Wp8842.09 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION WRIT PETITION NO. 8842 OF 2009 Smt. Sharada Dasharath Kamble ....Petitioner. Vs. Shri Nivritti Sitaram Rokade & Ors. ....Respondents. Mr. Vishwanath Talkute for the Petitioner. Mr. S.S. Kanetkar for the Respondents. CORAM : ANOOP V. MOHTA, J. DATE : 7th April, 2010 P.C.: 1 Rule, returnable forthwith. 2 Heard finally. 3 The Petitioner, who is Defendant No.11 in a Suit for partition, has challenged the impugned order dated 23/09/2009 whereby the original Defendant Nos. 1 to 4's application is allowed and the Petitioner has been denied right to cross-examine the Plaintiff basically on the ground that the Petitioner-Defendant No.11, is supporting the Plaintiff. The learned Trial Judge, has relied upon judgment of this Court, 2004(4) Mh.L.J. 620, Sunil Chhatrapal Kedar Vs. Y.S. Bagde & Anr., which revolved around Order 18, Rule 2 of the Code of Civil Procedure (for short, CPC). In that case, who should lead the evidence first, was the issue. There was no issue about no Wp8842.09 2 right to cross-examine. The facts and circumstances are totally different. The principle so laid down there, need no further discussion. The issue is, whether in the present facts and circumstances, right to cross-examine, can be denied in such fashion merely by referring to some portion of the pleadings. It is settled that the Court needs to consider the whole pleadings while assessing the rival case between the parties. 2 In the present case, admittedly, the Petitioner was joined as party on 04/10/2006. Defendant No.1 to 4 filed their written statement and resisted the suit on 28/09/2005. The Petitioner filed written statement on 05/01/2007. The Cross-examination of the Plaintiff on behalf of Original Defendant Nos. 1 to 4 was completed on 27/07/2009. The matter was adjourned for cross examination of Plaintiff on behalf of Defendant No.11. There was no objection and/or application moved either to direct the Petitioner-Defendant No.11 to cross-examine first and/or cross-examine. On the contrary, Defendant Nos. 1 to 4 proceeded and cross-examine the Plaintiff. Thereafter, on 13/08/2009 moved the application stating that the Plaintiff and the Petitioner are in collusion with each other and therefore, the Petitioner should not be allowed to cross examine the Plaintiff after completion of the cross examination on behalf of Defendant Nos.1 to 4. The learned Trial Court, in my view, in this fact itself, appreciated wrongly the Judgments so cited and the record also. In the impugned order, the learned Judge has observed that “Defendant Nos. 1 to 4’s case is that the Wp8842.09 3 Petitioner does not fit within the genealogy of Defendant Nos. 1 to 4”. The learned Judge, however observed that, "This point is to be decided on the merits of the case". 3 There are various averments made in the Written statement basically denying the case of the Plaintiff on various aspects. Merely because she is also claiming ½ share in the suit property as per the Plaintiff that itself cannot be the reason to observe that Defendant No.11 is in support of Plaintiff and/or supporting the Plaintiffs’ case. The Petitioner, has in fact, denied the basic case of plaintiff. However, on the basis of pleadings, so raised, referred to the genealogy; and the adoption in question. The impugned order means total denial to the Petitioner, to cross-examine the Plaintiff, merely because Defendant Nos. 1 to 4 have already cross- examined the Plaintiff. The requirement is that all the parties should be given full opportunity. The stage of who should cross-examine first, is now over. The right of Defendant No.11, to cross examine the Plaintiff, needs to be considered in the interest of justice. 4 In view of above, the impugned order is quashed and set aside. The application filed by Defendant Nos. 1 to 4, is rejected. The learned Trial Judge to proceed and permit Defendant No. 11-Petitioner to cross-examine and complete the trial in accordance with law. Wp8842.09 4 5 However, it is made clear that in case Defendant Nos.1 to 4 apply for re-cross-examination of Plaintiff, if Defendant No.11 supports the Plaintiff, the Court may consider to grant such application in accordance with law. 6 Resultantly, the Petition is allowed. No order as to costs. (ANOOP V. MOHTA, J.)