IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1437 of 2006 BINOD KUMAR Versus MANOJ KUMAR & ORS ----------- 2. 19.11.2008 Heard counsel for the petitioner. The grievance of the petitioner, who is contesting defendant no.2 in a partition suit of not being allowed to cross-examine the plaintiff’s witness on the ground that the plaintiff and the petitioner- defendant no.2 are sailing on the same boat by itself seems to be quite justified. However, from the impugned order it would not appear that this was the reason for declining opportunity to cross-examine to the petitioner. The court below in fact has put the matter in another manner, inasmuch as it has been held that when the witness came to the box and was cross- examined by defendant no.1 either before it or even thereafter, defendant no.2 the petitioner did not make prayer for cross- examining the witness. Mr. Dayanand Singh, learned counsel appearing on behalf of the petitioner, however, submits that he was personally 2 present on the date when witness no.2 of the plaintiff was examined and as a matter of fact the court had declined opportunity for cross-examining the said witness by defendant no.2 only on the ground that both of them (plaintiff and defendant no.2) were sailing on the same boat. This fact, however, has not been stated in the application, as contained in Annexure 1, and therefore, it would be in the fitness of things that the petitioner should approach the court below by filing a fresh application seeking opportunity for cross- examining witness no.2 of the plaintiff. In the event such an application is filed the court below will pass an appropriate order keeping in view that disallowing a party to cross-examine the witness by itself may some time cause a major infirmity in the entire proceeding. That being so, the court below should not be guided by the mere presumption of the plaintiff and defendant no.2 of sailing in the same boat and that too in a suit of partition. 3 This application is, accordingly, disposed of with the aforementioned observation and direction. (Mihir Kumar Jha,J.) Surendra/