Shri Sonu Vithoba and Another vs Shri Bisso Oddo Velip and Others

S.C. Dharmadhikari, J.—Heard learned Counsel appearing for the parties. The petition challenges an interlocutory order where under the learned Trial Judge has during the course of trial observed that the objection raised by Advocate appearing for defendants no. 3 to 5 is valid and that the present petitioners/plaintiffs cannot examine the deponent of the affidavit Bisso Oddo Velip. The said Velip is defendant no. 1 and he deposed in the suit. After his deposition in chief was complete, the petitioners'' Advocate rose to cross-examine the said witness, at which stage an objection was raised by the Advocate appearing for defendants no. 3 to 5 that the deposition of the defendant no. 1 is not adverse to the suit claim. In other words, the defendants no. 1 and 2 did not dispute the claim set up by the plaintiffs and in that sense the said witness cannot be said to be deposing adverse to their interest. In such circumstances, there is no question of any opportunity being given or the plaintiffs getting any right of cross-examination of this witness. That objection having been upheld, the present petition by the original plaintiffs.

After the matter was heard for sometime and the impugned order was perused by me, so also a decision of the learned Single Judge of this Court, I am of the view that the witness is yet to be discharged. Presently, the objection raised by defendants no. 3 to 5 has been upheld and the right of the present petitioners to cross-examine the witness (defendant no. 1) has been denied. The learned Judge has assigned reasons for not permitting the plaintiffs to cross-examine the witnesses of defendants no. 1 and 2. The witness is yet to be discharged. The cross-examination by defendants no. 3 to 5 is underway. In such circumstances, after the cross-examination of the witness by defendants no. 3 to 5 is completed, if the petitioners/plaintiffs desire to cross-examine the said witness on some points or seek some clarifications on the statements recorded, then, liberty is granted to the petitioners to apply to the Trial Court and if such application is made and the statements or contradictions are pointed out, the Trial Judge to afford the opportunity to the plaintiffs to cross-examine the witness, who is presently in the box and only then shall the Trial Court discharge him. With these clarifications being issued, I see no reason to interfere with the interlocutory order as the same together with the present clarifications sufficiently protects the petitioners'' interest. However, this direction of the Trial Court is restricted to the present witness and if any further witnesses are examined by defendants no. 1 and 2, then, needless to state that the Trial Court to abide by the provisions, more particularly, those set out in Section 134 to 138 of the evidence Act. Writ Petition is disposed of.