IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 11 OF 2009 MRS. LILIANA PEREIRA ALIAS MARIA TEODOSIA LILIANA ANGELINA DA COSTA AND 7 ORS., ... Petitioners Versus MRS. ANTONEITA CARVALHO E FURTADO AND 4 ORS., ... Respondents Mrs. A. A. Agni,Advocate for the petitioners. Coram:- U. D. SALVI, J. Date:- 10th July, 2009 P.C. Heard. None for the respondents though served with the notice of this petition. Perused the petition and annexures therewith. The petitioner is assailing the order dated 29.11.2008 passed by Adhoc District Judge-II FTC II, Margao declining to the petitioners a right to cross-examine the plaintiff P.W.1 Vijayanand Naik in Special Civil Suit No.61/2007/FTC-II. The petitioners/ the original defendant Nos. 5 to 12 in the said special civil suit are the lawful owners of the suit property, who had entered into an agreement to develop the suit property with M/s. Aditya Builders and Developers of which P.W.1 Vijayanand Naik is the partner and the plaintiff M/s.Aditya Builders and Developers by virtue of the said agreement were/are under obligation to construct and allot four flats to the petitioners/defendants in terms of the Agreement of Sale and Exchange dated 7.5.1999; and the plaintiff can not construct and allot the four flats to the defendant Nos. 5 to 12 since an injunction order pending is not decided by the Court and/or settled by the landlords, the defendant Nos. 5 to 12. This fact has been pleaded in para No.16 of the plaint. The petitioners in response to the said para have merely pleaded that the plaintiffs have not constructed and allotted these four flats to them and they reserve the right to file separate suit for damages against the defendant Nos.1 to 3 and others-mundkars in the adjacent property. 2. The learned Trial Court refused to afford an opportunity to cross-examine the plaintiff P.W.1 Vijayanand Naik in following terms : " The learned Advocate Shri T. Dias for the defendant Nos. 5 to 12 seeks opportunity to cross-examine the witness. It is found that the defendant Nos. 5 to 12 stand almost in the shoes of the plaintiff. Section 137 for the Indian Evidence Act, 1872 defines the cross-examination. It reads as follows : "Cross-examination - Examination of witness by the adverse party shall be called his cross-examination." Reading of Section 137 of Indian Evidence Act 1872, shows that the examination of the witness by the adverse party is called cross-examination. Therefore the supporting party does not have a right to cross-examine. If at all he wants to examine the witness,he should exercise his rights immediately after the examination-in-chief and before the adverse party starts to cross-examine the witness. The defendant Nos. 5 to 12 did not exercise the right to cross-examine the witness immediately after the examination of chief was completed thereby they have forfeited their rights to do so. Allowing the supporting party to cross-examine the witness after the adverse party has cross-examined him would allow the supporting party to put leading questions and destroy the cross-examination of the adverse party against which the adverse party would have no remedy in law. Therefore, the defendant Nos. 5 to 12 are disallowed for cross-examining P.W.1 at the stage." 3. The learned Advocate Agni for the petitioners submitted that the cross-examination of the witness P.W.1 Vijayanand Naik is needed to test the veracity of the averments made by the witness that the premises have not been allotted to the Landlord / the petitioners herein as stay was brought by the defendant Nos. 1 and 2. Considering the judgment cited by the petitioners and reported in 1997 A I H C 1353 Shri Shrikant R. Shirdokar, Versus Xabirabi Shaik Kadar, one can see that merely on pleadings alone adversity between the parties cannot be determined. In the instant case, it is necessary to ascertain the veracity of the averments made by the witness at para 27 of his examination-in-chief. The impugned order, therefore, needs to be set aside. The petitioners are permitted to cross-examine the witness only in relation to the averments made by the witness in para 27 of his examination-in-chief subject to all limitations on cross-examination under the Evidence Act and right of the other defendants to further cross-examine the witness, if any new thing adverse to them, is brought on record. The petition is allowed accordingly with no order as to costs. U. D. SALVI, J. SMA