Rajeev Thomas v. Sheeja Antony, Marykutty Thomas, Rosamma Thomas and Saju Thomas

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 29[TH] DAY OF MARCH 2023 / 8TH CHAITHRA, 1945 O.P.(FC) NO. 405 OF 2021** **AGAINST THE ORDER DATED 05.04.2021 IN I.A.NO.2478 OF 2019 IN O.P.NO.300 OF 2016 ON THE FILE OF THE FAMILY COURT, KOTTAYAM** ## **PETITIONER:** **RAJEEV THOMAS, AGED 43 YEARS, S/O. THOMAS, KOCHUKANICADU HOUSE, PERUMBANACHY P.O., MADAPPALLY VILLAGE, REP BY HIS POWER OF ATTORNEY HOLDER BEENA JOSHY (ROSAMMA) , AGED 43 YEARS, W/O. JOSHY JOSEPH PADANILAM, RESIDING AT PADANILAM HOUSE, THRIKODITHANAM P.O., THRIKODITHANAM VILLAGE, CHANGANASSERY TALUK, KOTTAYAM DISTRICT.** **BY ADVS.** **V.R.KESAVA KAIMAL C.S.RAJANI** ## **RESPONDENTS:** - **1 SHEEJA ANTONY KOCHUKANICADU HOUSE, PERUMBANACHY P.O., MADAPPALLY VILLAGE, KOTTAYAM DISTRICT-686 548.** - **2 MARYKUTTY THOMAS, PADANILATHU HOUSE,THRIKODITHANAM P.O., KOTTAYAM DISTRICT-686 105.** 2 ## O.P.(FC) No.405 of 2021 - **3 ROSAMMA THOMAS, PADANILATHU HOUSE,THRIKODITHANAM P.O.,** - **KOTTAYAM DISTRICT-686 105.** - **4 SAJU THOMAS, KARAKKATTUKUNNEL HOUSE, KORUTHODU P.O., MUNDAKKAYAM VILLAGE, KOTTAYAM DISTRICT-686 513** **BY ADVS.** **RAJESH SIVARAMANKUTTY** **P.VISHNU PRASAD ARUL MURALIDHARAN** - **T.S.ATHIRA** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 17.03.2023, THE COURT ON 29.03.2023 DELIVERED THE FOLLOWING:** 3 O.P.(FC) No.405 of 2021 ## **JUDGMENT** ## P.G. Ajithkumar, J. Ext.P8 order dated 05.04.2021 of the Family Court, Kottayam at Ettumanoor is under challenge in this Original Petition filed under Article 227 of the Constitution of India. The 4[th] respondent in O.P.No.300 of 2016 was examined in chief. He was cross-examined by the petitioner. Respondent Nos.1 to 3 have not cross-examined the 4[th] respondent. At that stage, the petitioner in O.P.No.300 of 2016 filed I.A.No.2478 of 2019 requesting the court not to allow respondents No.1 to 3 to cross-examine the 4[th] respondent. The Family Court as per Ext.P8 allowed that request. The 1[st] respondent in O.P.No.300 of 2016 filed this Original Petition challenging that order. 2. On 11.08.2021, the Original Petition was admitted. Notice was directed to be served on respondents No.1 and 4 and service of notice on respondents No.2 and 3 was dispensed with. Further proceedings in O.P.No.300 of 2016 was stayed. 4 O.P.(FC) No.405 of 2021 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for respondents No.1 and 4. 4. O.P.No.300 of 2016 was filed by the 1[st] respondent seeking a decree of recovery of gold ornaments and money. She filed M.C.No.145 of 2016 for getting maintenance. The petitioner is the husband of the 1[st] respondent. The petitioner has filed O.P.(G&W) No.992 of 2016, O.P.No.290 of 2018 and O.P.No.292 of 2018; all are pending trial before the Family Court. The 4[th] respondent is the petitioner in O.P.Nos.555 of 2018 and 556 of 2018, which he originally filed before the Munsiff’s Court, Changanassery and later transferred to the Family Court. The 4[th] respondent wants to establish his right and title to the property he purchased from the petitioner, for which he has filed O.P.Nos.555 and 556 of 2018. All other cases are relating to the matrimonial dispute between the petitioner and the 1[st] respondent. Respondent Nos.2 and 3, being the mother and sister of the petitioner, were made parties to the litigations. During the joint trial of the said 5 ## O.P.(FC) No.405 of 2021 cases, the 4[th] respondent was examined as a witness. He was cross-examined on behalf of the 1[st] respondent. When reached the turn of the petitioner, the 1[st] respondent filed I.A.No.2478 of 2019. The contention was that the petitioner and the 4[th] respondent were having a common interest and were not adverse parties. By virtue of the provisions of Sections 137 and 138 of the Indian Evidence Act, 1872, an adverse party alone has the right to cross-examine, and therefore, the petitioner does not have the right to crossexamine the 4[th] respondent. It was further contended that the petitioner and also respondents No.2 and 3, who contested the case in common, tactfully avoided to cross-examine the 4[th] respondent before the cross-examination by the 1[st] respondent and their intention was to get over the flaws in their evidence and to fill up lacuna. 5. The learned counsel appearing for the petitioner would submit that from the objection filed by the 4[th] respondent in O.P.No.300 of 2016 it is quite clear that he has not been sailing with petitioner, instead they have conflicting 6 ## O.P.(FC) No.405 of 2021 interest. A specific contention set forth by the 4[th] respondent is that the original petition was filed by the petitioner in collusion with the 1st respondent. Such a contention is seen raised in the objection, a copy of which is Ext.P5. 6. The Family Court placed reliance on the decision in **Sudam Sahoo v. District Judge, Cuttack and others [AIR 2016 Ori.38 : 2016 KHC 2547]** in order to hold that the petitioner not being an adverse party, has no right to crossexamine the 4[th] respondent. In that decision, the principle laid down was that an adverse party alone has the right to crossexamine a witness. There cannot be any quarrel with that proposition since Section 137 of the Evidence Act says that the examination of a witness by the adverse party is called the crossexamination. Therefore, the question is whether the petitioner can be termed as an adverse party in the context of Section 137 of the Evidence Act insofar as the 4th respondent is concerned. 7. The 4[th] respondent purchased property from the petitioner. While the 4[th] respondent wants to establish that he obtained valid title to the property, the 1[st] respondent wants 7 ## O.P.(FC) No.405 of 2021 to avoid the sale deeds in favour of the 4[th] respondent. The 1[st] respondent has a contention that in order to defeat her interest, the petitioner has alienated the property in favour of the 4[th] respondent. In that view of the matter, it may be said that there has been a common interest for the petitioner and the 4[th] respondent. But, the 4[th] respondent would contend that in order to defeat his right, the petitioner instigated the 1[st] respondent to initiate the proceedings. When collusion between the petitioner and the 1[st] respondent is thus alleged, interse interest between the 4[th] respondent and the petitioner becomes conflicting. 8. Moreover, if the petitioner is denied an opportunity to cross-examine the 4[th] respondent, no part of his evidence can be used against the petitioner. In that view of the matter also, the petitioner has to be given an opportunity to crossexamine the 4[th] respondent. Of course, the petitioner should have cross-examined first. But there is nothing on record to show that the 1[st] despondent insisted on the petitioner to cross-examine the 4[th] respondent first. 8 O.P.(FC) No.405 of 2021 9. In such circumstances, we are of the view that Ext.P8 order is unsustainable in law and liable to be set aside. The Family Court shall give an opportunity to the petitioner to cross-examine the 4[th] respondent. Considering the nature of the contentions and in the interest of justice, it is necessary to give a further opportunity to the 1[st] respondent to crossexamine the 4[th] respondent, once the petitioner completes his cross-examination. The Family Court shall ensure that the cross-examination by the petitioner is as permitted under Section 5 of the Evidence Act alone and does not go beyond the points in controversy in O.P.Nos.555 and 556 of 2018. This Original Petition is allowed accordingly. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 9 O.P.(FC) No.405 of 2021 ## **APPENDIX OF OP (FC) 405/2021** ## **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE ORIGINAL PETITION IN OP NO.3000/2016 ON THE FILES OF FAMILY COURT, ETTUMANOOR** **EXHIBIT P2 TRUE COPY OF THE PETITION IN G & W.O.P.NO.992/2016 ON THE FILES OF FAMILY COURT, ETTUMANOOR** - **EXHIBIT P3 TRUE COPY OF THE DIVORCE O.P.PETITION NO.290/2018 ON THE FILES OF FAMILY COURT, ETTUMANOOR** **EXHIBIT P4 TRUE COPY OF THE OBJECTIONS FILED BY THE FIRST RESPONDENT TO EXT.P3** **EXHIBIT P5 TRUE COPY OF THE OBJECTIONS FILED BY THE FOURTH RESPONDENT TO EXT.P1** **EXHIBIT P6 TRUE COPY OF THE PETITION IN IA NO.2478/2019 IN OP NO.300/2016 ON THE FILES OF FAMILY COURT, ETTUMANOOR** **EXHIBIT P7 TRUE COPY OF THE OBJECTIONS FILED TO EXT.P6 EXHIBIT P8 TRUE COPY OF THE ORDER DATED 05.04.2021 IN IA NO.2478/19 IN OP NO.300/16 PASSED BY THE FAMILY COURT, ETTUMANOOR**