Evidence is the impression of facts and the object of cross-examination is to reform the impressions to minimize them, to explain them and throw doubt on them. The object of cross-examination is not to produce startling effect, but to elicit facts which will support the theory intended to be out forward.

While examination in chief brings forth in brief one side of a case, probably, biased, interested and even false, cross-examination brings forth the undisclosed facts.

Section 138 of the Indian Evidence Act, 1872 (hereinafter referred to as "Evidence Act"), deals with the Order of examinations, i.e. the witness shall be first examined-in-chief, then cross-examined and if required later to be re-examined by the party calling witness. Section 137 of the Evidence Act defines 'Examination-in-Chief' as examination of a witness by the party who calls him for giving evidence. The examination of that witness by the adverse party is called 'cross-examination'. The examination of that witness subsequent to the cross-examination, by the Party who called him is called 're-examination'.

This article will solely deal with the order in which a cross-examination is required to be conducted in the civil cases.

The Provisions of Order 18 Rules 1 and 2 of the Code of Civil Procedure, 1908 ("CPC") envisages the order of examination of witnesses and the right to begin. The witness can be examined in chief by way of his affidavit, thereafter he can be cross-examined. After completion of cross examination, if there are any aspect that are required to be clarified or any ambiguity that is required to be ruled out, the witness may be subjected to re-examination.

Firstly, the evidence in chief shall be on par with the pleadings. It cannot be in the form of arguments or submissions. In this regard a decision is reported in Harish Loyalka And Another vs Dileep Nevatia And Others [2019 SCC OnLine Bom 68], wherein it has been observed as follows;

"The provisions of Order 18 Rule 4 of the CPC require that the "examination in chief" shall be on affidavit. This means that the affidavit in lieu of examination in chief can contain, and contain only, such material as is properly admissible in examination in chief, in a manner no different than if the witness was in the witness box and his direct evidence was being taken by his advocate. An affidavit that contain arguments and submissions is neither an affidavit within the meaning of CPC Order 19, Rule 3, nor an affidavit in lieu of examination in chief within the meaning of CPC Order 18, Rule 4"

Secondly, cross-examination is generally considered to be the most difficult branch of the multifarious duties of the advocate. The true question, therefore, in trials of cases is not whether it is possible that the testimony may be false, but whether there is sufficient probability of its truth, that is, whether the facts are proved by competent and satisfactory evidence. By competent evidence it is meant, that which the law requires, as the fit and appropriate proof in the particular case, such as the production of writing, where its contents are subject of inquiry. By satisfactory evidence, is intended that amount of proof which ordinarily satisfies an unprejudiced mind beyond reasonable doubt.

Finally, Order 18 Rule 17 of CPC enables the Court, at any stage of a suit, to recall any witness who has been examined (subject to the law of evidence for the time being in force) and put such questions to him as it thinks fit. The power to recall any witness under Order 18 Rule 17 CPC can be exercised by the Court either on its own motion or on an Application filed by any of the parties to the suit requesting the Court to exercise the said power. The power is discretionary and should be used sparingly in appropriate cases to enable the Court to clarify any doubts it may have in regard to the evidence led by the parties. The said power is not intended to be used to fill up omissions in the evidence of a witness who has already been examined.

It is a matter of common knowledge that in a dispute between a Plaintiff and Defendant, it is first the Plaintiff's witnesses which are called for proving the Plaintiff's case, where after the Defendant's witnesses are called to rebut the same. The right to begin and the question for leading evidence, can be found from Order 18, Rule 1, CPC. Order 18 Rule 1 states that "The Plaintiff has the right to begin unless the Defendant admits the facts alleged by the Plaintiff and contends that either in point of law or on some additional facts alleged by the Plaintiff, the Plaintiff is not entitled to any part of the relief which he seeks, in which case the Defendant has the right to begin."

Order 18 Rule 2 CPC, would make it clear that the party having the right to begin shall state his case and produce his evidence in support of the issues, which he is bound to prove.

A corollary of the above would show that the thumb rule is that the Plaintiff has to prove his claim by positive proof, because the Court has to see whether there is proof of claim or not before enquiring into the truth or otherwise of the defence.

The Hon'ble Andhra Pradesh High Court in G. Venkatakrishnam Raju v. B. Jayalakshmi [1988 (1) APLJ 6 (SN)] has observed that the question as to who should be permitted to lead evidence and at what stage is not exhaustively dealt with by the provisions of CPC. Order 18 Rule 1 CPC recognizes generally the Plaintiffs right to begin the case, because it is on him the law places burden of proving his case. Order 18 Rule 2 further states that either on the day fixed for the trial of the suit or any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence and thereafter the rival party should state its case and lead evidence. The party beginning will have a right to reply generally. The evidence is then closed.

These provisions work well enough when all the parties are nearly arraigned either on the side of the Plaintiffs or Defendants. But when there are non-co-operating Defendants having common interests with the Plaintiffs, the situation gets complicated. Order 18 provides no express guidance in dealing with that situation. Nor does it tell us when a Court witness should be examined. One cannot find anything in support of or in opposition to the claims of a supporting Defendant to lead evidence after the evidence of the contesting Defendants is over.

The main purpose of this article is to deal with the aforementioned scenario.

In such a scenario if any of the Defendants supports the case of the Plaintiff in whole or in part, then he should address the Court and lead his evidence first before the other Defendants who do not support wholly or in part the Plaintiff's case. This was held in Shah Hiralal Himatlal And Ors. vs M.G. Pathak And Ors. [AIR 1964 Guj 26] and in Mrs. Sarabjit Singh vs Mr. Gurinder Singh Sandhu & Ors. [ILR (2011) I Delhi 624].

The order in which Defendants lead evidence becomes important only when some of them support the case of the Plaintiff, in whole or in part, while the others do not. If all the Defendants completely oppose the Plaintiff's case, then the question of order of leading evidence amongst the Defendants is immaterial.

In such cases among Defendants the order of leading evidence should be as follows:

(1) Those Defendants who fully support the case of the Plaintiff.

(2) Those Defendants who partly support the case of the Plaintiff.

(3) Those Defendants who do not support the casa of the Plaintiff in any part.

The classification of the Defendants in the aforesaid three categories must regulate the cross-examination of the Plaintiff's witness.

This has also been observed in the matter of Jaldhari Sah & Ors vs Most. Paro Devi & Ors [C.Misc.-52730/2016, passed on 05.01.2018] wherein the Hon'ble Patna High Court has observed that the provisions as contained in Section 137 and 138 of the Evidence Act, as well as the procedure contained in Order 18 Rule 2 of the CPC, provide the practice of leading evidence, as detailed hereinabove.

Another question arises whether the sequence of cross-examination of a witness is to be determined solely on the basis of the pleadings as raised or whether the stand taken by that party till the stage his evidence is to be recorded has to be taken into consideration?

In this regard, the Hon'ble Bombay High Court in Kalpana Navneet Samarth and Ors. vs. Seema Arun Mankar and Ors. [Writ Petition No. 7537/2019, decided on: 15.11.2019] has held that the sequence of cross-examination cannot be determined solely on the basis of the pleadings and that other factors which take place during the course of trial till the stage the evidence is recorded also have to be taken into consideration. In a given case after filing the written statement, the Defendant who has initially sought to support the Plaintiff may during the course of the trial take a different stand. In that situation, it would be open for the Plaintiff to contend that as the said Defendant no longer supports the case of the Plaintiff, his conduct in that regard is liable to be taken into consideration. Neither the provisions of Section 138 of Evidence Act, nor the provisions of Order 18 Rule 2 of CPC restricts the consideration only to the pleadings of the parties. All factors which have come on record during the trial are liable to be taken into consideration to determine as to who is an adverse party while determining the sequence of cross-examination.

It is true that if any new matter is introduced, the opposing Defendants might be allowed an opportunity subsequently to cross-examine the witness, but this would be a cumbersome process and would unnecessarily prolong the proceedings. Therefore, the rule requires that the Plaintiff and such of the Defendants who either support the Plaintiff's case wholly or in part, should address the Court and call their evidence in the first place and thereafter, the other party which opposes the Plaintiff's case should address the Court and call their evidence.

A perusal of the above would show that any other practice would be inconvenient and might work an injustice to those Defendants who oppose the Plaintiff's case. For a simple reason that if the opposing Defendants have cross-examined the Plaintiff's witnesses, the other Defendants who support the Plaintiff's case, if allowed to cross-examine such supporting Defendants by leading question may possibly elicit evidence from the witnesses which have not been elicited in examination-in-chief and which may end up filling the lacunas left in the examination-in chief.

The above course would clearly result in saving of time and will prevent any dispute at the trial as to the right of Defendant to further cross-examination. As observed by various Courts across the country, any alternative course might result in denial of a fair trial.

A corollary of the above discourse is that a party who is supporting the case of the Plaintiff either fully or partially cannot be said to be an adverse party in the same sense in which a party is contesting the claim of the Plaintiff. In case this order is not followed for the purpose of cross-examination, then any lacunae which is left in the cross-examination by the contesting party will be filled up, in the cross-examination conducted by the Defendants, who are either partially or fully supporting the case of the Plaintiff. This will be prejudicial to the interest of the contesting party.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.