Thursday, 28 February 2019

Procedure to be followed by court if there is collusion between plaintiff and some of defendants

The perusal of judgment in the case of Sunil Chhatrapal v. Y.S. Bagde, (supra) shows that there the learned Single Judge has held that defendants supporting the plaintiff in whole or in part have to lead their evidence first before the other defendants who do not support wholly or in part, the plaintiffs case. Those defendants who fully support the case of plaintiff have to first lead their evidence and cross-examine the witness. Thereafter those defendants who partly support the case of plaintiff have to undertake that exercise. The defendants who do not support the case of plaintiff in any manner i.e. contesting defendants, have to cross-examine at the end and have to tender their evidence at the end.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 1082 of 2008

Decided On: 14.11.2008

 Bhujang Nathuji Daf  Vs.  Ramkrishna Daulat Daf and Ors.

Hon'ble Judges/Coram:
B.P. Dharmadhikari, B.P., J.

Citation: 2009(1) MHLJ 683.


1. Heard Advocate Shri Kshirsagar for petitioner and Advocate Shri Patwardhan for respondents.

2. The plaintiff in Regular Civil Suit No. 777/1997 (re-registered as Regular Civil Suit No. 269/2001 before Civil Judge, Junior Division, Saoner) have filed this writ petition challenging the order dated 16.01.2008 passed by the 2nd Joint Civil Judge, Junior Division, Saoner on an application/objection of plaintiff. By the said objection filed on 04.08.2007 the petitioner contended that defendant Nos. 2 and 3 (present respondent Nos. 2 and 3) have no right to cross-examine defendant No. 1.

3. The petitioner claim that respondent No. 1/defendant No. 1 is their uncle and there was partition of ancestral property between their father and said defendant No. 1. After getting possession of his separate property, defendant No. 1 sold away the same and thereafter encroached upon the property of petitioner and also procured mutation entries in his favour. After completing this exercise, he sold away said property to defendant Nos. 2 and 3. After learning about all this, they filed Civil Suit No, 777/1997 for claiming possession of encroached property from defendant No. 1 and joined defendant Nos. 2 and 3 in that suit as they were in possession and they had no valid title to the encroached portion. The defendant No. 1 filed his written statement on 17.2.1998 denying all the allegations. He denied that there was any partition between father of the plaintiff and himself. He further denied any encroachment and he also denied that survey No. 142 (new No. 37), was given to father of the plaintiff or survey No. 145 (new No. 32) fell to his share. He contended that these survey numbers including Survey Nos. 7, 8, 9 and 10 were recorded in the name of Smt. Manjula wife of Daulat under Bhumiswami rights and were not in the name of father of the plaintiff or of grand father of plaintiff or his father. He further stated that the plaint allegations in relation to sale of land either by Vatsalabai or Ramesh in 1987 have nothing to do with the suit as filed and plaintiff had no right to challenge sale deeds executed in the year 1987 in favour of the defendant No. 2 or defendant No. 3. He also denied that he took possession of any land, much less the suit land in the year 1987. He also denied that the alleged mischief was detected by plaintiff in the year 1996. For the purpose of this controversy, the other pleadings in his written statement are not relevant, but then it is to be noted that ultimately he prayed for dismissal of the suit with compensatory cost of Rs. 5000/-.

4. Defendant Nos. 2 and 3 i.e. purchasers from him have filed identical written statement with same contentions through their Advocate.

5. After this, the Court started recording evidence and after finishing recording of evidence of present petitioner, recording of evidence of defendant No. 1 began. After his examination in chief was over, he was cross-examined by the present petitioner/plaintiff. Thereafter when defendant Nos. 2 and 3 wanted to cross-examine defendant No. 1, plaintiff filed objection contending that the defendants have no such right and in any case they ought to have cross-examined the defendant No. 1 before plaintiff conducted his cross-examination. Defendant Nos. 2 and 3 filed their say and pointed out that they have independent legal right to cross-examine defendant No. 1. By the impugned Order dated 16.01.2008 that objection (Exh. 141) has been rejected, and defendant Nos. 2 and 3 have been permitted to cross-examine defendant No. 1.

6. Shri Kshirsagar, learned Counsel for the petitioner has contended that Section 137 of Indian Evidence Act contemplates cross-examination only by adverse party and as defendants No. 2 and 3 are not adverse parties, insofar as defendant No. 1 is concerned, the Court below could not have permitted them to cross-examine defendant No. 1. He places reliance upon the judgment of this Court in the case of (Sunil Chhatrapal v. Y.S. Bagde) reported at MANU/MH/0638/2004 : 2004(4)MhLj620 , in support of his contentions. He argues that if such cross-examination is permitted, defendants No. 2 and 3 will be filling in lacunae and diluting the inconsistencies brought out in cross-examination of defendant No. 1 by the petitioner "plaintiff. In the alternative, Shri Kshirsagar, learned Counsel has contended that if defendants No. 2 & 3 wanted to cross-examine defendant No. 1, they ought to have undertaken such cross-examination before said defendant No. 1 was cross-examined by the petitioner. He states that such cross-examination, after cross-examination by the plaintiff is nothing but a deliberate effort to wash out the entire cross-examination conducted by the petitioner-plaintiff. If it is allowed, cause of the petitioner will be defeated and his suit may be dismissed.

7. Shri Patwardhan, learned Counsel for respondent No. 2, on the other hand, has contended that there is no collusion between defendant No. 1 on the one hand and defendants No. 2 and 3 on the other hand. He states that interest of defendant No. 1 and the other defendants are separate and independent. He points out that the petitioner/plaintiff have also sought relief against defendants No. 2 & 3, who are in possession of the suit property. He places reliance upon the judgment of Delhi High Court in the case of Mrs. Des Raj Chopra and Ors. v. Puran Mal and Ors. reported at MANU/DE/0249/1974 : AIR1975Delhi109 and also judgment of this Court in the case of (Vidarbha Irrigation Development Corporation v. 3rd Ad hoc Additional District Judge Nagpur reported at 2008(2) A.I.R. Bom. R. 314, in support of his contentions. He argues that the provisions of Section 137 of Evidence Act do not permit evidence to be used against any party until and unless such party is given opportunity to cross-examine the person who has tendered that evidence. According to him, as there was no plea of collusion between the defendants by the plaintiff, the Court below has followed correct procedure and has permitted plaintiff to cross-examine defendant No. 1 first and thereafter called upon defendants No. 2 & 3 to cross-examine defendant No. 1. He argues that in worst case, if after cross-examination by defendants No. 2 & 3, need for further cross-examination of defendant No. 1 is felt by the plaintiff, the trial Court is competent to consider prayer therefore. He, therefore, prays for dismissal of writ petition.

8. Shri Kshirsagar, learned Counsel, in reply states that defendants No. 2 & 3 could have been permitted to cross-examine defendant No. 1 only if defendants No. 2 & 3 had pleaded some collusion or connivance between plaintiff and defendant No. 1. In the absence of such plea by defendants No. 2 & 3, they cannot be permitted to cross-examine defendant No. 1.

9. The perusal of judgment in the case of Sunil Chhatrapal v. Y.S. Bagde, (supra) shows that there the learned Single Judge has held that defendants supporting the plaintiff in whole or in part have to lead their evidence first before the other defendants who do not support wholly or in part, the plaintiffs case. Those defendants who fully support the case of plaintiff have to first lead their evidence and cross-examine the witness. Thereafter those defendants who partly support the case of plaintiff have to undertake that exercise. The defendants who do not support the case of plaintiff in any manner i.e. contesting defendants, have to cross-examine at the end and have to tender their evidence at the end. This Court has in the said judgment relied upon the earlier judgment of this Court in the case of (Mandabai Ramkrishna Tumsare and Ors. v. Ramlal Hiramanji Hiwarkar and Ors. reported at MANU/MH/0617/1985 : 1986 Mh. L.J. 643, judgment of Orissa High Court in the case of Jwnpha Bewa and Ors. v. Sahadeb Rout and Ors. reported at MANU/OR/0060/1987 : AIR1987Ori209 and judgment of Gujarat High Court in the case of (Shah Hiralal Himatlal and ors. v. M.G. Pathak and Ors.) reported at A.I.R. 1964 Guj 26. In Mandabai Ramkrishna Tumsare and Ors. v. Ramlal Hiramanji Hiwarkar and Ors. (supra), the provisions of Order 18, Rule 2 of Civil Procedure Code are considered and it has been observed that a defendant who has admitted the facts alleged in the plaint has right to begin. The party which has right to begin has to produce evidence in support of issues burden to prove which is casted upon the party. It is after this stage that "other party" has to state its case and produce its evidence. It is to be noticed that provisions of Order 18, Rule 2 Sub-rule (2) of Civil Procedure Code uses this word "other party". 1986 judgment also shows that this Court has found that other party means other defendants contesting the plaintiffs claim.

Vidarbha Irrigation Development Corporation v. 3rd Ad hoc Additional District Judge, Nagpur (supra) is the judgment of this Court cited by Shri Patwardhan, learned Counsel in which Mrs. Des Raj Chopra and Ors. v. Puran Mal and Ors. (supra) is relied upon. There the question was whether in Land Acquisition Reference under Section 18 of Land Acquisition Act, the acquiring body, can cross-examine the Land Acquisition Officer. After considering the law on the point, this Court has concluded that acquiring body cannot be refused such right merely on the ground that its evidence is common i.e. identical as that of Land Acquisition Officer. The earlier judgment in the case of (Shrikant R. Shirdokar v. Smt. Xabirabi Shark Kadar and Ors. reported at 1997 AIHC 1363, has also been relied upon to show that as per provisions of Section 137 of Indian Evidence Act, right to examine the witness by party does not depend upon the pleadings of said party and it also turns on other factors which evolve normally during different stages of the trial.

In Mrs. Des Raj Chopra and Ors. v. Puran Mal and Ors. (supra), the Delhi High Court was required to consider the provisions of Section 137 of the Indian Evidence Act, in the back ground of the fact that the petitioner therein labelled as sub-tenant by the respondent-landlord was not permitted to cross-examine the person stated to be original tenant by the said respondent-landlord. The respondent-landlord alleged that original tenant subsequently sub-let the store to the petitioner before the High Court and the petitioner was running that business. As subletting was without consent in writing of landlord, the store as also other persons were liable to be evicted. The petitioner raised defence that he was direct tenant of respondent-landlord. It is in this background that the controversy is considered and it was found that Additional Rent Controller refused permission to the petitioner to cross-examine the witness as defence of the petitioner as well as original defendant was found to be identical by him. Delhi High Court found out that the common stand by the defendants did not mean that interest were totally common in the sense that whatever the decision on eviction application, it would affect the petitioner as well as tenant identically. It also noticed the earlier precedents and found that no evidence by one party is admissible against any other party unless such other party had an opportunity of testing its truthfulness by cross-examination. In para 15, the observations on same lines in earlier judgment are also quoted with approval. Those observations state that "in our judgment, no evidence given by one party affecting another party in the same litigation can be made admissible against that party unless there is right to cross-examination". The present controversy needs to be considered in this background. The facts disclose that suit is for removal of encroachment pointing out previous partition. The alleged encroached portion is alleged to be purchased from defendant No. 1 by defendants No. 2 and 3 and as they are in possession, they have been joined as party defendants. Though they have filed written statement, which is identical with written statement of defendant No. 1, it is apparent that they have got separate and independent legal right to justify sale deeds executed in their favour by defendant No. 1. It is to be noted that plaintiff has not contended that there is any collusion between these purchasers and defendant No. 1. Had there been such an assertion, the trial Court would have definitely called upon defendants No. 2 & 3-purchasers to cross-examine defendant No. 1 first. As there was no such allegation, the trial Court has proceeded in normal manner and has permitted the petitioner-plaintiff to cross-examine defendant No. 1 first. At that stage also defendant No. 1 did not raise any objection and did not point out to trial Court that purchaser should be called upon to cross-examine defendant No. 1 first. After completion of cross-examination of defendant No. 1 by plaintiff, when the suit was fixed for cross-examination of defendant No. 1 by purchasers, the petitioner-plaintiff filed objection at Exh. 141.1, therefore, find that trial Court cannot be blamed for permitting the plaintiff to cross-examine defendant No. 1 first and thereafter calling upon purchasers to cross-examine defendants No. 2 & 3 in the matter.

10. Whatever defendant No. 1 has deposed in his chief and in his cross-examination, is the evidence which is available before the trial Court. That oral evidence is bound to be used by the petitioner-plaintiff against the purchasers also. It is settled law that such oral evidence cannot be used against the purchasers until and unless the purchasers get opportunity to cross-examine such person, who has given oral evidence. Thus, evidence tendered by defendant No. 1 cannot be used against defendants No. 2 and 3, unless they are given an opportunity to cross-examine him. Defendants No. 2 & 3 may put appropriate questions in cross-examination to defendant No. 1 and if the petitioner-plaintiff find the questions to be improper or inadmissible, they can raise objection thereto before the trial Court and trial Court is duty bound to decide said objection in accordance with Indian Evidence Act. Merely because written statement filed by defendants Nos. 2 and 3 is identical with written statement of defendant No. 1, it can not be forgotten that it is separate and they have engaged their own advocate. Their right to bring on record material through cross-examination of defendant No. 1 and to protect their own interest, cannot be taken away. Defendants No. 2 & 3 have purchased the property for valuable consideration and are interested in protecting their title and possession. It is apparent that defendant. No. 1 as also purchasers want the suit of plaintiff to fail but then that does not mean that the purchasers are in any way colluding with defendant No. 1 for that purpose. At the most, it can only be said that their interests in the matter are overlapping to certain extent. The trial Court has, therefore, rightly given opportunity to purchasers i.e. respondents No. 2 & 3 to protect their interest by cross-examination of petitioner-plaintiff.

11. As the interest of defendants No. 2 and 3 was common to certain extent with defendant No. 1, the trial Court should have permitted them to cross-examine defendant No. 1 first and should have called upon the petitioner-plaintiff to cross-examine defendant No. 1 at the end. The same course of action will be required to be followed if defendants No. 2 and 3 tender their evidence in the matter. Defendant No. 1 will be required to cross-examine them first and petitioner-plaintiff will be required to cross-examine the purchasers/their witness at the end. In present matter, as the petitioner-plaintiff has already cross-examined defendant No. 1, there is no option but to permit them to further cross-examine defendant No. 1, if they find it necessary after defendants No. 2 & 3 complete their cross-examination of defendant No. 1. With this liberty available to petitioner, I find that there is no merit in writ petition. Writ petition is accordingly dismissed. However, there shall be no order as to costs.


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