Jethmal Jhanwar vs Jagdish Prasad and Others

Vineet Kothari, J.—None present for the respondents despite service. The petitioner defendant No. 1 Jethmal has filed this writ petition aggrieved by the order dt. 27.7.2013 in Civil Misc. Case No. 36/2008--Jagdish Prasad vs. Jethmal whereby the learned Additional Dist. Judge No. 2, Bikaner admitted the affidavit as evidence of respondent Durga Devi and Asha Devi, who had filed the written statements admitting the plaint averments, without allowing opportunity of cross-examination to the defendant No. 1 who had filed a contrary written statement in the present partition suit and claimed that the suit property in question was his self acquired property and not a joint property and therefore, others are not entitled to any share in the suit property.

The learned counsel for the petitioner Mr. D.D. Chitlangi relying upon the decision of Madras High Court in the case of Vijaya Vs. Saraswathi and Others and the provisions of Sections 137 and 138 of the Evidence Act submitted that without allowing the defendant No. 1 to cross-examine Durga Devi and Asha Devi, the evidence in the form of affidavits of Durga Devi and Asha Devi as Examination-in-Chief could not be taken on record and admitted in evidence. He, therefore, submitted that the impugned order dt. 27.7.2013 of the trial Court deserves to be quashed.

None appears on behalf of the respondents despite service.

The provisions of Section 137 and 138 of the Evidence Act are quoted below for ready reference:

Examination-in-chief.--The examination of a witness by the party who calls him shall be called his examination-in-chief.

Cross-examination.--The examination of a witness by the adverse party shall be called his cross-examination.

Re-examinations.--The examination of a witness, subsequent to the cross-examination by the Party who called him, shall be called his re-examination.

Order of examination.--Witnesses shall be first examined-in-chief then if the adverse party so desires cross-examined, then if the party calling him so desires re-examined.

The examination and cross-examination must relate to the relevant facts, but the cross-examination need not be confined to the facts to which the testified on his examination-in-chief

Direction of re-examination.--The re-examination shall be directed to the explanation of matters referred cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the, adverse party may further cross-examine upon that matter.

The learned single Judge of Madras High Court in the case of Vijaya vs. Saraswathi (supra) in almost similar facts and circumstances has held as under:

Thus, the above provisions make it clear that the right of examining the witness is confined only to a party, who has brought action and the adversary party. Since it is not the case of the petitioner that. PW 1''s case is adverse to that of her, the Court below has rightly disallowed the cross examination on behalf of the petitioner herein. I do not see any illegality or infirmity in the said order.

Since in the partition suit, all the plaintiffs and defendants are in similar position and they are both plaintiffs and defendants, therefore, only the person who has filed the written statement contrary to the plaint averment could have a legal and valid right to cross-examine the witnesses who have filed affidavits in examination-in-chief in consonance with their written statement admitting the plaint averments and therefore, the learned trial Court ought to have allowed the defendant No. 1 an opportunity to cross-examine the defendants'' witnesses--Asha Devi and Durga Devi on such affidavits who had admittedly filed written statement admitting the plaint averments and refusal to do the same has caused serious prejudice to the defendant No. 1 Jethmal. Accordingly, the impugned order dt. 27.7.2013 deserves to be quashed and set aside. Consequently, the present writ petition of the defendant No. 1 is allowed and setting aside the impugned order dt. 27.7.2013, the learned trial Court is requested to re-summon these two witnesses for cross-examination by the defendant No. 1 on the next date fixed in the trial Court or any other suitable date convenient to the trial Court. No order as to costs. A copy of this order be sent to the parties concerned forthwith and the learned trial Court below forthwith.