Application Under Order 18 Rule 17 : recall of witness: cross examination of one defendant by other defendant

Summary of the Judgment: Akhilesh Singh vs. Krishan Bahadur Singh & Ors.

Background

This case pertains to a dispute involving the right of a co-defendant to cross-examine another defendant in a suit for specific performance of an agreement and declaration of certain sale deeds as null and void.

Case Details

• Case Title: Akhilesh Singh vs. Krishan Bahadur Singh & Ors.
• Court: High Court of Judicature at Jabalpur (M.P.)
• Judge: Hon’ble Justice Nandita Dubey
• Date of Judgment: January 8, 2020
• Writ Petition No.: 10710/2017

Legal Provisions Involved

1. Order XVIII Rule 17, Code of Civil Procedure, 1908 (CPC):

   • Allows the court to recall and examine any witness at any stage of the suit.
   • Relevant provision: “The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit.”

2. Sections 137 and 138 of the Indian Evidence Act, 1872:

   • Section 137: Defines examination-in-chief, cross-examination, and re-examination.
   • Section 138: Details the order of examinations and specifies that cross-examination can address relevant facts beyond the scope of examination-in-chief.

Precedents Cited

1. Saroj Bala vs. Dhanpati Devi (2007 AIR (Del) 105):

   • Emphasized the right of a party to cross-examine a witness presented by an adverse party, relying on earlier judgments.

2. Ennen Castings Pvt. Limited vs. M.M. Sunderaseh (2003 AIR (Kar) 293):

   • Highlighted that cross-examination is essential for extracting truth and exposing falsehood.
   • Stressed that denying a party the right to cross-examine a witness, especially when interests conflict, is unjust.

3. Shiv Pratap Singh Tomar vs. Seema Tomar and others (2018 (4) MPLJ 74):

   • Asserted that cross-examination should be allowed when allegations are made against a party to ensure fair adjudication.

4. Vadiraj Naggappa Vernekar (dead) Through LRs. vs. Sharadchandra Prabhakar Gogate ((2009) 4 SCC 410):

   • Held that recalling a witness to fill lacunae in evidence is not permissible.

Court’s Analysis and Conclusion

1. Right to Cross-Examine:

   • The court recognized the fundamental right of a party to cross-examine a witness whose testimony could adversely affect their interests.
   • Sections 137 and 138 of the Indian Evidence Act collectively grant this right, emphasizing fair adjudication.

2. Conflict of Interest:

   • A perusal of the deposition of D.W.-1 revealed clear allegations against defendant No.6, indicating a conflict of interest.
   • The court held that denying defendant No.6 the right to cross-examine D.W.-1 would be unjust and contrary to established legal principles.

3. Application of Precedents:

   • The court relied on various precedents affirming the right to cross-examine in cases of conflicting interests, thus allowing the petition.

Judgment

• The High Court quashed the impugned order dated 03.07.2017 and directed the trial court to permit defendant No.6/petitioner to cross-examine defendant No.1.
• The writ petition was allowed with no order as to costs.

This judgment underscores the importance of the right to cross-examine witnesses to ensure justice and the accurate determination of facts in legal proceedings.