DOES A DEFENDANT CAN CROSS EXAMINE CO-DEFENDANTS?

This is an interesting issue though rarely arises in the day to day

trial of cases.Nevertheless, such issue may arise and therefore
needs to be addressed properly.The present paper would be
humble attempt to understand the concept with clarity.

Bombay High Court

Vinod S/o Khimji Lodaya v Muljibhai S/o Maujibhai Patel on 25
June, 2013
Bench: S. S. Shinde
Citation; 2013 (6) ALL M R 732

1. Rule. Rule made returnable forthwith. With the consent of the

rt learned counsel for the respective parties, taken up for final
hearing.

2. The present Civil Revision Application takes exception to the C

Order dated 03/10/2011 passed by the Presiding Officer, Wakf
Tribunal, Aurangabad, thereby rejecting the application below
Exh. 80 filed by the applicant.

3. It is the case of the applicant that the land bearing City Survey
H Nos. 12889, 12889/1 and 12889/2 i.e. old Survey No. 38
situated out side Jafar Gate, Mondha Road, Aurangabad is the
subject matter of the y proceedings before the Maharashtra State
Wakf Tribunal, Aurangabad in ba Wakf Case No. 11 of 2005 and
the Wakf Case No. 22 of 2005 pending before the Presiding
Officer, Wakf Tribunal, Aurangabad. The Wakf Case om No. 22 of
2005 is already decided, however Wakf Case No. 11 of 2005 is yet
pending before the Maharashtra State Wakf Tribunal,
Aurangabad. B

4. It is the further case of the applicant that the respondent No.

17 has initiated proceedings allegedly U/s 54 of the Wakf Act,
1995 by issuing notice. After the proceedings U/s 54 of the Wakf
Act, the applicant has filed Wakf Case No. 22 of 2005 before the
Wakf Tribunal, Aurangabad praying for the relief of declaration
and injunction in respect of the said rt property. The respondent
No. 17 has resisted the Suit filed by the applicant by filing its
Written Statement. After framing of issues, the applicant ou
stepped in the witness box. The cross examination of the
applicant is completed on 15/02/2011 in Wakf Suit No. 22 of
2005. The respondent C No. 17 has not adduced any evidence. It
is further case of the applicant that the application for
amendment in Wakf Suit No. 22 of 2005 filed by the h applicant
was rejected. Being aggrieved by it, C.R.A. No. 123 of 2009 was ig
filed before this Court, which came to be allowed by Order dated
H 22/07/2010. The proceedings of Wakf Suit No. 22 of 2005 were
expedited by this Court. The learned counsel appearing for the
applicant informed that the proceedings in Wakf Suit No. 22 of
2005 are decided. y ba

5. It is further case of the applicant that in view of the action of

om respondent No. 17 initiating the proceedings U/s 54 of the
Wakf Act, 1995, the respondent Nos. 1 to 16 have filed Wakf Case
No. 11 of 2005 before the Wakf Tribunal, Aurangabad. It is the
case of the applicant that this Court B in C.R.A. No. 32 of 2011
directed the Presiding Officer, Wakf Tribunal, Aurangabad to
expedite the hearing of Wakf Case No. 11 of 2005. It is the case of
the applicant that the respondent No. 17 has adduced evidence,
the affidavit of examination-in-chief was filed by one Aziz Ahmed
S/o SirajAhmed on 13/09/2011. The witness of respondent No.
17 is cross examined by the Advocate of respondent Nos. 1 to 16.
The application rt below Exh. 78 was filed on behalf of the
applicant for adjournment as the applicant was not present on
the date of cross examination of respondent ou No. 17 and the
applicant wants to cross examine respondent No. 17. The Wakf
Tribunal, Aurangabad in stead of passing Order on Exh. 78, was
C pleased to pass Order below Exh. 74, wherein after the cross
examination of witness of respondent No. 17, a note is written,
saying that, the applicant h
has filed application for cross examination of said witness. ig H

6. It is observed that both Suits can be disposed off togetherThe

applicant herein filed application below Exh. 80, thereby praying
for reviewing the order and further prayed to permit the applicant
to cross y ba
examine D.W. No. 1. The respondent No. 17 has resisted the
application by filing Say and the Tribunal has rejected the
application below Exh. 80 om filed by the applicant in the Civil
Revision Application. Hence this Civil Revision Application. B

7. The learned counsel appearing for the applicant submits that,

law is laid down in the case of Sohanlal & Ors. V/s Gulabchand
reported in AIR 1966 Rajastan - 229 that co-defendant can cross
examine the deposing defendant. Therefore, the applicant has
every right to cross examine the witness of respondent No. 17. It
is further submitted that the respondent No. 17 has not stepped
in the witness box in the Suit instituted rt
by the applicant herein. This shows obvious intention to avoid
cross examination by the applicant. It is further submitted that
since the ou respondent No. 1 herein i.e. the respondent No. 17 is
the Officer of the Wakf Board, no prejudice will be caused to the
respondent No. 17 if C opportunity of cross examination to him is
granted in favour of the applicant.

8. It is further submitted by the learned counsel appearing for the

H applicant that, in view of the Judgment of this Court in case of
Vidarbha Irrigation Development Corporation V/s 3rd Ad-hoc
Additional District y Judge, Nagpur & Ors reported in 2007 (O)
BCI - 490, and the Judgment ba in case of Smt. Taruni Thakur &
amp : others V/s Kamendra Singh & amp : others delivered in
Writ Petition 227 No 3052 of 2010 decided by om Chattisgarh
High Court and also in case of Sri Mohamed Ziaulla V/s Mrs.
Sorgra Begum and Anr. reported in ILR 1997 KAR - 1378, the
defendant can cross examine the co-defendant. B

9. On the other hand, the learned counsel for respondent No. 1

submits that in view of the provisions of Section 137 of the Indian
Evidence Act, only adversary can cross examine the plaintiff. The
said provision does not permit the defendant to cross examine the
co-defendant. The learned counsel invited my attention to the
Judgment of the Gujarat High Court in the case of Hussens
Hasanali Pulavwala V/s Sobbirbhai Hasanali Pulavwala & Ors.
reported in AIR 1982 Gujarat - 190 and submitted that the right
of cross examination can be exercised only by adverse party. C

10. It is further submitted by the learned counsel appearing for

respondent No. 1 that the Suit filed by the applicant is already
dismissed.
Therefore, in case the applicant i.e. original defendant No. 2 if
allowed to cross examine the defendant No. 1, in that case, it will
give fresh cause of action to the respondent No. 2 though his Suit
is dismissed by the Wakf Tribunal.

11. The learned counsel appearing for respondent No. 18 invited

my attention to the provisions of Order XVIII Rule 17 of the Code
of Civil om Procedure [ For short, ' C.P. C. ' ] and submits that
there is no provision under C.P.C. under which the party can
apply for recalling the witness for examination. In his submission,
it is only in appropriate cases where Court B
deem it appropriate, the witness can be recalled for examination
or cross examination as the case may be. However, the party has
no right to recall the witness for examination or cross
examination. The learned counsel invited my attention to Section
137 of the Indian Evidence Act and submitted that, it is
contemplated by the said provision that, only adverse party has
right to cross examine. It is submitted that in the present case,
the defendant No. 2 wish to cross examine the defendant No. 1
which is not permissible. There is no provision traceable in the
Indian Evidence Act, which would enable the defendant No. 2 to
cross examine defendant No. 1. Therefore, the learned counsel
submits that the Civil Revision Application is devoid of any merits
and deserves to be rejected.

12. I have heard the learned counsel for the respective parties
and with their able assistance perused the grounds taken in the
Civil Revision Application, annexures thereto, the impugned
Order passed by the Wakf Tribunal and also the Judgments of
various High Courts and this Court cited across the bar.

13. It is not necessary to go into the details of the case. Suffice it

om to say that the prayer of the original defendant No. 2 i.e. the
applicant herein, is to cross examine the respondent No. 1 i.e.
defendant No. 17 herein, has been rejected by the Presiding
Officer, Wakf Tribunal on the B ground that, there is no provision
for allowing the prayer of the applicant for cross examination of
the defendant No. 1.

14. Upon careful perusal of the impugned order, it appears that

the Tribunal has not noticed the Judgments of various High
Courts except the Judgment of the Punjab and Haryana High
Court and rejected the prayer of the applicant i.e. original
defendant No. 2, for cross examination of defendant No. 1. The
Karnataka High Court in case of Sri Mohamed Ziaulla ou [ supra ]
while interpreting the provisions of Section 137 and 138 of the
Indian Evidence Act, in para Nos. 7 to 9 held thus, : C

" Section 137 specifically explains that the examination of a

witness by the adverse party is cross h
examination. Section 138 of the Evidence Act refers to ig cross
examination if the adverse party so desires after the witness is
first examined in chief. These two H sections of the Evidence Act
make it abundantly clear that a party has a right of cross
examining his adversary or his witness.
Section 137 and 138 of the Evidence Act do not ba specifically
refer to cross examination of co-defendant's witnesses. But, the
courts have to adopt a golden rule that no evidence shall be
received against any co- om
defendant or co-accused who had no opportunity of testing it by
cross examination; as it would be unjust and unsafe not to allow
a co-accused or co-defendant B
to cross examine witness called by one whose case was adverse to
his, or who has given evidence against him. If there is no dash of
interest or if nothing has been said against the other party, there
can not be any right of cross examination. A short but, interesting
discussion is found in Sarkar's Evidence at Page 1342 13th
Edition. Similar opinion is found in Principles and Digest of the
Law of Evidence by M.Monir, Third Edition Page 1114.
This very question was debated in the English Courts as far back
as in 1920 vide a decision in LORD V. COLVIN 1855, 24 LJ Ch
517, 3 Drew - C 222. The learned Judge in the said case after
consulting all the equity judges held that before an examiner in
Chancery, one defendant might cross examine another
defendant's witness. The same right exists between respondent
and co-respondent in divorce cases provided either is hostile to
the other, for if friendly, eg. where both deny the adultery, each
can only be examined as the other's witness and not cross-
examined. A defendant may cross-examine his co- defendant who
gives evidence or any of his co- ba defendant's witnesses if his co-
defendant's interest is hostile to his own. Therefore, the
procedure that has om been followed by the Courts in England
and in India has not left this question in doubt. Where it is shown
that the interest between the defendants' inter-se conflict each
other, the other defendant has necessarily to be treated as an
adversary and he is certainly entitled to cross examine the other
defendant or his witnesses ".

15. This Court in the case of Vidarbha Irrigation Development

Corporation [ supra ] has taken a view that the
examination/cross examination by the co-defendant is
permissible since the object of leading rt evidence and cross
examination is to find out the truth. The cross examination assist
the Court in arriving at the just and proper conclusion. ou

16. In another Judgment of the Chattisgarh High Court in the

case C of Smt. Taruni Thakur & amp; others [ supra ], the High
Court has taken a view that the cross examination by the co-
defendant is permissible.

17. In the facts of the present case, it is the case of the applicant
H that by way of registered Lease Deed executed in his favour, he
is occupying the suit property and the original plaintiffs are his
tenants. Therefore, in case, if he is not allowed to cross examine
the original defendant No. 1, it will cause prejudice to his interest.
Hence, in stead of going into the details of the facts of the case,
suffice it to say that the cross examination of the co- om
defendant by the defendant is permissible in view of the
Judgments of the various High Courts cited supra. B

18. The contention of the learned counsel appearing for

respondent No. 18 that the provisions of Order XVIII Rule 17 of
the C.P.C. only empowers the Court to call the witness for
examination and the party has no right to ask for recalling the
witness, is required to be appreciated in the light of the Judgment
of the Supreme Court in the case of K.K.Velusamy V/s
V.N.Palanisamy reported in (2011) 11 SCC - 275.
The Supreme Court has taken a view that, in appropriate cases,
the Court can invoke the inherent powers to recall the witness for
examination. The ou inherent powers of the Court are not affected
by the provisions of Order XVIII Rule 17 of the C.P.C. Since the
provisions of Sections 137 and 138 of C
the Indian Evidence Act, are interpreted by the Karnataka High
Court, Chattisgarh High Court and by this Court also and view is
taken that in h appropriate cases, where the defendant
demonstrates that the co- ig defendant's evidence would adversely
affect his interest, cross examination of such co-defendant is
permissible.

19. In light of the above discussion, the impugned order deserves

ba to be quashed and set aside. Accordingly the same is quashed
and set aside. The prayer of the applicant to cross examine the
defendant No. 1 is allowed. The Wakf Tribunal, Aurangabad to fix
the date for cross examination of the defendant No. 1 by the
applicant herein i.e. original defendant No. 2. On the said date,
the applicant to cross examine the B original defendant No. 1 and
should not ask for further time. After the applicant is allowed to
cross examine the defendant No. 1, the Wakf Tribunal should
proceed with the hearing of the Suit.

20. Rule made absolute in above terms. The Civil Revision

Application is allowed to above extent and stands disposed of.
[ S.S.SHINDE, J. ]
KNP/C.R.A. 249.2011 - [J]