1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3205 OF 2009 Preeti Vijay Sharma & Ors. .. Petitioners versus Pushkahraj Bhabutmal Jain (since deceased) through legal representatives & Ors. .. Respondents Mr.Jaydeep S. Deo for the petitioners. Mr.G.S.Godbole i/by Mr.P.G.Chavan for respondent No.1. CORAM : A.S.OKA, J. DATE : 2nd September 2009. ORAL JUDGMENT: . The submissions of the learned counsel appearing for the parties were heard on the earlier date. The petition was taken up for final disposal at the stage of admission. The challenge in this petition under Article 227 of the Constitution of India by the petitioners who are defendant Nos.28 to 31 is to the order dated 15th January 2009 passed below application at Exhibit 181. 2. The 1st respondent is the original plaintiff. The 1st respondent filed a suit for specific performance of Agreement for Sale dated 22nd June 1987 executed by the original defendant Nos.1 to 15. The challenge is also to the alienation of the property made by the defendant Nos.1 to 27 in favour of the 2 present petitioners. Various other reliefs are sought in the plaint. 3. An application at Exhibit 181 was made by the petitioners. In the application it is noted that the defendant Nos.1 to 27 have not cross- examined the witness of the 1st respondent in detail. According to the petitioners, the said defendants are acting in collusion with the 1st respondent original plaintiff. It is stated that during the course of cross- examination made by the advocate for petitioners, an objection was raised by the advocate for the 1st respondent-plaintiff to certain questions on the ground that the only defence available to the petitioners is that they are the bonafide purchasers without notice of the suit agreement and therefore the said petitioners cannot cross-examine the witnesses of the plaintiff on the suit agreement. A prayer was made by the petitioner for grant of permission to cross-examine the 1st respondent and his witnesses on the basis of the pleadings of the 1st respondent and his affidavit in lieu of examination-in- chief. The said application was opposed by the 1st respondent plaintiff. By the impugned order, the learned Judge disposed of the application by making following observations: “ I have carefully gone through these case laws submitted by the learned counsel for the defendants. In my humble view, all these case laws are not applicable to the case in hand for the reason this the facts are different. Observations in AIR 2007 SC2 663 cited supra squarely applicable to the present case. Although, it is established principle of law that it is privilege of the defendant to cross examine the plaintiff to elucidate the truth but in the case where law has restricted the defendants or where defendant is not party to the agreement as in the present case and where defence of the defendant is restricted in view of section 19(b) of the Specific 3 Relief Act which provides defence to the purchased only of bonafide purchased for value without notice, defendants of the not cross examine the witness or the plaintiff on the legality of the agreement executed between plaintiff and defendant Nos.1 to 27 by defendant Nos.28 to 31. With these observations application is disposed off.” 4. The learned counsel appearing for the petitioners has placed reliance on decisions of this Court in the case of Santa Monica Convent @ Convento de Santa Monica @ Mosteiro de Santa Monica [2006 (3) ALL MR 99] and submitted that the cross-examination by the petitioners cannot be restricted. He also placed reliance on a decision of this Court in the case of Sheshrao Raibhan Ingale Vs. Shilpa Sheshrao Ingale [2005 (1) Maharashtra Law Journal 188]. 5. The learned counsel appearing for the 1st respondent placed reliance on the decision of the Apex Court in the case of M.M.S.Investments Madurai and others Vs. V. Veerappan and others (AIR 2007 Supreme Court 2663). He submitted that in view of what is laid down by the Apex Court in paragraph No.6 of the said decision, the only plea which can be agitated by the petitioners is whether they were bonafide purchasers without notice of the suit agreement. He submitted that it is not open for the petitioner to challenge the readiness and willingness of the 1st respondent-plaintiff. He pointed out that in the written statement filed by the petitioners there is no specific denial to the averments made in the plaint of readiness and willingness. He, therefore, submitted that the learned trial Judge was 4 justified in not granting relief in favour of the petitioners. 6. I have given careful consideration to the submissions. The effect of the observations made by the trial Court in the impugned order is that the advocate for the petitioners will not be permitted to cross-examine the 1st respondent on his readiness and witnesses and on the legality and validity of the suit agreement of which specific performance was was sought by the 1st respondent. The learned Judge has observed that the cross-examination will be restricted to the defence of the petitioners of being bonafide purchasers without notice of the suit transaction. 7. It will be necessary to refer to the decision of this Court in the case of Santa Monica Convent (supra). This was a case where this Court considered the question whether the failure to file written statement would divest a defendant of his right to cross-examine the plaintiff in relation to the affidavit which is produced by the plaintiff. While dealing with this aspect, in paragraph 11 this Court held thus: “11. Needless to say that failure to file the written statement would not divest the defendant of his/her right to cross-examine the plaintiff in relation to the affidavit evidence produced by the plaintiff. Undoubtedly, the defendant will not be entitled to put forth his/her case in such a situation but the defendant would be entitled to challenge the credibility of the evidence produced by the plaintiff and even to point out whether any particular evidence is admissible or non- admissible including the documentary evidence produced by the plaintiff. Undisputedly, no such exercise has been done in the case in hand. Being so, while setting aside the judgment of the trial Court, it 5 was necessary to remand the matter to be proceeded with from the stage of filing of the affidavit evidence by the plaintiff.” 8. It will be also necessary to refer to a decision of the Division Bench of this Court in the case of Sheshrao Ingale (supra). This was a case where a Division Bench considered the question whether a defendant whose defence has been ordered to be struck out can be prevented from cross-examining the plaintiff and his witnesses. The Division Bench answered the issue by holding that such a defendant can cross-examine the plaintiff and his witnesses and such a defendant can show on the basis of the material on record that the plaintiff was not entitled to a decree. 9. Now adverting to the decision of the Apex Court in the case of M.M.S Investments (supra) it must be stated that the 1st respondent before the Apex Court was the plaintiff in a suit for specific performance. The decree for specific performance was passed by the trial Court. After the decree was passed, the defendants through their power of attorney holder sold large extent of the suit property in favour of the third parties who were the appellants before the Apex Court. An appeal was filed by some of the original defendants before the High Court for challenging the decree for specific performance. In the said appeal the appellants before the Apex Court who were the subsequent purchasers made an application for impleading themselves as parties to the appeal. The said application was dismissed by the learned single Judge of the High Court. An appeal was 6 preferred before the Division Bench and the said appeal was allowed. While allowing the appeal, the Division Bench of the High Court held that there is no bar for the appellants to raise any issues on the merits of the appeal except the defence of readiness and willingness as provided under section 16(c) of the Specific Relief Act, 1963. 10. Thus, the Apex Court was dealing with a case where after a decree for specific performance was passed, some of the defendants sold the property to third parties and Apex Court was dealing with a question whether the third parties could be impleaded as parties in an appeal challenging the decree for specific performance. The Apex Court observed that the question of readiness and willingness cannot be pressed into service by the appellants who had purchased the suit property after passing of the decree. The Apex Court was not dealing with a case where in a suit for specific performance, persons claiming title from the vendors subsequent to the execution of the suit agreement were impleaded as party defendants. 11. On the basis of the aforesaid decision of the Apex Court, the trial Court could not have restricted the cross-examination. The petitioners have filed written statement raising various contentions. The petitioners have denied various averments made in the plaint. The petitioners are entitled to cross-examine the 1st respondent and his witnesses on all points and their cross-examination cannot be restricted. It goes without saying that the 7 petitioners cannot be allowed to come out with a case which is inconsistent with the case made out in the pleadings or a case for which there is no foundation in the written statement. 12. Hence, the petition must succeed and the impugned order will have to be set aside. 13. Hence, I pass the following order: : O R D E R : (a) The impugned order is quashed and set aside and it is clarified that subject to what is observed above, the petitioners will be entitled to cross-examine the 1st respondent and his witnesses in accordance with law and their cross-examination cannot be restricted to the plea of being bonafide purchasers without notice of the suit agreement. (b) All contentions of the parties in the pending suit are expressly kept open. (c) Hearing of the suit is expedited. (A.S.OKA,J)