Delhi Judgment HC

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1974 SCC OnLine Del 158 : ILR (1974) 2 Del 779 : (1975) 11 DLT 63 : PLR
(1975) 77 Del 42 : AIR 1975 Del 109
In the High Court of Delhi

Civil Miscellaneous
(BEFORE RAJINDER SACHAR, J.)
Des Raj Chopra & Ors. … Petitioners;

Versus
Shri Pooran Mal & Ors. … Respondents.
Civil Misc. (M) 164 of 1974
Decided on August 27, 1974
Evidence Act, S. 137 — Examination of a witness — right of opposite party to cross-
examination — latter denied exercise of that right — Constitution of India Art. 227 — Power
and Scope of.
In the instant case the Additional Rent Controller Delhi refused permission to the petitioners to
cross-examine witness produced by respondent No. 3, the New Super Consumer Co-operative
Stores on the ground that as the defence of the petitioners as well as respondent No. 3 was
identical, the said right could not be exercised by the petitioners as their rights cannot be said to be in
any way adverse to that of the respondent No. 3.
Held :
That it is well settled that the evidence of the party cannot be received as evidence against
another party unless the latter has had an opportunity of testing it by cross-examination. Cross-
examination forms an element of rules of natural justice and as stated in Union of India v. T.R.
Verma, AIR 1957 SC 882 rules of natural justice require that a party should have the opportunity of
adducing all relevant evidence on which he relies that the evidence of the opponent should be taken
in his presence, and that he should be given the opportunity of cross-examining the witnesses
examined by that party.
P-784 B to C, 785 I, 786 A
Held Consequently :
(quashing the impugned order) that petitioners have the right and be given an opportunity to
cross-examine the witness, notwithstanding that the defence may be common to some extent to
both of them.
[P-786 D]
Held Further :
That one order of the Additional Rent Controller is not a discretionary order but is an order which
strikes at the root of a fair trial under our system of jurisprudence. To allow any evidence to be
treated as admissible without giving a right of cross-examination not only perpetuates injustice but is
shocking to a judicial conscience, apart from being manifestly illegal perverse. In such circumstances
not only it is within the power of the High Court to correct such illegality but it is incumbent on it to
do so as to prevent further mischief and stop the trial from becoming a mockery.
[P-786 B & C]
For the Petitioners:— Shri T.N. Sethi with H.C. Dhall, Advocate.
For the Respondents:— Mr. M.R. Jain with Mr. S.K. Jain, Advocate.
Page: 780
Cases Referred:
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(1) Jarwa Bair v. Pitambar Nilambar Shah, A.I.R. 1917 Calcutta 264.
(2) H.M.A.N. Kirmany and sons v. Aga Ali Akbar Khazviny Saheb, A.I.R. 1928 Madras
919.
(3) Piroja Ghadiali v. Pestonji Ghadiali, Vol. 48, 1946 BLR page 37.
(4) Sohanlal v. Gulab Chand, A.I.R. 1966 Rajasthan 229.
(5) Halsbury's Laws of England, Third edition Vol. XV page 800.
(6) Allen v. Allen and Bell, (1894) Probate Division 284.
(7) Motor Owners' Insurance Co. Led. v. Deniel, AIR 1972 Madras 15.
(8) Kishan Lal Mahadeo Pershad v. I.K. Sharma, AIR 1974, Delhi 32.
(9) Union of India v. T.R. Verma, AIR 1957 S.C. 882.
The Judgment of the Court was delivered by
RAJINDER SACHAR, J.:— This is a petition under Article 227 of the Constitution of
India against the order of the Additional Rent Controller, Delhi dated 16th of July,
1974 by which he refused permission to the petitioners to cross examine witness by
respondent No. 3 the New Super Consumer Co-operative Stores (hereinafter called the
Store).
Respondent No. 1 is the landlord of premises in dispute. He has filed an eviction
application on the allegation that the premises were originally let to Ram Swarup
respondent No. 2 who has sublet and parted with possession to one Des Raj (who was
predecessor in interest of the petitioners being the husband of the petitioner No. 1 and
the lather of the petitioner No. 2 to 4. It was also alleged that premises were
subsequently collusively sub-let to Respondent No. 3 the stores and that the store is
running its business there. As no consent has been given in writing by the landlord,
the Stores as well as other persons are liable to be evicted.
In the written statement filed by the petitioners sub-tenancy has been denied. It is
stated that the tenant was a firm of Ram Swarup & Co. of which their predecessor
Desraj was a partner. It is also alleged that the store has been accepted as a direct
tenant and landlord also received rent from the said tenant.
The store Respondent No. 3 has also filed a separate written statement and has
taken the plea that it is a direct tenant under the landlord and has independent title as
a tenant and Ram Swarup has got nothing to do with the tenancy.
The written statements by the petitioners and respondent No. 3 have been filed
separately through separate advocates. Evidence was led by the petitioners; its
witnesses were either cross-examined or
Page: 781
opportunity given for cross examination by respondent no. 3, without any objection
having been raised by the respondent No. 1, landlord. Thereafter the store produced
its witnesses, and the last witness produced was P.W. 7 Birdi Chand. Prior to the
examination of the said witness in the court, the petitioner had given notice for
production of the accounts books of the stores. It appears that the petitioners wished
to show from the cross examination, of the witnesses with reference to the books that
the store was accepted as a direct tenant by the landlord, and the various entries in
the books are supposed to support the case of the petitioners. This was so stated by
the counsel for the petitioners. But when P.W. 7, the witness, of stores was sought to
be cross examined by the counsel for the petitioner, it was opposed by the counsel for
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the landlord. The Additional Rent Controller by the impugned order accepted the plea
of the landlord and has disallowed the petitioner from cross examining the witness
produced by the Stores. Aggrieved against this order the petitioners have moved this
application under Article 227 of the Constitution.
The main ground on which the Additional Rent Controller has refused to grant
permission to the petitioners to cross examine the witness is that as the defence of the
petitioners as well as the stores is identical, the said rights cannot be exercised by the
petitioners as their rights cannot be said to be in any way adverse to that of the
respondent No. 3.
Section 137 of the Indian Evidence Act, 1872 describes that the examination of a
witness by the adverse parties shall be called cross examination. Mr. Jain the learned
counsel for the respondent maintains that as the interests of the petitioners are not
adverse to that of respondent No. 3, Stores, no right of cross-examination can be
exercised by the petitioners.
It may be noted that though undoubtedly the petitioners as well as respondent No.
3 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. Mr. Sethi pointed out that if in the eviction application, it was held that
respondent No. 3 store was a direct tenant, it may follow that the petitioners cannot
be held liable for any alleged unauthorised occupation or for alleged sub-letting the
premises to respondent No. 3. But that if on the other hand it was held that
respondent No. 3 the stores was
Page: 782
not a direct tenant, it may be open to the landlord to proceed against the petitioners
for damages for occupation or allowing respondent No. 3 to occupy the same. He
contends that the petitioners are vitally interested in proving that the respondent No.
3 is a direct tenant of the landlord for the success of their plea. And for this purpose it
is open to the petitioners to prove the same by direct evidence as well as by the
evidence obtained by cross examination of the witness produced by the respondent
No. 3 Stores. Mr. Jain referred me to a number of cases in support of his plea.
In Jarwa Bai v. Pitambar Nilambar Shah A.I.R. 1917, Calcutta 264 (1) during
proceedings under insolvency Act one creditor's claim was resisted by opposing
creditor firm named Pitambar Nalambar Shah and others, whose counsel cross
examined the creditors of the insolvent. It was later on found by the court that those
people who appeared as opposing creditors were not creditors at all, and consequently
not being creditors they were not parties to the proceedings, and as such they should
not have been allowed to appear at the enquiry. The court, therefore, held that they
could not have been allowed to intervene in the proceedings and to take part in the
cross examination of the witnesses. The case is clearly distinguishable. The petitioners
are very much necessary parties.
In H.M.A.N. Kirmany and sons v. Aga Ali Akbar Khazviny Saheb, A.I.R. 1928
Madras, 919 (2) a suit was brought to recover an amount due on a promissory note.
Defendants 1 and 2 did not appear and defendants 3 to 5 were minors and
represented by a Court Guardian; defendant No. 6 alone contested the suit. The
witnesses were also called by the defendant No. 6 after examining five witnesses, 6th
witness called was defendant No. 1, and he was put into the witness box not as
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defendant 6's witness, but as defendant 1's witness, apparently with the idea of cross-
examining him so as to obtain favourable replies for defendant No. 6. This procedure
by the trial court was rightly commented upon by the Court because as defendant No.
6 was contesting the suit on behalf of all the defendants, he could not be permitted
the devise of putting defendant No. 1 as a witness on behalf of defendant No. 1 so as
to cross examine him. The facts were obviously different. Here the petitioners and
respondent No. 3 are fighting their own respective battle separately.
In Piroja Bhadiali v. Pestonji Ghadiali, Vol. 48, 1946 BLR Page 37, (3) matrimonial
suit was brought by husband against his wife asking for divorce on the ground that
she had committed adultery with the co-defendant. After the plaintiff had closed his
case, the
Page: 783
wife examined herself as her witness. She was thereafter cross examined by the
husband's counsel. Thereafter the co-defendants counsel waited to cross examine the
wife. This was disclosed by the learned judge with the observation that defendant may
cross examine his co-defendant or his witness, if the co-defendant's interest is hostile
to his own. The court found that the interest of both the defendant and co-defendant
are similar. Moreover the Court noted that the request to cross examine by the co-
defendant was made after the real adverse party, the plaintiff has finished his cross
examination and permission was given. The co-defendant if allowed to cross examine
the defendant will be able to practicably nullify the effect of the plaintiff's cross
examination. This case is distinguishable. In the present case a request for cross
examination has been made immediately after R.W. 7 has finished his examination in
chief. The landlord has still to cross examine this witness which he will do after the
cross examination by the petitioners. Thus there is no question of nullifying the effect
of the cross examination by the respondent No. 1. Rather an opportunity will be
available to the landlord to cross examine the witness after he has come to know of
the case of the petitioners and the answers given by this witness in the cross
examination conducted by the petitioners.
In Sohanlal v. Gulab Chand, A.I.R. 1966 Rajasthan 229 (4) it was held that if a
witness for a defendant makes any statement which is injurious to the co-defendant
they have a right to cross examine him.
In Phipson on Evidence (Eleventh Edition, page 647) it is stated that a defendant
may cross examine a co-defendant or any other witness who has given evidence
against him and reply on such evidence, though there is no issue joined between
them.
Any party is entitled to cross examine any other party who gives evidence, or his
witnesses; and no evidence affecting a party is admissible against that party unless
the, latter has had an opportunity of testing its truthfulness by cross examination (See
Halsbury's Laws of England, Third edition Vol. XV para 809), (5).
In Allen v. Allen and Bell, (1894) Probate Division 248 (6) the Court of appeal held
that the evidence of one party cannot be received as evidence against another party in
the same litigation unless the latter has had an opportunity of testing it by cross
examination. Further on it was observed “If a defendant may cross examine co-
defendant's witness, a fortiori, he may cross examine co-defendant, if he gives
evidence. If it is objected that there is no Issue between a
Page: 784
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respondent and a co-respondent, the answer is that in most cases there is no issue
between co-defendants but still the right to cross examine exists. In our judgment no
evidence given by one party affecting another party in the same litigation can be made
admissible against that other party, unless there is a right to cross examine and we
are at a loss to see why there should be an deviation from that rule in the Divorce
Court”. It is, however, well settled that the evidence of one party cannot be received
as evidence against another party unless the latter has had an opportunity of testing it
by cross-examination. It has been further held that all evidence taken, whether in
examination-in-chief or cross-examination, is common and open to all the parties. It
follows that if all evidence is common and that which is given by one party may be
used for or against another party, the latter must have the right to cross-examine,
Woodroffee & Ameer Ali's 11th Edition page 2940 Note 38.
It will thus be seen that the view of the Additional Rent Controller that simply
because one of the pleas taken by the respondent No. 3 and petitioners is common,
the later can be denied the basic right to cross examine the witnesses produced by
respondent No. 3 is supported neither by precedent nor by any principle or law and
must be rejected. It may also be noted that the evidence that is being taken is
common to all the parties in the case, and if the evidence of RW 7 is to be treated as
admissible, the same can only be done if an opportunity has been given to all the
parties including the petitioner to cross examine him. Once the petitioner is refused
permission to cross examine-R.W. 7 his evidence would be inadmissible. That is the
another reason why I feel that denial of opportunity to the petitioner to cross-examine
R.W. 7 was not only manifestly illegal but would have created complications arid would
really amount to permitting evidence to be taken which later on would have to be
declared inadmissible. This would really make all this an exercise in futility. Counsel
for the respondents however urged that in spite of disposition, this court cannot
interfere under Article 227 of the Constitution, as the impugned order is not without
jurisdiction, and referred to Motor Owners' Insurance Co. Ltd. v. V. Daniel, AIR 1972
Madras 15 (7). In Kishen Lal Mahadeo Prasad v. I.K. Sharma, AIR 1974 Delhi 32, (8)
the order of the Competent Authority under Delhi Slum Areas (Improvement and
Clearance) Act, 1956 was challenged on the ground that he had not determined the
financial status of the tenant. Rejecting this the court observed that a careful study of
the order of the Competent Authority would show that he declined to determine the
status of the petitioner No. 1 because there was no need to do so as the petitioner No.
1 was not established as being
Page: 785
person in possession of the shop in question or a person carrying on business at Delhi.

If that be so his eviction from the shop in question cannot create a slum. It was in this
context that the learned judge did not consider that the order suffered from such gross
infirmity as to call for interference under Article 227 of the Constitution. Though it is
relevant to point out that the court observed that the power of superintendence of the
court extends to correcting manifest errors or law and jurisdiction.
It is true this Court does not interfere with a mere wrong order passed by the trial
court. It is also true that this court will not interfere in the exercise of discretion by the
tribunals, provided it is not arbitrary or capricious if it was a mere case of trial court
not summoning any witness, for reasons which the trial court in its discretion thought
proper, it may not have been possible to interfere with that discretion. I can also
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accept that if the trial court had disallowed the asking of the certain questions to a
witness on the ground that it was irrelevant or for any other reason, the same would
be immune from challenge under the extraordinary jurisdiction of this court, under,
Article 227 of the Constitution of India. But the present is not a case of that kind. Here
the trial court is denying the basic right to cross-examine a witness given to a party to
litigation and thus acting against settled notions of jurisprudence and fair trial.
Wigmore on Evidence Vol. V. Third Edition Article 1367 (page 29) has highlighted
the importance of the right of cross-examination and has described it as beyond any
doubt the greatest legal engine ever invented for the discovery of truth. It is also
stated therein “for two centuries past, the policy of the Anglo-American system of
Evidence has been to regard the necessity of testing by cross-examination as a vital
feature of the law. The belief that no safeguard for testing the value of human
statements is comparable to that furnished by cross-examination, and the conviction
that no statement (unless by special exception) should be used as testimony until it
has been probed and sublimated by that test, has found increasing strength in
lengthening experience”. Cross examination has also been described as a great and
permanent contribution of Anglo-American system of law to improved methods of trial
procedure. And the same must apply in India where the procedure has been borrowed
from English system. Cross-examination form an element of rules of natural justice
and as stated in Union of India v. T.R. Verma, AIR 1957 SC 882 (9) rules of natural
justice require that a party should have the opportunity of adducing all relevant
evidence on which he relies that the evidence of the opponent should be taken in his
presence, and that he should
Page: 786
be given the opportunity of cross-examining the witnesses examined by that party.
(emphasis supplied).
Thus the order of the Additional Rent Controller is not a discretionary order but is an
order which strikes at the root of a fair trial, under our system of jurisprudence. To
allow any evidence to be treated admissible without giving a right of cross-
examination not only perpetuates injustice but is shocking to a judicial conscience
apart from being manifestly illegal and perverse. In such circumstances not only it is
within the power of this court to correct such illegality but it is incumbent on it to do
so as to prevent further mischief and stop the trial from becoming a mockery.
I would therefore allow the petition and quash the impugned order, and direct that
the petitioner have the right and be given an opportunity to cross-examine R.W. 7. It
may take it clear that this order is only restricted to giving an opportunity to the
petitioner to cross-examine the witness R.W. 7. Whether the questions asked are
relevant or not and which documents, if any are admissible, are all matters which will
have to be decided by the trial court, if and when raised before him. My order is not to
be taken to deal with those matters, as they do not arise out of impugned order.
As a result the petition is allowed as above. There will be no order as to costs.
A.N.K.
Petition allowed.
———
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SCC Online Web Edition, Copyright © 2020

Page 1 Friday, February 28, 2020

In the High Court of Delhi

Des Raj Chopra & Ors. … Petitioners;

person in possession of the shop in question or a person carrying on business at Delhi.

be given the opportunity of cross-examining the witnesses examined by that party.

© Delhi High Court.

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