Kartar Singh and Others vs Sukhbir Singh and Another

G.C. Garg, J.—This order will dispose of Civil Revisions 2389 and 1425 of 1993 as both these petitions arise out of the same order of the trial court.

Sukhbir Kaur widow of Pritam Singh filed a suit for declaration and rendition of accounts against Kartar Singh, Gurbachan Singh, Gurmukh Singh, Isher Singh and Jagdish Singh. After sometime, Gurmeet Singh, defendant 6 herein claiming to be the adopted son of Pritam Singh moved an application that he be also impleaded as party to the suit. He did not specify whether he wanted to be impleaded as a defendant or a plaintiff in the suit. This application was allowed and consequently Gurmit Singh was shown as defendant 6 in the suit. His case is that he is the adopted son of the plaintiff.

One of the issues framed in the suit is, "whether Gurmit Singh was the adopted son of Sukhbir Kaur widow of Pritam Singh, Plaintiff?" The onus to prove this issue is obviously on Sukhbir Kaur plaintiff. She appeared as her own witness and was cross-examined by defendants 1 to 5. Gurmit Singh defendant 6 made request before the court that he may also be permitted to cross-examine the plaintiff. A question thus arose at that time, whether he is also entitled to cross-examine the plaintiff and put certain documents to her. The request of defendant 6 was opposed by defendants 1 and 5 on the ground that Sukhbir Kaur has no interest adverse to that of defendant 6 and, therefore, no question in the nature of cross-examination could be allowed to be put to the plaintiff by defendant 6.

Trial court by order dated 17.4.1993 came to the conclusion that defendant 6 cannot be allowed to put question to the plaintiff in the nature of cross-examination. It, however, allowed defendant 6 to put the documents in his possession to the plaintiff for admission and denial to prove the adoption. It is this order which is under challenge in these two revision petitions, one at the instance of defendant 6 and the other at the instance of defendants 1 to 5.

Learned counsel for the petitioner in Civil Revision 1425 of 1993 submitted that in view of the fact that there is an issue in the suit to the effect whether defendant 6 is the adopted son of Sukhbir Kaur widow of Pritam Singh, he (defendant 6) is entitled to cross-examine the plaintiff and the trial court acted illegally in not permitting him to cross-examine the plaintiff. Learned counsel in support of his submission placed reliance on Nanak Chand Vs. Durga Pershad Brinja and Others, and Haridas Mundhra Vs. Indian Cable Co. Ltd., . Learned counsel for respondents 1 to 5 on the other hand submitted that interest of defendant 6, petitioner in Civil Revision 1425 of 1993 is the same as that of the plaintiff and once that is so, defendant 6 has rightly not been permitted to cross-examine the plaintiff. It was open to defendant 6 to have him transposed as plaintiff and to lead any evidence he wishes to lead but he cannot be permitted to cross-examine the plaintiff or her witnesses as he has no interest adverse to that of the plaintiff.

On a consideration of the matter and having regard to the facts of this case, I am of the opinion that the contention of learned counsel appearing on behalf of defendants 1 to 5, has merit. Interest of defendant 6 in the present case does not clash with that of the plaintiff. In fact defendant 6 is supporting the plaintiff and once that is so, he has no right to cross-examine the plaintiff or her witnesses. It is open to him to move an appropriate application for being transposed as plaintiff and adduce such evidence as he may like to do in support of the issues already framed. The judgments relied upon by the counsel for the petitioner are strictly not applicable to the facts of this case and are clearly distinguishable on facts. I thus find no illegality in the order passed by the trial court whereby the petitioner herein has not been permitted to cross-examine the plaintiff.

The other revision has been filed by defendants 1 to 5 challenging that pan of the order of the trial court whereby defendant 6 has been permitted to put certain documents relating to adoption, to the plaintiff for admission and denial. Learned counsel appearing on behalf of the defendants 1 to 5 could not show any illegality in that part of the order and in any case, if defendant 6 moves an application for being transposed as plaintiff, the entire controversy in that behalf will come to an end. In any case, it is for the plaintiff to prove the issues as framed in the suit after producing such evidence as may be considered necessary. Defendant 6 has, in a way, been permitted to put certain documents to the plaintiff for admission and denial only. The plaintiff would obviously produce those documents to prove the issues which had already been framed. The plaintiff has not at any point of time disputed that defendant 6 is not her adopted son. In that view of the matter, I see no ground to interfere with the order of the trial court. The revision petitions are consequently dismissed with no orders as to costs.

Learned counsel appearing on behalf of respondents 2 to 6 in Civil Revision 1425 of 1993 prayed that Civil Misc. 3857/C.II of 1994 may be ordered! to be dismissed as withdrawn. It is so ordered.

Since the proceedings in the suit had been stayed by this Court, the parties through their counsel are directed to appear in the trial court on 8.10.1998 for further proceedings in accordance with law.