Supporting defendants must cross-examine the plaintiff before the contesting defendant to prevent filling of lacunae.

The Petitioner (Defendant No. 1) and Respondents are siblings involved in two clubbed partition suits (O.S. No. 343/2005 and O.S. No. 44/2008) regarding their deceased father’s estate

While the Petitioner contested the suits, asserting that several properties were not part of the joint family estate, Respondent Nos. 2 to 6 (Defendants No. 2 to 6) filed written statements essentially supporting the Plaintiff’s (Respondent No. 1) claims

The Petitioner filed a memo before the Trial Court seeking to cross-examine the Plaintiff only after the other Defendants had concluded their cross-examination, arguing that their interests were aligned with the Plaintiff and an earlier cross-examination by the Petitioner would lead to a "leakage" of his defense

The Trial Court rejected the memo on 20.04.2019, holding there was no specific provision for such a procedure and no apparent conflict of interest

1. Whether a contesting defendant has the right to cross-examine the plaintiff after the defendants who support the plaintiff's case have concluded their cross-examination

2. Whether the Trial Court erred in failing to categorize defendants based on their alignment with the plaintiff for the purpose of the order of cross-examination under the Indian Evidence Act

The Court primarily applied Section 137 of the Indian Evidence Act, 1872, which defines examination-in-chief, cross-examination by the "adverse party," and re-examination

It relied on the principle established in *Shah Hiralal Himatlal v. M.G. Pathak* (Gujarat HC) and *Sarabjit Singh v. Gurinder Singh Sandhu* (Delhi HC), which mandates that defendants who support the plaintiff (wholly or partially) must lead evidence and conduct cross-examination before the contesting defendants to prevent the filling of lacunae in the plaintiff's case

The Court distinguished *M/s. Ennen Casting Pvt. Ltd. v. M.M. Sundaresh*, noting it pertained to the right of a defendant to cross-examine a co-defendant, rather than the order of cross-examining the plaintiff

The High Court found that Respondent Nos. 2 to 6, despite being labeled as defendants, filed pleadings *pari materia* with the Plaintiff and supported the suit’s claims; thus, they were not "adverse parties" in the same sense as the Petitioner

The Court reasoned that if the contesting Petitioner were forced to cross-examine first, any gaps or defenses revealed could be "filled up" or neutralized by the supporting defendants during their subsequent cross-examination, causing significant prejudice to the Petitioner’s defense

The Court held that the Trial Court's reliance on *M/s. Ennen Casting* was misplaced as it did not address the procedural order of cross-examination when defendants are divided into groups supporting and opposing the Plaintiff

Under Section 137, the sequence must reflect the actual adversarial nature of the parties

It held that Defendants who support the Plaintiff’s case must cross-examine the Plaintiff's witnesses first, followed by the contesting Defendant

The parties were directed to appear before the Trial Court on 17.03.2026 to proceed in accordance with this clarified sequence