No Cross Examination be allowed by supporting parties of their own witnesses - produced by one of them = D.W.1 - an Officer of the defendant No.5 bank filed his affidavit in lieu of chief examination and by order dated 16.11.2012 the Court appointed an Advocate Commissioner for recording the cross examination of D.W.1. At that stage the plaintiff filed an application seeking a direction to the Advocate Commissioner to record the cross examination of D.W.1 by the plaintiff alone contending that the other defendants cannot be permitted to cross examine D.W.1 since all the defendants have a common case against the plaintiff. The said application was dismissed by the Court below in limine by order dated 18.04.2013 and aggrieved by the same the present revision petition is filed by the plaintiff. As could be seen, cross-examination of a witness can only be by the adverse party and it is for the purpose of testing the veracity of the stand taken by the witness in his chief evidence. The only exception to this is provided under Section 154 of the Evidence Act where the witness turns hostile to the party who produced him. In such a situation, as per Section 154 the Court may in its discretion permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.- Their Lordships held that trial committed wrong = The revision petitioner is the plaintiff who filed O.S.No.109/2008 seeking a decree for declaration that the Sale Certificate issued by the Recovery Officer, Debts Recovery Tribunal, vide document No.121 of 2004 in favour of the defendants 6 and 7 is null and void, and seeking a further direction to the defendant No.8 to deliver the vacant and peaceful possession of the suit schedule property to the plaintiff. The plaintiff also sought a further direction to the defendant No.8 to pay a sum of Rs.1.00 lakh towards past and future damages. The plaintiff claims title to the suit schedule property under a registered sale deed dated 19.12.1981 stated to have been executed by the defendant No.1. It was alleged that the defendant No.1 without having any right or authority had mortgaged the very same property in connection with the loan availed by the defendants 2 to 4 from the defendant No.5 Bank and ultimately the suit schedule property was brought to sale in pursuance of the Recovery Certificate issued by the Debts Recovery Tribunal in O.A.No.500 of 1997. The defendants 6 and 7 were declared as successful bidders and after receiving the bid amount the Recovery Officer issued the Sale Certificate in their favour in respect of the suit schedule property. The defendants 6 and 7 in turn sold the said property to the defendant No.8 under a registered sale deed dated 16.02.2004 and in pursuance thereof he is put in possession. Hence, the suit alleging that the creation of the equitable mortgage itself was illegal and that neither the defendants 6 and 7 nor the defendant No.8 acquired valid title.- Thus, it is clear that the title of the defendants 6 and 7 as well as the title and possession of the defendant No.8 are traceable to the rights acquired by the defendant No.5 in pursuance of the award in O.A.No.500 of 1997 followed by the auction held by the Recovery Officer. There is no conflict of interest between the defendant No.5 and the defendants 6 to 8, since the defendants 6 to 8 are claiming title through the defendant No.5. It is no doubt true that the defendants 6 & 8 filed separate written statements, however the interests of the defendants 5 and 6 to 8 are common since whatever finding that may be recorded as to the validity of creation of mortgage in favour of the respondent No.5 by deposit of title deeds by the defendant No.1 will affect the defendants 6 to 8 as well. Thus indisputably the defendant No.5 and the defendants 6 to 8 are sailing together and under no circumstances the defendants 6 to 8 can be called as adverse parties so as to cross-examine D.W.1 who deposed on behalf of the defendant No.5. The two decisions cited by the learned counsel for the respondents are clearly distinguishable on facts and in no manner support the order under Revision. For the aforesaid reasons, it appears to me that the Court below is not justified in concluding that the defendants 6 to 8 have no common interest with the defendant No.5 and that they are having an independent claim. Accordingly, the order under Revision is set aside and I.A.(SR) No.2119 of 2012 shall stand allowed. However, it is made clear that this shall not preclude the defendants 6 to 8 to seek permission of the Court to cross-examine D.W.1 in terms of Section 154 of the Evidence Act in case necessity thereof arises. Civil Revision Petition is accordingly disposed of. No costs.

THE HON'BLE MS. JUSTICE G.ROHINI    

C.R.P. No.4012 OF 2013

21-01-2014

Smt.Seelam Laxmamma. Petitioner    

Smt. Chand Sultana, and seven others. Respondents  

Counsel for the petitioner :Sri Mahmood Ali

Counsel for the Respondent No.5: Sri Venkat Raghu Ramulu
Counsel for the Respondent No.6 : Sri M.Krishna Rao
Counsel for the Respondent No.8 : Sri Sharad Sanghi

<Gist :

>Head Note:

?Cases referred:

1.2013 (3) ALD 385
2.AIR 1920 Patna 94
3.AIR 1975 Delhi 109

THE HONBLE Ms. JUSTICE G.ROHINI    

CIVIL REVISION PETITION No.4012 OF 2013    

Date:  21.01.2014


ORDER:
      This revision petition is directed against the order dated
18.04.2013 in I.A. (SR) No.2119/2012 in O.S. No.109/2008 on the
file of the Court of the XII Additional Chief Judge (FTC), City Civil
Court, Hyderabad.
      The revision petitioner is the plaintiff who filed
O.S.No.109/2008 seeking a decree for declaration that the Sale
Certificate issued by the Recovery Officer, Debts Recovery
Tribunal, vide document No.121 of 2004 in favour of the
defendants 6 and 7 is null and void, and seeking a further
direction to the defendant No.8 to deliver the vacant and peaceful
possession of the suit schedule property to the plaintiff.  The
plaintiff also sought a further direction to the defendant No.8 to
pay a sum of Rs.1.00 lakh towards past and future damages. 
      The plaintiff claims title to the suit schedule property under
a registered sale deed dated 19.12.1981 stated to have been
executed by the defendant No.1.  It was alleged that the defendant
No.1 without having any right or authority had mortgaged the very
same property in connection with the loan availed by the
defendants 2 to 4 from the defendant No.5 Bank and ultimately the
suit schedule property was brought to sale in pursuance of the
Recovery Certificate issued by the Debts Recovery Tribunal in
O.A.No.500 of 1997.  The defendants 6 and 7 were declared as 
successful bidders and after receiving the bid amount the Recovery
Officer issued the Sale Certificate in their favour in respect of the
suit schedule property.  The defendants 6 and 7 in turn sold the
said property to the defendant No.8 under a registered sale deed
dated 16.02.2004 and in pursuance thereof he is put in
possession.  Hence, the suit alleging that the creation of the
equitable mortgage itself was illegal and that neither the
defendants 6 and 7 nor the defendant No.8 acquired valid title.
      The defendant No.5 filed a detailed written statement
contending inter alia that the suit itself is not maintainable since
the property was sold in pursuance of the order passed by the
Statutory Tribunal in O.A.No.500 of 1997. The defendant No.6 also
filed a detailed written statement denying all the allegations made
in the plaint and asserting that the defendants 6 and 7 acquired
valid title.  A separate written statement was also filed by the
defendant No.8 who is in actual possession of the property in
question.
      After the evidence on behalf of the plaintiff was completed,
D.W.1 - an Officer of the defendant No.5 bank filed his affidavit in
lieu of chief examination and by order dated 16.11.2012 the Court
appointed an Advocate Commissioner for recording the cross 
examination of D.W.1.  At that stage the plaintiff filed an
application seeking a direction to the Advocate Commissioner to
record the cross examination of D.W.1 by the plaintiff alone
contending that the other defendants cannot be permitted to cross
examine D.W.1 since all the defendants have a common case   
against the plaintiff. The said application was dismissed by the
Court below in limine by order dated 18.04.2013 and aggrieved by
the same the present revision petition is filed by the plaintiff.
      I have heard the learned counsel for both the parties.
      Smt. Anusha Mahmood, the learned counsel appearing  for
the revision petitioner submitted that cross examination of a
witness is permissible only by the adverse party and therefore the
defendants 6 to 8 who are sailing with the defendant No.5 cannot
be permitted to cross examine D.W.1 on behalf of defendant No.5.
In support of her submission the learned counsel relied upon Smt.
T.Savithri Vs. Smt. T.Rama Devi & Others .
      On the other hand, Sri M.Krishna Rao and Sri Sharad
Sanghi, the learned counsel appearing for the defendants 6 and 8
while supporting the order under revision relied upon MOTIRAM
V. LALIT MOHAN  and Mrs. DES RAJ CHOPRA AND OTHERS v.        
PURAN MAL AND OTHERS .      
      Chapter-X of the Indian Evidence Act, 1872 deals with the
examination of witnesses.  Section 137 defines examination-in-
chief, cross-examination and re-examination and the same
reads as under:
137. Examination-in-chief:- The examination of a
witness by the party who calls him shall be called his
examination-in-chief.

Cross-examination:- The examination of a witness by the
adverse party shall be called his cross-examination.

Re-examination:- The examination of a witness,
subsequent to the cross-examination by the party who
called him, shall be called his re-examination.


      As could be seen, cross-examination of a witness can only be
by the adverse party and it is for the purpose of testing the veracity
of the stand taken by the witness in his chief evidence.  The only
exception to this is provided under Section 154 of the Evidence Act
where the witness turns hostile to the party who produced him.  In
such a situation, as per Section 154 the Court may in its
discretion permit the person who calls a witness to put any
questions to him which might be put in cross-examination by the
adverse party.
      Coming to the case on hand, the plaintiff claims to have
acquired title to the suit schedule property under a registered sale
deed dated 19.12.1981 executed by the defendant No.1.  The
defendant No.5 is the bank in whose favour the Recovery
Certificate was issued by the Debts Recovery Tribunal for recovery
of the amounts allegedly due from the defendants 1 to 4 and in
pursuance thereof the suit schedule property was put to public
auction in which the defendants 6 and 7 were declared as
successful bidders.  Accordingly Sale Certificate was issued in their
favour and the defendant No.8 claims to have purchased through
defendants 6 and 7 under a registered sale deed.
      The record shows that the defendant No.5 Bank and the
defendants 6 and 8 filed separate written statements.  The
defendants 1 to 4 remained ex parte.  Having considered the stand
taken in the respective written statements of the defendants 5, 6
and 8, the Court below held that the defendant No.5 and the
defendants 6 to 8 have no common interest and all of them are
making independent claims.  Accordingly the Court below declined
to confine the cross-examination of D.W.1 only by the plaintiff.
      The copies of the plaint and the written statements filed by
the defendants 5, 6 & 8 are placed before this Court and a perusal
of the same shows that the allegation in the plaint against the
defendant No.5 was that the suit schedule property was brought to
sale in collusion with the defendants 1 to 4 and that the creation of
the mortgage over the suit schedule property itself was illegal.  The
said allegations were denied in the written statement filed by the
defendant No.5 and it was sought to be contended that the
mortgage was validly created and the suit schedule property was
brought to sale in accordance with law.
      So far as the defendants 6 and 7 are concerned, they are
admittedly auction purchasers in the auction held by the Recovery
Officer in pursuance of the order passed by the Debts Recovery
Tribunal in favour of the defendant No.5.  The defendant No.8 is
claiming title and possession through defendants 6 and 7 having
purchased under a registered sale deed.
      Thus, it is clear that the title of the defendants 6 and 7 as
well as the title and possession of the defendant No.8 are traceable
to the rights acquired by the defendant No.5 in pursuance of the
award in O.A.No.500 of 1997 followed by the auction held by the
Recovery Officer. There is no conflict of interest between the
defendant No.5 and the defendants 6 to 8, since the defendants
6 to 8 are claiming title through the defendant No.5.   It is no
doubt true that the defendants 6 & 8 filed separate written
statements, however the interests of the defendants 5 and 6 to 8
are common since whatever finding that may be recorded as to the
validity of creation of mortgage in favour of the respondent No.5 by
deposit of title deeds by the defendant No.1 will affect the
defendants 6 to 8 as well. Thus indisputably the defendant No.5
and the defendants 6 to 8 are sailing together and under no
circumstances the defendants 6 to 8 can be called as adverse
parties so as to cross-examine D.W.1 who deposed on behalf of the
defendant No.5.
      The two decisions cited by the learned counsel for the
respondents are clearly distinguishable on facts and in no manner
support the order under Revision.
      For the aforesaid reasons, it appears to me that the Court
below is not justified in concluding that the defendants 6 to 8 have
no common interest with the defendant No.5 and that they are
having an independent claim.
      Accordingly, the order under Revision is set aside and
I.A.(SR) No.2119 of 2012 shall stand allowed. However, it is made
clear that this shall not preclude the defendants 6 to 8 to seek
permission of the Court to cross-examine D.W.1 in terms of
Section 154 of the Evidence Act in case necessity thereof arises.
      Civil Revision Petition is accordingly disposed of. No costs.

      Consequently, Miscellaneous Petitions, if any, pending
in this Revision Petition shall stand closed.
______________
G. ROHINI, J
Date: 21.01.2014

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