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Hussens Hasanall Pulavwala Vs. Sabbirbhai Hasanali Pulavwala and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 1569 of 1980
Judge
Reported inAIR1981Guj190; (1982)1GLR204
ActsEvidence Act, 1872 - Sections 137 and 138; Code of Civil Procedure (CPC), 1908 - Sections 115 and 151
AppellantHussens Hasanall Pulavwala
RespondentSabbirbhai Hasanali Pulavwala and ors.
Appellant Advocate B.J. Shelat, Adv.
Respondent Advocate D.K. Trivedi,; F.A. Memon and; M.C. Patel, Advs.
Cases ReferredHyderabad v. Ajit Prasad Tarway
Excerpt:
civil - jurisdiction - section 115 of code of civil procedure, 1908 - section 115 does not empower high court to correct errors of fact or errors of law unless such error have relation to jurisdiction of court to try dispute - high court is not entitled to interfere with order passed by trial court in exercise of jurisdiction under section 115. - .....it would appear from the scheme of the aforesaid provisions of the evidence act that in order to crossexamine a witness, it must be shown that the party seeking cross-examination is an 'adverse party'. merely because a party is shown as a defendant in the cause title of the plaint, that party cannot be styled as an adverse party, unknown it is further shown that the party is a contesting party in the sense that he disputes the case out up by the plaintiff in the plaint. if a party accepts the plaintiff's case, there is no contest between the plaintiff and that party and such a defendant cannot be styled as an 'adverse party' and would therefore, not be entitled to cross-examine the plaintiff. in the instant case, it is clear from the written, statement filed by defendants nos. 4 and 5.....
Judgment:
ORDER

1. The facts giving rise to this revision application, briefly stated. are that respondent No. 1 filed an administration suit in the City Civil Court at Ahmedabad being Suit No. 262 of 1978 for the administration of the estate of deceased Sugarabu Kikabhai. In the said suit be joined his stepbrother Asgarali and step-sisters Amina and Zenab as defendants Nos. 1, 2 and 3.These three defendants filed written statements at Exs. 25 and 26 contesting the suit He also joined his true sisters Husena and Nafisa an defendants Nos 4 and 5 and they filed a supporting written statement Ex. 37. By that written statement, they accepted the averments made in the plaint as correct and prayed that the estate of the deceased may be administered. Defendant No. 6 Abbasbhai also filed a contesting written statement to the suit. It appears that on the basis of the averments made in the pleadings of the parties the issues were settled at Ex 42. The Plaintiff thereafter entered the witness box and he was examined in-chief by his learned Advocate and thereafter at the request of defendant No. 1 the learned Advocate for defendants Nos. 2 and 3 was called upon to cross-examine the plaintiff. It is necessary to point out that before the learned Advocate for the defendants Nos. 2 and 3 started to cross-examine the plaintiff, no request was made by defendants Nos. 4 and 5 who were supporting the case of the plaintiff to permit them to put the questions to the plaintiff. The learned Advocate for defendants, Nos, 2 and 3 cross-examined the Plaintiff at length and thereafter at about 1.45 P.M., he left the Court room with the permission of the learned Presiding Judge to offer his prayers. During his absence it appears that the Court permitted the learned Advocate for defendants Nos. 4 and 5 to cross-examine the plaintiff. When the learned Advocate for the defendants Nos. 2 and 3 returned to the Court room after offering prayers, he learnt from his junior Advocate who was taking notes that the learned Advocate for the defendants Nos. 4 and 5 had cross-examined the plaintiff. Thereupon he gave an application Ex. 67 for expunging the cross-examination of the Plaintiff by the learned Advocate for defendants Nos, 4 and 5 on the ground that they had no right to cross-examine since they were supporting the case of the Plaintiff. The learned trial Judge considered the submissions made in this behalf and by his detailed order dated 18th September 1980 directed that the cross-examination undertaken on behalf of the supporting defendants Nos. 4 and 5 as recorded in paragraph 12 of the deposition of the plaintiff should be deleted as defendants Nos, 4 and 5 had no right to crow-examine the plaintiff since they were not adverse parties. It is this order which is challenged by defendant No. 4 in this revision application.

2. Section 137 of the Evidence Act defines 'Examination-in-Chief' as examination of a witness by the party who calls him for giving evidence, The examination of that witness by the adverse party is called 'cross-examination'. The examination of that witness subsequent to the cross-examination, by the Party who called him is called 'reexamination'. Section 138 then lays down the order of examination and provides that a witness shall be first examined-in-chief, then (it the adverse party so desires) cross-examined, and then (if the Party calling him so desires re-examined. The examination in-chief and cross-examination must relate to relevant facts. The cross examination need not be confined to facts to which the witness testified on his examination-in-chief. The re-examination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is, by permission of the Court, introduced in re-examination the adverse Party may further cross-examine upon that matter Section 142 next provides that leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief or in re-examination except with the permission of the Court, According to Section 143, leading questions may however be asked in cross-examination. According to Section 154 it is open to the Court to permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party. Section 155 next provides that the credit of a witness may be impeached by the adverse party, or, with the consent of the Court, by the party who calls him in the manner set out in clauses (1) to (4) thereof.

3. It would appear from the scheme of the aforesaid provisions of the Evidence Act that in order to crossexamine a witness, it must be shown that the party seeking cross-examination is an 'adverse party'. Merely because a party is shown as a defendant in the cause title of the plaint, that Party cannot be styled as an adverse party, unknown it is further shown that the party is a contesting party in the sense that he disputes the case out up by the plaintiff in the plaint. If a party accepts the plaintiff's case, there is no contest between the plaintiff and that party and such a defendant cannot be styled as an 'adverse party' and would therefore, not be entitled to cross-examine the plaintiff. In the instant case, it is clear from the written, statement filed by defendants Nos. 4 and 5 that they wholly supported the plaintiff's case and Prayed that the estate of the deceased be administered as desired by the plaintiff. Such Persons cannot be said to be adverse parties merely because they appear to be pro forma defendants in-the cause title of the plaint.

4. In the instant case, the learned trial Judge permitted the learned Advocate for defendants Nos. 4 and 5 to cross-examine the plaintiff in the absence of the learned Advocate for defendants Nos. 2 and 3 who had left the Court room with the leave of the learned Judge for offering prayers. Defendants Nos. 4 and 5 had no right to cross-examine the plaintiff since they were not adverse parties. It was open to the learned Advocate for defendant Nos, 4 and 5 to seek the permission of the Court before the cross-examination of the plaintiff began to-put questions, but no such request was made at that stage. The learned Advocate for defendants Nos. 2 and 3 was allowed to cross-examine the plaintiff and it was only after he had left the Court room that the learned Advocate for defendants Nos. 4 and 5 began to cross-examine the Plaintiff as if they were adverse parties. When the attention of the learned trial Judge was drawn to the fact that defendants Nos.4 and. 5 had no right to cross-examine the plaintiff as they were supporting the case set up by the plaintiff in the plaint, the learned trial Judge rectified his error by directing deletion of the cross-examination of the plaintiff by the learned Advocate for defendants Nos.4 and 5. It is, therefore clear from the above facts that the learned trial Judge in exercise of his inherent powers rightly directed that paragraph 12 of the deposition of the plaintiff containing the answers given by the plaintiff on cross-examination by the learned Advocate for defendants Nos. 4 and 5, should be deleted and should not he taken into consideration as soon as the error, committed by him in permitting cross-examination at the instance of the said defendants was brought to, his notice.

5. In these circumstances, the question which arises for consideration is, whether this Court should exercise revisional jurisdiction on the plea that there is no provision in law, for deleting evidence which has already been recorded.

6. The scope of Section, 115 of the Code of. Civil Procedure was considered by the Supreme Court, in D. L. F. Housing and Construction Co. (P.) Ltd v. Sarup Singh AIR 1971 SC 2324. After reviewing the case law on the subject their Lordships of the Supreme Court observed as under in paragraph 8 of the judgment:

'The position thus seems to be firmly established that while exercising the jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however grass or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself.'

Again, in The Managing Director (MIG), Hindustan Aeronautics Ltd., Balanagar, Hyderabad v. Ajit Prasad Tarway, AIR 1973 SC 76, their Lordships of the Supreme Court observed that the order of the appellate Court may be right or wrong; may be in accordance with law or may not be in accordance with law; but if it has jurisdiction to make that order, the High Court in exercise of jurisdiction under Section 115 of the Code is not 'entitled to interfere with such an order.

7. In view of the above pronouncements of the Supreme Court it is, obvious that this, Court will not be entitled to interfere with the order Passed by the trial Court in exercise of its jurisdiction under Section 115 of the Code unless it is shown that the trial Court has committed a jurisdictional error in passing the impugned order. Now, the impugned order passed by the learned trial Judge is, in the circumstances of the case, just and proper because defendants Nos. 4 and 5 not being adverse parties had no right to cross-examine the Plaintiff. To redress a wrong, in the, absence of any provision to the contrary in the Code, the Court had inherent jurisdiction under Section 151 of the Code to pass the, impugned order. I therefore, refuse to entertain this revision application.

8. The revision application therefore fails and is dismissed. Rule is discharged with no order as to costs, Stay vacated.

9. Revision dismissed.


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