2009 (8) TMI 1286 - HC - Indian Laws

Revision petitioners challenge witness cross-examination in partition suit; High Court orders fresh consideration. Ex parte injunction order set aside.

In CRP (PD) No. 1200 of 2009, the revision petitioners sought to reject the right of the first respondent to cross-examine a witness in a partition suit. ... Right to cross-examine - adverse interest - ex parte injunction - prima facie case - balance of convenience - irreparable injury - right to reasons - remand for fresh considerationRight to cross-examine - adverse interest - remand for fresh consideration - Whether the plaintiff (first respondent) had an interest adverse to D.W.1 (the fifth respondent) so as to entitle her to cross-examine him and whether the trial court's order dismissing the petitioners' application should stand. - HELD THAT: - The Court examined the statutory framework governing examination and cross-examination and held that the right to cross-examine exists only for a party having an adverse interest; such adversity must be assessed from the entire pleadings and, where relevant, from related proceedings concerning the same subject-matter. The High Court found that the trial Judge had considered limited portions of the fifth respondent's written statement and overlooked the plaint filed by the fifth respondent in O.S. No. 980 of 2009 which, taken with other pleadings, showed support for the first respondent on the core issues of acquisition and the will. Because the trial court had not considered these materials, the matter required fresh consideration; the trial court's order dismissing the petitioners' application was set aside and the issue remitted for fresh adjudication on merits and law, with liberty to the petitioners to place the plaint in O.S. No. 980 of 2009 on record in the interlocutory proceedings. [Paras 19, 23, 27, 29, 37]Order dismissing the application was set aside and the matter remitted to the trial court for fresh consideration on merits and as per law; petitioners may produce the plaint in O.S. No. 980 of 2009 in the interlocutory proceedings.Ex parte injunction - prima facie case - balance of convenience - irreparable injury - right to reasons - Whether the ex parte order granting interim injunction in I.A. No. 1041 of 2009 was sustainable in the absence of recorded reasons addressing prima facie case, balance of convenience and irreparable injury. - HELD THAT: - The Court reiterated that an ex parte injunction must be predicated on an assessment of prima facie case, balance of convenience and irreparable injury, and that the order should record the reasons which weighed with the trial Judge. A cryptic order that merely reproduces the ingredients of Order 39 Rule 1 without indicating the materials considered or the reasoning does not suffice and hinders appellate review. The respondent's counsel conceded that reasons were not indicated and that the trial Judge should reconsider the matter after hearing the defendant's counter. Accordingly the ex parte injunction order was set aside and the trial Judge directed to consider the interlocutory application afresh on merits and in accordance with law, recording reasons and disposing the matter within thirty days. [Paras 32, 33, 34, 36, 38]Order granting ex parte interim injunction set aside; trial Judge directed to decide the interlocutory application on merits with reasons and dispose of it within thirty days.Final Conclusion: Both impugned orders are set aside: the interlocutory dismissal regarding the first respondent's right to cross-examine D.W.1 is remitted to the trial court for fresh consideration on merits (with liberty to place O.S. No. 980/2009 on record), and the ex parte injunction is vacated with a direction to the trial Judge to reconsider the interlocutory application on merits, record reasons addressing prima facie case, balance of convenience and irreparable injury, and dispose the matter within thirty days; no costs. Issues Involved:1. Right to cross-examine a witness (CRP (PD) No. 1200 of 2009).2. Grant of interim injunction (CRP (PD) No. 1273 of 2009).Summary:CRP (PD) No. 1200 of 2009:Background Facts: The suit in O.S. No. 469 of 2004 was filed by the first respondent for partition of the suit property into seven equal shares. The property was purchased in the name of Janakiammal by her husband K. Venkatesalu. The plaintiff contended that the will dated 8.8.2002, allegedly executed by Janakiammal, was a forgery. The defendants contested the suit, claiming the property belonged to Janakiammal and was purchased with her stridhana property.Interlocutory Application: The revision petitioners filed I.A. No. 608 of 2008 to reject the right of the first respondent to cross-examine the fifth respondent (D.W.1), arguing that there was no adverse interest between them. The first respondent countered, asserting conflicting interests. The trial Judge dismissed the application, allowing the first respondent to cross-examine D.W.1.Examination of Witnesses: According to Chapter X of the Indian Evidence Act, 1872, cross-examination is a right given to the adverse party. The trial court must consider the entire pleadings to determine adverse interest. The fifth respondent's separate suit (O.S. No. 980 of 2009) and its pleadings were also relevant to this determination.The Dispute: The main dispute involved the acquisition of the property and the validity of the will. The fifth respondent's pleadings supported the first respondent's case regarding these issues. The trial Judge's decision was based on the written statement but did not consider the subsequent suit's pleadings. Therefore, the matter requires fresh consideration by the trial court.Disposal: The order in I.A. No. 608 of 2008 is set aside, and the matter is remitted to the trial court for fresh consideration. The civil revision petition is allowed.CRP (PD) No. 1273 of 2009:Background Facts: The respondent filed O.S. No. 980 of 2009 for an injunction against the revision petitioners, claiming the property belonged to his father, K. Venkatesalu, and was in possession of the legal heirs after his death. The defendants allegedly created a forged will and mortgaged the property.Prima Facie Case: The trial Judge granted an ex parte injunction without indicating the materials considered for prima facie case, balance of convenience, and irreparable injury. The Supreme Court mandates that reasons must be recorded to ensure clarity and enable appellate review.Disposal: The order in I.A. No. 1041 of 2009 is set aside. The trial Judge is directed to consider the application on merits and dispose of it within thirty days. The civil revision petition is allowed.