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Judgment
C.S. Karnan, J.—The revision Petitioner/ Petitioner/4th Defendant has filed the above revision to call for and set aside the order dated
15.07.2011 in memo dated 14.06.2011 in O.S. No. 5 of 2009 on the file of the Fast Track Court, Dindigul.
The brief facts of the case are as follows:
The first Respondent herein/plaintiff has filed a suit in O.S. No. 5 of 2009 on the file of Additional District Judge, Fast Track Court, Dindigul
against the revision Petitioner and three Respondents herein/defendants for the following relief;
(a) For specific performance of the suit contract of sale dated 18.01.2006 by directing them to execute a sale deed for Rs. 1,18,15,000/- after
deducting the advance of Rs. 45,00,000/- and receiving the balance of Rs. 73,15,000/- before a date to be fixed by the Court;
(b) In case of failure on the part of the Defendants in doing so, order the same to be done through process of court;
(c) Direct the Defendants to deliver possession of the suit properties to the Plaintiff;
(d) For injunction restraining the Defendants, their men, servants, agents and all persons claiming under them from altering and changing the
physical features and cause damages to the suit property;
(e) Alternatively direct the Defendants to pay a sum of Rs. 76,44,000/- with interest 24% per annum from the date of plaint till date of realization if
no decree for Specific Performance could be granted;
(f) Create a Charge for realization of the said sum over the suit properties;
The 2nd and 4th Defendants have filed their written statements and resisted the suit on various grounds. Subsequently, the learned Judge framed
issues and conducted trial. When the suit is at a partly heard stage, the 4th Defendant has filed memo stating that the Plaintiff is colluding with
Defendants 2 and 3 and therefore the 4th Defendant has prayed the Plaintiff to cross examine D.W.1. The same was objected by the first Plaintiff.
The learned trial Judge, after hearing both sides dismissed the plea of the 4th Defendant, which was raised in his memo on 15.07.2011. Against
this order, the 4th Defendant has filed the above revision petition to set side above order.
The Learned Counsel for the Petitioner argued that the Plaintiff and the Defendants 1, 2, and 3 had colluded with one another and therefore the
Defendants 1, 2 and 3 have to first cross examine P.W. 1 to establish the factum of the case. If the trial court considers the plea of the 4th
Defendant favourably the interests of the other parties will not be prejudiced.
In support of his contention, the Learned Counsel for the Petitioner cited a judgment in the case of Motiram Narwari v. Lalit Mohan Ghose
reported in AIR 1920 Pat 94. The relevant portion of the said judgment reads as follows:
Practice - Evidence - Cross-examination -Some Defendants supporting Plaintiff''s case and Ors. opposing it - Former set should be ordered to
cross-examine Plaintiff''s witnesses and adduce evidence before calling upon contesting Defendants.
In another unreported judgment of the Hon''ble High Court of Delhi in the case of I.A. No. 5926/08 in Suit No. CS(OS) No. 234/97 (Ajith
Singh Gill and others v. Arvind Khosla and Anr.. The relevant portion of the said judgment reads as follows:
The counsel for Defendant No. 1 has in support of the application referred to the Sections 137 and 138 of the Indian Evidence Act and relied
upon the judgment in Karumanchi Subba Rao Vs. Yarlagadda Venkatappaiah and Others, to canvass that only an adversary is entitled to cross
examine. He has submitted that the Defendant No. 2 is not an adversary of the Plaintiff and has no right to cross examine the Plaintiff. It is further
submitted that the cross examination of the Plaintiff by the Defendant No. 2 after the cross examination by the Defendant No. 1 would nullify the
cross examination affected by the Defendant No. 1.
The Learned Counsel for the Respondent argued that the allegation made by the 4th Defendant that the Plaintiff has colluded with Defendant 1
to 3 is vague and is not based on any documentary or other believable evidence. The Learned Counsel further argued that the court proceedings
the court''s discretionary power. The 4th Defendant cannot insist the court to follow his view for further adjudication.
In the facts and circumstances of the case and arguments advanced by the Learned Counsels on either side and on perusing the order passed by
the learned Judge in the memo, this Court is of the considered opinion that there is no infirmity in the said order passed by the learned Judge in the
memo in O.S. No. 5 of 2009 dated 15.07.2001 on the file of Fast Track Court, Dindigul. Further, this Court opines that all civil cases have to be
decided as per civil court procedure and discretion of the learned Judge. Hence, the above civil revision petition is dismissed. this Court directs the
learned judge to dispose the case as early as possible. Accordingly ordered.
In the result, the above civil revision petition is dismissed. consequently, the order passed in memo in O.S. No. 5 of 2009 dated 15.07.2001
on the file of Fast Track Court, Dindigul is confirmed. Connected M.P. is closed. There is no order as to costs.