Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 49-2020 in Suit no.8253-1996
H.C.Suit No. 4579 of 1996
1 Date :17.02.2020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 49 OF 2020
IN
SUIT NO. 8253 OF 1996
H.C.SUIT NO. 4579 OF 1996
(CNR MHCC01 0001362020 )
Jagdish Umeshchandra Joshi .. Plaintiff
Versus
Dr. Niranjan Umeshchandra Joshi & Ors. .. Defendants
Appearances :
Adv.Counsel Dakshesh Vyas i/b Lex Firms for defendant no.1.
Adv.Balkrishna Shetty a/w Roshan Dsa for defendant no.2.
Adv.Yashesh V.Pajwani i/b Danial Asif for defendant no.4.
Adv.Shakeeb Shaikh Counsel a/w Adv.Mangesh Nalawade for
defendant no.7.
Adv.Ashutosh Shukla for defendant no.10.
Coram : His Honour Judge
Shri. A.H.Laddhad
Judge
CR No. : 07
Date : 17.02.2020
ORDER
1. I have heard both the sides. Perused Notice of Motion, reply
as well as Written Statement filed by the defendant no. 10. Present
suit have been filed by the plaintiff for partition of the properties.
The other siblings of the plaintiff have also filed two separate suits
for partition of other properties. The evidence in all three suits are
laid commonly.
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2. It is the case of the defendant no. 10 that he was in need of
residential accommodation. The defendant no. 2 approached him
and represented that the suit property is free from all
encumbrances. The defendant no. 2 further claimed that the suit
property is his self acquired property. The defendant no. 10 thus
can purchase the suit property and he is bonafide purchaser of the
same and he has executed Registered Deed on 05.11.2014.
3. It is contended by the advocate for the defendant no. 10 that
the suit is for partition and therefore all defendants are plaintiff
and plaintiff are defendants. Therefore, defendant no. 10 is entitle
to crossexamine the defendant no. 1 as he has to discharge his
burden for proving that he is the bonafide purchaser. The Ld.
Advocate for the defendant further argued that if he has been
granted permission to crossexamine PW.1, he will restrict his
crossexamination only to the extent of proving issue of bonafide
purchaser. Ld. Advocate for defendant no. 10 in support of his
submission has relied on the following judgment.
a) Bhujang Nathuji Deorao V/s. Ramkrishna D. Vithoba
reported in 2008 Dg Law (Bom) 420.
b) Mrs. Deshraj Chopra & Ors. V/s. Puran Mal & Ors.
reported in Air 1975 Delhi 109.
c) Moh. Ziaulla V/s. Mrs. Sugra Begum & Ors. reported in
1997 AIHC 2628 (Karnataka).
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d) M/s. Ennen Castings (P) Ltd. V/s. M.M. Sudarshan & Ors.
reported in AIR 2003 Karanataka 203.
e) CIT V/s. Eastern Commercial Enterprises reported in 1993
Dg Law (Cal) 90.
f) Smt. Saroj Bala V/s. Smt. Dhanpati Devi reported in AIR
2007 Delhi 105.
g) Shivpratap Singh Tomar V/s. Seema Tomar & Ors.
reported in MANU/MP/0539/2018.
4. Per contra both the defendant no. 1 and 7 vehemently
opposed the Notice of Motion on the ground that the defendant
no. 10 is not adversary to the interest of defendant no. 1. The
defendant no. 1 has deposed only with respect to three properties,
i.e. building by Name “Umesh Dham”, Ramtirth Yogashram and
land at Nandgaon, Manor. The defendant no. 1 has specifically
deposed that he has nothing to do with the other properties and he
has no knowledge about the other properties.
5. It is further argued that the defendant no. 10 came to be
added on 04.10.2018. This Court specifically on 12.04.2019
passed the specific order whereby, directing all the defendants by
their sequence to crossexamine and after that the plaintiff to
crossexamine. Not only that advocate of defendant no. 10 has
admitted in Notice of Motion itself that he was present on
19.11.2019 in the venue when the crossexamination of defendant
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no. 1 was going on. Inspite of that the defendant no. 10 do not
showed to crossexamine the defendant no. 1 prior to the
completion of the crossexamination of the plaintiff. If the
defendant no. 1 is now allowed to crossexamine, he will fill up the
lacuna and washed out the evidence. It is vehemently argued that,
in view of Section 137 of Evidence Act, the defendant no. 10 is not
adversary to the interest of the defendant no. 1 and he has no right
to crossexamine. The party who is adversary has right to cross
examine, though they are codefendant. In support of their
submissions defendant no. 1 as well as defendant no. 7 has relied
on the following judgments.
a) Smt. Annapurna Devi V/s. Administrator General, U.P. &
Ors. reported in 2009 SCC Online All 619.
b) Des Raj Chopra & Ors. V/s. Shri Pooran Mal & Ors.
reported in 1974 SCC Online Del 158.
c) Sri Mohamed Ziaulla V/s. Mrs. Sorgra Begum & Anr.
reported in ILR 1997 Kar 1378
d) Piroja Ghadiali V/s. Pestonji Ghadiali reported in
MANU/MH/0090/1942.
6. I have perused the aforesaid judgments cited by the both the
sides. The right of crossexamination is governed under Section
137 and 138 of Evidence Act.
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7. On perusal of the aforesaid provisions, it appears that the
party who is adversary, have right to crossexamine the witness. In
the entire Evidence Act, there is no separate provision for cross
examination by the defendant to codefendant. In case of Piroja
Ghadiali V/s. Pestonji Ghadiali decided by Hon’ble Bombay
High Court, the defendant and codefendant have both denied
adultery and their written statement put by them is also same and
their defence were also same. The defendant no. 2 in the said case
sought permission to crossexamine the defendant no. 1. In the
said judgment the Hon’ble Bombay High Court thus, observed as
under :
“There is nothing in the evidence given by the defendant
which can in any way be said to be adverse to the co
defendant. The general Rule is that a defendant may cross
examine his codefendant who gives evidence, or any of his co
defendant’s witnesses, if his codefendant’s interest is hostile to
his own. Hasbury, 2nd edn., Vol. XIII, P.75, and also Vol. X,
pp. 736737. It is only where the evidence of a codefendant
or a corespondent is adverse to the defendant or the
respondent that the defendant or respondent can claim the
right to crossexamine. There would be very obvious
disadvantages if in this case, where the contentions of the
defendant and the codefendant are identical, the co
defendant were allowed to crossexamine the defendant, who
for all practical purposes may be regarded as the co
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defendant’s witness. The disadvantage becomes all the more
serious because the request to crossexamine is made after the
real adverse party, the plaintiff has finished his cross
examination. The codefendant, if allowed to crossexamine
the defendant, will be able to practically nullify the effect of
the plaintiff’s crossexamination and to get in additional
evidence to fill up any gaps which may have been disclosed by
the plaintiff’s crossexamination, and to do so by putting
leading questions which would not have been permissible in
examinationinchief.
8. In case of Smt. Annapurna Devi V/s. Administrator
General, U.P. & Ors. reported in 2009 SCC Online All 619, the
Hon’ble Allahabad High Court while interpreting the provisions of
Section 137 and 138 of Evidence Act, and interpreting who would
be adverse party has held that “where the interest of the co
defendant is not shown to be adverse to the defendant who wish to
crossexamine him.” The defendant has only right to cross
examine. The observation of Para No. 8 is reproduced as under :
“Difficulty, however, arises where the interest of a co
defendents not shown to be adverse to a defendant who wishes
to crossexamine him. In such a situation, the defendant is
not entitled to crossexamine the codefendant. This is what
follows from the passage referred to above which has been
extracted from the book written by Sarkar. Chief Justice M.
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Munir in his Law of Evidence (Volume II, 14 th Edition at Page
2222) has also made the following observations :
“The right to crossexamine belongs to an “adverse party” and
a person who is not “adverse party” should not be allowed to
intervene in the proceedings and to take part in cross
examination of witnesses. Where the defences of a co
respondent or a codefendant and the respondent or the
defendant are identical neither is entitled to crossexamine the
other.”
9. In the aforesaid case the Hon’ble High Court was of the view
that the Appellant has not demonstrated as to how the defendant
no. 4 in his crossexamination has taken a stand of defendant no. 1
and 2. Therefore, Hon’ble High Court found no good reason to
interfere with the operative part of the order of Ld. trial Court,
rejecting plea of the defendant no. 1 and 2 to crossexamine the
defendant no. 4.
10. In case of Sri Mohamed Ziaulla V/s. Mrs. Sorgra Begum &
Anr. reported in ILR 1997 Kar 1378, Hon’ble Karnataka High
Court has held that Section 137 and 138 of Evidence Act did not
specifically referred to crossexamination of codefendant’s Witness
but Court has to adopt the golden rule that “no evidence shall be
received against any codefendant or coaccused who has no
opportunity of testing it by crossexamination, as it would be unjust
and unsafe not to allow coaccused or codefendant to crossexamine
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witnesses called by one whose case was adverse to his, or who has
given evidence against him. If there is not clash of interest or if
nothing has been said against the other party, there can not be any
right of crossexamination.”
11. The Hon’ble High Court interpreted the word “adversary
party” as occurring in Section 137 of the Evidence Act and in para
6, the observation is as under :
“Dictionary of Law by Curzon 4th Edition defines “adversary” as
witness who disappoints the party calling them i.e. they are
unfavourable and hostile witnesses. The new Webster Dictionery
of English Language has explained the word “adverse” as going
to contrary direction, counter action, opposing, calamitous,
unprosperous etc.”
12. On perusal of the aforesaid judgment gist which has been
laid down is appears that no evidence given by one party affecting
the another party in the same litigation can be made admissible
against other party unless there a right to crossexamination. At
the same time it is also held that in order to call party adversary,
the party who wish to crossexamine codefendant has to show
that he is adversary or his interest is in conflict or hostile with the
person giving evidence. And if, the interest is not conflicting, then,
the party seeking crossexamination have no right of cross
examination.
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13. The defendant no.10 relied on judgment in case of Bhujang
Nathuji Deorao V/s. Ramkrishna D. Vithoba (Supra) reported
in 2008 Dg Law (Bom) 420. In the aforesaid case, suit was filed
by the plaintiff for removal of encroachment pointing out previous
partition. The encroached portion alleged to be purchased from
defendant no. 1 by defendant no. 2 and 3 as the were in
possession, therefore, they were made as party defendant. The
defendant no. 2 and 3 filed their Written Statement identical with
the Written Statement of the defendant no. 1.
14. In the aforesaid case the Trial Court has proceeded in the
normal manner and has permitted the plaintiff to crossexamine to
defendant no. 1 first. The defendant no. 1 did not raised any
objection and did not point out the trial Court that the Purchaser
should be called upon to crossexamine the defendant no. 1 first.
After the completion of the crossexamination of the defendant no.
1 by the plaintiff, when the suit was fixed for crossexamination of
the defendant no. 1 by the purchaser, the plaintiff objected by
filing the objection. Which was allowed by the Ld. Trial Court.
15. In the aforesaid judgment in Para No. 10, the Hon’ble High
Court has observed as under :
“Whatever defendant no. 1 has deposed in his Chief and in his
crossexamination is the evidence which is available before
Trial Court. That oral evidence is bound to be used by the
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petitioner plaintiff against the purchasers also. It is settled law
that such oral evience can not 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
defendant no. 2 and 3 who 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.”
16. The fact and circumstances of the aforesaid case can be
differentiate. In the present cases, the defendant no. 10 was
added as defendant. During oral evidence before Commissioner,
the defendant no. 10 on 19.11.2019 had appeared. Not only that
before conclusion of crossexamination by the plaintiff, there was
specific order passed by my Predecessor on 12.04.2019 by which
sequence of crossexamination has been decided. Inspite of that
the defendant no. 10 keep mum for the reasons based known him.
17. Moreover, on perusal of the Written Statement of defendant
no. 10, it appears that he has claimed only to be a bonafide
purchaser of the one of the suit property for which there is no
whisper made by the defendant no. 1 in his evidence. The
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defendant no. 1 have specifically deposed only with respect to
three properties and not with respect to the properties which was
sold by the defendant no. 2 to the defendant no. 10. Moreover, in
the present case, the defendant no. 10 has applied for cross
examination of defendant no. 1 after the plaintiff have completed
its crossexamination. Therefore, in view of the judgment of
Bombay High Court in case of Piroja Ghadiali V/s. Pestonji
Ghadiali reported in MANU / MH /0090/1942, allowing such
crossexamination would certainly fill up lacuna.
18. The defendant no. 10 further relied on the judgment of
Hon’ble Delhi High Court in case of Mrs. Deshraj Chopra & Ors.
V/s. Puran Mal & Ors. reported in Air 1975 Delhi 109. In that
the additional rent controller has refused to grant to the petitioner
to crossexamine witness on the ground that the defence of the
petitioner as well as of the stores is identical and said right of
crossexamination can not be exercised by the petitioners as their
rights can not be said to be in any way adverse to that of the
respondent no. 3. The Hon’ble High Court in its para no. 8 has
held that “It may be noted that undoubtedly the petitioners as well
as respondents No. 2 have taken the stand that respondent no. 3 is
the direct tenant of the landlord and to that extent this defence and
plea is common to both of them. But it does not mean that their
interests are totally common in the sense that whatever the decision
on the eviction application it will affect the petitioners as well as the
stores in identically the same manner.”
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19. In case of M/s. Ennen Castings (P) Ltd., V/s. M. M.
Sundaresh & Ors. reported in AIR 2003 Karnataka 293. It has
been held by the Hon’ble Karnataka High Court that “No evidence
should be received against one who had no opportunity of testing it
by crossexamination, as it would be unjust and unsafe not to allow a
coaccused or codefendant to crossexamine a witness called by one
whose case was adverse to him, or who has given evidence against. If
there is no conflict of interest, such an opportunity need not be given.
Therefore, the condition precedent for giving opportunity to a
defendant / respondent to crossexamine a corespondent or a
defendant is either from the pleadings of the parties or in the
evidence, there should exist conflict of the interest between them.
Once, it is demonstrated that their interest is not common and there
is a conflict of interest and evidence has been adduced, affecting the
interest of the codefendant / corespondent, then before the Court
could act on that evidence, the person against whom the evidence is
given should have opportunity to crossexamine the said witness, so
that ultimately truth emerges on the basis of which th Court can
act.”
20. The similar principle has been laid down in case of
Commissioner of Income Ta V/s. Eastern Commercial
Enterprises reported in 1993 Dg Law (Cal) 90, Smt. Saroj Bala
V/s. Smt. Dhanpati Devi & Ors. reported in AIR 2007 Delhi 105
and Shivpratap Singh Tomar V/s. Seema Tomar & Ors.
reported in MANU/MP/0539/2018.
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21. Thus, in view of the above discussion I find that defendant
no. 10 is not adversary to the defendant no. 1 and hence he has no
right to crossexamination. Moreover, the plaintiff did not
challenge the Sale Deed executed by the defendant no. 2 in favour
of defendant no. 10. It is only the defendant no. 7 who by moving
Chamber Summons have added defendant no. 10 as party to the
present proceeding. Thus, in view of the aforesaid discussion, in
my view, there is no substance in the Notice of Motion and same
deserves to be dismissed with cost. Thus, I proceed to pass the
following order :
ORDER
1. Notice of Motion No. 49 of 2020 is hereby dismissed with
cost.
2. Notice of Motion No. 49 of 2020 is disposed off
accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court,
Dated : 17.02.2020 Greater Bombay.
Dictated on : 17.02.2020
Typed on : 18.02.2020
Draft Submitted on : 18.02.2020
Checked on : 24.02.2020
Signed on : 24.02.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
24/02/2020 at 3.45 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
17/02/2020
JUDGMENT/ORDER signed by P.O.
on
24/02/2020
JUDGMENT/ORDER uploaded on 24/02/2020
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