Bombay High Court
JANABAI GANGARAM KENDREversusVISHWANATH SHYAMRAO PHAD AND OTHERS
- Disposal
- DISPOSED OFF
Holding
Each adverse party retains the right to independently cross‑examine witnesses despite the filing of a common written statement, absent any specific statutory prohibition.
Summary
Janabai Gangaram Kendre filed a writ petition challenging the civil judge's order that rejected her application to allow each of the four defendants to cross‑examine her witnesses independently, on the ground that they had filed a common written statement. The petitioner argued that Section 136 of the Indian Evidence Act and Order XVIII Rule 4(2) of the CPC grant every adverse party the right to cross‑examine witnesses, and that the trial court erred in refusing this right. The respondents contended that a common written statement meant a unified defence and that separate cross‑examination could cause inconsistent evidence. The High Court held that filing a common written statement does not bar individual defendants, each, being an adverse party, from independent cross‑examination unless a specific legal prohibition exists. Consequently, the trial court's order was quashed, the petition was allowed, and the trial court was directed to dispose of the suit expeditiously within a year.
Issues considered
- Whether a common written statement filed by multiple defendants precludes each defendant from independently cross‑examining the plaintiff's witnesses.
- Whether Section 136 of the Indian Evidence Act, 1872 and Order XVIII Rule 4(2) of the Code of Civil Procedure, 1908 confer an unconditional right to independent cross‑examination on each adverse party.
Legislation cited
- Code of Civil Procedure, 1908 — s. Order XVIII Rule 4(2)
- Indian Evidence Act, 1872 — s. 136
Subjects
- cross‑examination
- common written statement
- adverse party rights
- Indian Evidence Act
- Code of Civil Procedure
- civil procedure
- multiple defendants
- writ petition
Judgment
2026:BHC-AUG:12917
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
30 WRIT PETITION NO. 9594 OF 2017
JANABAI GANGARAM KENDRE
VERSUS
VISHWANATH SHYAMRAO PHAD AND OTHERS
...
Mr. J. M. Murkute, Advocate for the Petitioner.
Mr. S. S. Jadhavar, Advocate for Respondent Nos.1 to 4.
Mr. Balbhim R. Kedar, Advocate for Respondent Nos.6 and 7.
...
CORAM : SIDDHESHWAR S. THOMBRE, J.
DATE : 24rd MARCH 2026
P.C.:-
1. Heard learned Advocates for the respective parties.
2. The present petition challenges the order dated 09.06.2017
passed by the learned Civil Judge, Senior Division, Udgir in R.C.S. No.
492 of 2014, whereby the application filed by the Petitioner seeking
permission to independently cross-examine Respondent Nos.1 to
4/Plaintiffs came to be rejected.
3. The learned Trial Court, while rejecting the said application,
observed that since Respondent Nos.1 to 4/Defendant Nos. 1 to 4 have
filed a common written statement, they do not have an independent
right to conduct separate cross-examination through different
Advocates.
4. Mr. J. M. Murkute, learned Advocate for the Petitioner
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submits that, in view of Section 136 of the Indian Evidence Act, 1872
and Order XVIII Rule 4(2) of the Code of Civil Procedure, 1908, an
adverse party has a right to cross-examine the witnesses. He submits
that the learned Trial Court failed to consider this legal position and
has recorded perverse findings.
5. Per contra, Mr. S. S. Jadhavar, learned Advocate for
Respondent Nos. 1 to 4, supports the impugned order. He submits that
since Defendant Nos. 1 to 4 have filed a common written statement,
their defence is identical. Merely engaging different Advocates would
not entitle them to conduct separate cross-examination, as it may lead
to inconsistent evidence. He, therefore, submits that the learned Trial
Court has rightly rejected the application.
6. Having heard the learned Advocates for the respective parties
and upon perusal of the application as well as the written statement, it
is not in dispute that the Defendants have filed a common written
statement. However, they are represented by different Advocates. In
such circumstances, if the Defendants seek to independently cross-
examine the Plaintiffs and other witnesses, such a request cannot be
rejected solely on the ground that a common written statement has
been filed.
Each Defendant, being an adverse party, has a right to cross-
examine the witnesses. In absence of any specific legal prohibition, the
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learned Trial Court ought to have permitted such cross-examination.
The impugned order does not record any finding pointing out a legal
bar to such a course.
7. In view of the above, this Court is of the opinion that the
learned Trial Court has committed an error in rejecting the application.
Hence, interference is warranted.
8. Accordingly, the present petition is allowed. The order dated
09.06.2017 passed by the learned Civil Judge, Senior Division, Udgir in
R.C.S. No. 492 of 2014 is quashed and set aside. Consequently, the
application stands allowed.
9. Learned Advocates for both sides submit that since the suit is
of the year 2014, a direction may be issued to the Trial Court for
expeditious disposal.
10. Considering that the suit is of the year 2014, the Trial Court
is directed to decide R.C.S. No. 492 of 2014 as expeditiously as
possible and preferably within a period of one year from the date of
this order.
(SIDDHESHWAR S. THOMBRE, J.)
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