine the co-defendant. As the present defendant has filed common written statement, he is not an adverse party. As such the application is rightly rejected. 5. Mr.H.V.Patil, learned counsel for the petitioner relies on the judgment of the learned Single Judge of this Court in a case of "Vidarbha Irrigation Development Corporation Vs. 3rd Ad hoc Additional District Judge, Nagpur and others" reported in 2008 (4) ALL MR 366 and submits that the right to cross-examine can not be refused merely on the ground of common defence. 6. It appears that subsequently the present petitioner had tried to file a separate written statement, though the same was not allowed. It shows that the present petitioner had developed an interest adverse to the other defendants. As such, it can not be strictly said that the petitioner is not an adverse party. Moreover, the suit is for partition and separate possession, where each and every party is in a position of plaintiff. 5 W.P.No.4116/10 7. The learned Single Judge of this Court in a case of "Vidarbha Irrigation Development Corporation Vs. 3rd Ad hoc Additional District Judge, Nagpur and others" referred supra has also held that the right can not be refused, merely on the ground of commence defence. What would be the efficacy and the significance of the said cross-examination and to what extent, the same would be permitted is a different issue altogether. 8. In light of the above, the impugned order is quashed and set aside. 9. Rule is made absolute in terms of prayer clause (B). No costs. (S.V.GANGAPURWALA,J.) asp/office/wp411610 6 W.P.No.4116/10