1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6437 OF 2008 Shri Fardoon Sheriar Mazda. ..Petitioner. Versus Shri Shahrookh Rustom Mazda, since deceased, through L.R. a) Mrs.Nargis S. Mazda & Anr. ..Respondents. ... Ms.Lalita Panchakshari, Advocate for the petitioner. Mr.Agnel Carneiro, Advocate i/b. M/s. Mulla & Mulla and CBC for respondent No.1(A) ... CORAM : SMT.V.K.TAHILRAMANI,JJ DATED : 6TH MAY, 2009. P.C. :- 1. Heard the learned Advocate for the petitioner and the learned Advocate for the respondent. 2. The brother-in-law of the petitioner had filed a Suit for mandatory injunction against the orig.defendant No.1 i.e. wife of the petitioner and the petitioner who is orig.defendant No.2 therein. In the said proceedings the wife of the petitioner came to be cross-examined by the orig.plaintiff. However, thereafter an application came to be preferred by the petitioner for permission to cross-examine orig.defendant No.1 i.e. his wife. The said application (Exh.108) came to be rejected by the learned Judge by order dated 25th March, 2008. 2 The learned Judge observed that defendant Nos.1 &2 are husband and wife . On perusal of their written statements the theory made out by both of them is the same. Hence, it is not necessary to call defendant No.1 i.e. wife of the petitioner,for cross-examination by defendant No.2 who is husband of defendant No.1 especially as their interest is not contrary to each other. 3. It may be stated here that while the suit for mandatory injunction was pending between the wife of the petitioner and her brother he expired and he is now represented by his legal heirs. 4. I have perused the plaint as well as the written statements filed by defendant Nos.1 & 2 i.e. present petitioner and his wife. In the plaint it is mentioned that defendant No.2 i.e. present petitioner is husband of defendant No.1 and he is attending the said unauthorized construction. He is therefore made party to the suit so that there may not be any objection for non-joinder of parties. In the written statement filed by defendant No.1 i.e. wife of the present petitioner, she has stated that : “It is true to say that the Defendant No.2 is the husband of Defendant No.1. However, it is not true to say that he is attending the unauthorized construction.” Defendant No.2 i.e. wife of the present petitioner, in her written statement has further stated that : “The Suit is bad for misjoinder of parties as the Defendant No.2 has nothing to do with the suit and he is dragged in the litigation unnecessarily. The Defendant No.2 is a law 3 abiding citizen and has never interferred in the litigation between brother and sister.” 5. In the written statement of the petitioner it is stated as under : “This Defendant is unnecessarily dragged into this case as he is not the owner of the property.” ...... “The Defendant No.2 is the husband of Defendant No.1. The property was in possession of the Defendant No.1 eversince the beginning.” 6. It is an admitted fact that there are no disputes inter se between the husband and wife. Moreover, on perusal of the above, it is seen that there are no allegations or complaints by the petitioner and his wife against each other in the written statements. It is further seen that the interest of both the parties i.e. defendant No.1 (wife of petitioner) and defendant No.2 (petitioner) is the same. So also, there is no adverse claim between the parties. As the interest of the petitioner and his wife is not adverse to each other, and the above facts I do not think it necessary for the petitioner to cross-examine his wife. No prejudice can be said to be caused to the petitioner if he is not allowed to cross- examine his wife. 7. In such case, no error can be found with the order of the learned Judge rejecting the application filed by the petitioner for cross- examination of defendant No.2 i.e. his wife. Writ Petition is rejected. No order as to costs. [SMT.V.K.TAHILRAMANI,J.]