HC-KAR NC: 2026:KHC:8731 WP No. 19749 of 2019 - 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF FEBRUARY, 2026 BEFORE THE HON'BLE MS. JUSTICE TARA VITASTA GANJU WRIT PETITION NO. 19749 OF 2019 (GM-CPC) BETWEEN: ANTONY MARIAN FERNANDES S/O LATE PETER FERNANDES, AGED ABOUT 73 YEARS, R/AT D.NO.17-8-500, THE MODERN CEMENT CONCRETE WORKS, SILVA ROAD, MANGALORE-576 001. …PETITIONER (BY SRI. VARUN SAI.Y., ADVOCATE FOR SRI. SACHIN.B.S., ADVOCATE) AND: 1. RAYMOND FERNANDES S/O MR. PETER FERNANDES, AGED ABOUT 55 YEARS, R/AT D.NO.17-8-500, THE MODERN CEMENT CONCRETE WORKS, SILVA ROAD, MANGALORE-576 001. 2. MRS. BESSY PINTO W/O. LATE BASIL ANTONY PINTO, C/O.DENZIL PINTO, AGED ABOUT 75 YEARS, P.O BOX-60859, DUBAI UAE. 3. MRS. FELCITA BAPTISTA W/O. ROBERT BAPTISTA, AGED ABOUT 75 YEARS, R/AT NO.3, MAX BLUE APARTMENTS, ANDHERI KURLA ROAD, R HC-KAR NC: 2026:KHC:8731 WP No. 19749 of 2019 - 2 - MAROL, MUMBAI-400 059. 4. MRS. CRECILDA CHAVAN W/O S.K.CHAVAN, AGED ABOUT 68 YEARS, TIGER STEEL ENGINEERING, P.O.BOX 6169, SHARJAH U.A.E. 5. MR. AVITUS FERNANDES S/O MR. PETER FERNANDES, AGED ABOUT 70 YEARS, WIEFELDICKER, STR:19, 42699, SOLEGEN, GERMANY. 6. GRATAIN FERNANDES S/O MR. PETER FERNANDES, AGED ABOUT 70 YEARS, R/AT 1982, PURCELL WAY, NORTH VANCOOVER, B.C.V & J 3K 3, CANADA. 7. MRS. ELSIE RODRIGUES W/O.FRANCIS RODRIGUES, AGED ABOUT 61 YEARS, ABU DHABI MARINE OPERATIVE COMPANY, POST BOX NO.303, ABU DHUBI, U.A.E. …RESPONDENTS (NOTICE TO R2 TO R7 IS DISPENSED WITH V/O DTD: 17.07.2025) *** THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 20.04.2019 PASSED IN O.S.NO.44 OF 2008 CLUBBED WITH O.S.NO.343 OF 2005 ON THE FILE OF 2ND ADDITIONAL SENIOR CIVIL JUDGE AND CJM MANGALORE AS PER ANNEXURE-A AND PASS NECESSARY HC-KAR NC: 2026:KHC:8731 WP No. 19749 of 2019 - 3 - ORDER BY ALLOWING THE MEMO AS PRAYED FOR AS PER ANENXURE-G. THIS WRIT PETITION COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MS. JUSTICE TARA VITASTA GANJU ORAL ORDER 1. The present petition seeks to challenge an order dated 20.04.2019 passed on a Memo in O.S.No.44/2008 clubbed with O.S.No.343/2005, by the learned II Additional Senior Civil Judge and Chief Judicial Magistrate, Mangaluru, captioned as Annexure-A (hereinafter referred to as the "Impugned Order"). 2. By the Impugned Order, the contention that was raised by the petitioner/defendant No.1 is that he should be permitted to cross-examine the plaintiff after the cross-examination undertaken by defendants No.2 to 6 has been rejected. The learned Trial Court has found that the grounds taken by the petitioner/defendant No.1 were without any merit inasmuch as it was stated before the HC-KAR NC: 2026:KHC:8731 WP No. 19749 of 2019 - 4 - learned Trial Court that his defence would be leaked by conducting the cross-examination earlier. 3. Notice to respondent Nos.2 to 7 has already been dispensed with by an order of this Court dated 17.07.2025. 4. Given the pendency of this matter for the last more than six years and the fact that by an interim order passed by this Court on 26.04.2019, stay of learned Trial Court proceedings was granted which was at the stage of final evidence, this Court deems it apposite to hear and decide the matter today. 5. The learned counsel for the petitioner/defendant No.1 has submitted that the petitioner and the respondents are all family members, being children of one Mr.Peter Fernandez. The family of the petitioner comprises of four brothers and four sisters. HC-KAR NC: 2026:KHC:8731 WP No. 19749 of 2019 - 5 - 5.1. Two Suits were filed inter-se the siblings, first being O.S.No.343/2005, filed seeking partition and rendition of accounts which was filed by respondent No.1 for the suit schedule property [hereinafter referred to as the “First Suit”]. The prayers in this suit and the suit schedule property are set out below: “Prayers: 1.(a) For a relief of partition and division of the plaint A, C, D, E & F schedule properties by metes & bounds with reference to good and bad soil and to grant and allot to the plaintiff 1/8th share in 'A' 'C' 'D' 'E' & 'F' schedule properties and 'B' schedule property in its entirety. This relief is valued at Rs.45,79,108-00 as detailed in the annexed valuation slip and a Court Fee of Rs........./ is paid thereon as Per Section 35(2) of KCF & SV Act. (b) Directing the 1st defendant to render accounts in respect of the business turnover of MCC Works and Pietro Statutory Co Since this Relief is Anciliary to the main relief no court Fee is payable on it. 2. Costs of Lawyer’s reply notice Rs.2,000-00 4. Cost of the suit _____________ Total: Rs.45,81,108-00 And grant such other and further reliefs as deemed fit under the circumstances of the case: SCHEDULE 'A' DESCRIPTION OF THE PROPERTY Agricultural property situated in Navoor Village Bantwal Taluk and comprised in: HC-KAR NC: 2026:KHC:8731 WP No. 19749 of 2019 - 6 - Sy.No. Kissam Extent A-C 123-1 Punja 4-49 134-1 " 0-58 144 " 4-58 185/2A " 0-39 consisting of house bearing D.No.28/1, Cattle Sheds, processing shed and rubber, coconut and aeronaut plantation and other agricultural growth. SCHEDULE 'B' DESCRIPTION OF THE PROPERTY Non-agricultural immovable property situated in Attavar Village, Falnir Ward, within the registration Sub District of Mangalore City Corporation and comprised in: T.S.No. R.S.No. Kissam Extent A-C 591-B1P1 897-B1 Garden 00-11-09 consisting of a house bearing Door.No.17-8-497 Boundaries: North : Silva Road South : Portion of same S.No. East : Seminary compound West : Portion of same S.No. SCHEDULE 'C' DESCRIPTION OF THE PROPERTY Non-agricultural immovable property situated in Attavar Village, Falnir Ward, within the registration Sub District of Mangalore City Corporation and comprised in: T.S.No. R.S.No. Kissam Extent A-C 591-B1 897-B1 Garden 00-28-01 HC-KAR NC: 2026:KHC:8731 WP No. 19749 of 2019 - 7 - consisting of premises bearing Door.No.17-8-498, 499/1 & 500 Boundaries: North : Silva Road South : Lane East : Portion of Seminary compound/portion of Same S.No. West : Property of Mr.Avitus Fernandes Defendant No.5 SCHEDULE 'D' DESCRIPTION OF THE PROPERTY Immovable property situated in Bantwal Mooda Village, Bantwal Taluk, and comprised in: Item No. S.No. Extent A-C 1. 270/2(P4) 0-84.25 2. 249/1B(P1) 0-35.50 1-19.75 SCHEDULE 'E' List of Movables 1. Bank & Post Office Deposits = Rs. 14,38,738-00 2. Gold 40 sovereigns (Bracelets, Chains, rings etc.,)= Rs.1,00,000-00 3. Cash Money = Rs.2,00,000-00 (approx.) 4. Awards ) 5. Paintings ) 6. Photo Albums ) cannot be valued 7. Other Personal) Artifacts 8. Guns-3 rifles & 1 single barrel gun = Rs.1,00,000-00 9. Compensation received From Surrendering the rental property Situated in light house hill road = Rs.14,00,000-00 Total = Rs.32,38,738-00 HC-KAR NC: 2026:KHC:8731 WP No. 19749 of 2019 - 8 - SCHEDULE 'F' Immovable property situated in Mangalore ‘B’ Hobli, Kankanady ‘B’ Village, Mangalore, comprised in Sy.No.43/6A1B1P2, measuring 1-03 Acres, containing buildings.” 5.2. Thereafter, the respondent Nos.2 to 6 before this Court filed a subsequent suit being O.S.No.44/2008 also seeking the prayers of partition and injunction of the Suit Schedule items 1 to 4 [hereinafter referred to as the “Second Suit”] as under: “1. Directing the partition of the properties described in the plaint schedule by way of administration of the estate of the deceased Peter Fernandes and allot land deliver to the plaintiffs their respective share in it. 2. Direct the first and second defendants to render accounting of the income of the plaint schedule property from the date of death of the father till the date of final division and delivery of the share of the Plaintiffs. 3. Grand costs of suit and grant such other and further reliefs." SCHEDULE Item I: Immoveable property situated in Attavara village, in Mangalore City and bearing: T.S.No. R.S.No. Kisam Extent Assessment [Rs. Ps] 591/B1 897/B1 Garden 39.75 cents. 0-41 Containing within the said area, one house bearing D.No.17-8-497, and other premises bearing D No.17-8- HC-KAR NC: 2026:KHC:8731 WP No. 19749 of 2019 - 9 - 498, 499, 499/1, & 500. This property is enclosed by compound wall. Item II: Immoveable property situated in Buntwal Muda village, Buntwal Taluk, and bearing: S.No. Kisam Extent Assessment [Rs. Ps] 270/2P4 dry 84.25 cents 249/1B[P1] dry 35.50 cents Item No.III: Immovable property situated in Navoor village, Buntwal Taluk, and bearing 123/1P6 dry 4.49 acres 1-80 134/1P1 dry 0.58 0-23 144 dry 4.58 1-84 185/2A dry 0.39 0-16 With house bearing D.No.28/1, cattle shed, processing shed, rubber plantation, and other appurtenances thereto. Item IV: Other assets to be accounted for: 1. Bank deposits and post office deposits in the name of Peter Fernandes totaling to Rs.14.38 lacs. 2. Rs.3.5 lacs received by first defendant as compensation for surrendering premises and good will at Hampankatta, Mangalore, held by late Peter Fernandes and where the business was being conducted. 3. Gold jewellery, Cash, gun and several Awards received by late Peter Fernandes. [Approximately valued at Rs.5,00,000/-].” HC-KAR NC: 2026:KHC:8731 WP No. 19749 of 2019 - 10 - 5.3. Since the schedule properties in the two Suits were the same, the Suits were clubbed together by the learned Trial Court. 6. The learned counsel for the petitioner submits that the petitioner is defendant No.1 in both these Suits. It is the case of the petitioner/defendant No.1 that, of the Suit schedule properties which are set out in O.S.No.343/ 2005, only ‘D’ Schedule property is a Joint Family Property, while the remaining properties either do not belong to the joint family or the suit schedule properties or parts thereof were sold, while the father of the parties (owner of the suit schedule properties) was still alive. 6.1. The learned counsel for the petitioner/defendant No.1 further submits that the petitioner/defendant No.1 had filed a memo on 03.04.2019 seeking to cross- examine the plaintiffs after the remaining defendants cross examine them, since the remaining defendants are supporting the case of the respondent No.1. HC-KAR NC: 2026:KHC:8731 WP No. 19749 of 2019 - 11 - 7. The Impugned Order has, however, disallowed the memo filed by the petitioner/defendant No.1. 8. The learned counsel for the petitioner/defendant No.1 further submits that this procedure can be allowed in view of Section 137 of the Evidence Act, 1872 [hereinafter referred to as the “Evidence Act”]. Reliance is placed on the following two judgments of Coordinate Benches of the Delhi High Court and the Gujarat High Court in this behalf: (i) Sarabjit Singh vs. Gurinder Singh Sandhu & Ors.1; (ii) Shah Hiralal Himatlal and Others vs. M.G.Pathak and others2. 9. This Court has examined the pleadings in both the Suits. The prayers in the First Suit [O.S.No.343/2005] are in respect of six properties. The First Suit has been filed 1 2011(121) DRJ 102 2 1963 SCC Online Gujarat 17 HC-KAR NC: 2026:KHC:8731 WP No. 19749 of 2019 - 12 - for partition, mesne profits, declaration and division of suit schedule properties (A) to (F). 10. Although individual written statements have been filed by respondents No.2 to 6, these written statements are pari materia to each other. However, the petitioner/ defendant No.1 has filed his written statement contesting the suit and denying that all the suit schedule properties are available for partition. It is further stated that the suit schedule properties in the Second Suit [O.S.No.44/2008] are also pari materia and overlapping. The petitioner/defendant No.1 has contended that since he is the main contesting party in the matter, he may be permitted to cross-examine the witnesses after the cross- examination of the respondents is concluded. In this manner, the remaining respondents who are not contesting would be able to conduct their cross- examination, if they so deem fit. Reliance, in this behalf is placed on the judgment of the Delhi High Court in the HC-KAR NC: 2026:KHC:8731 WP No. 19749 of 2019 - 13 - case of Sarabjit Singh Vs. Gurinder Singh Sandhu & Ors.3. 11. At this stage, it is apposite to set out Section 137 of the Evidence Act, which reads as follows: "137.Examination-in-chief. The examination of witness by the party who calls him shall be called his examination- in-chief. Cross-examination. –– The examination of a witness by the adverse party shall be called his cross-examination. Re-examination. ––The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.” 12. The Delhi High Court, while examining a contention similar to the one raised here, has relied on the judgment of the High Court of Gujarat and the High Court of Andhra Pradesh, to hold that the order in which a defendant leads evidence becomes important in the case where some defendants support the case of the plaintiff. In those cases, the order of leading evidence, must be that those who support the plaintiff should lead their evidence before those parties who oppose the plaintiff. The relevant extract of Sarabjit Singh’s case is set out below: 3 2011 (121) DRJ 102 HC-KAR NC: 2026:KHC:8731 WP No. 19749 of 2019 - 14 - “10. None of the parties has cited any judgment of the Apex Court on the point which is raised in the instant case, nor have I been able to lay my hand on any such authority. Under these circumstances, one has to fall back on the judgments which have been cited by the learned Counsel for the Plaintiff. Out of the three judgments which have been cited by the learned Counsel for Defendant No. 1, the judgment in Shah Hiralal Himatlal's case (supra)4 is passed by the learned Single Judge of the Gujarat High Court way back in 1964 wherein it has been held as under: (4) So far as the Defendants go, the question which of the Defendants should begin has not been dealt with in Order 18, CPC Code. But on general principle, if any of the Defendants supports 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. The order in which Defendants lead evidence becomes important only when some of them support the case of the Plaintiffs 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. It is only when the Defendants are divided into two groups, one group consisting of the Defendants supporting the Plaintiff's case in part and the other group consisting of Defendants, who do not support the Plaintiff's case in any part that the question of order of leading evidence becomes important. 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 case of the Plaintiff in any part. . . . " [Emphasis Supplied] 4 AIR 1964 Gujarat 26 HC-KAR NC: 2026:KHC:8731 WP No. 19749 of 2019 - 15 - 12.1. In addition, the learned Single Judge of the Delhi High Court in the Sarabjit Singh's case has further held that a similar view has been taken by High Courts of Bombay, Gujarat and Andhra Pradesh while relying on Section 137 of the Evidence Act, in following terms: "…………….A perusal of the aforesaid para of the judgment would show that the said judgment has categorized the Defendants into three essential categories - one who fully support the case of the Plaintiff, secondly the Defendants who partially support the case of the Plaintiff and thirdly those who do not support the case of the Plaintiff or any part. It has been held that they will cross examine the witnesses in the same order. The said judgment in the case of Shah Hiralal Himatlal's case (supra) has been followed by Andhra Pradesh High Court in Hymavathi's case (supra). In 2004, Sunil Chhatrapal's case (supra), the issue was examined by the Bombay High Court again where the reference was made to the two judgments of Gujarat and the Andhra Pradesh High Courts and after discussing both these judgments, the learned Single Judge of Bombay High Court has also arrived at the same conclusion that the party who is fully or partially supporting the case of the Plaintiff must cross examine the witness of the Plaintiff in the first instance as against the party who is contesting the claim of the Plaintiff. Reference has also been made to Section 137 of the Evidence Act which lays down that when the witness is examined by way of examination-in-chief, then he will be cross examined by the "adverse" party. It has been concluded by the Bombay High Court 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. It has been observed that 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 HC-KAR NC: 2026:KHC:8731 WP No. 19749 of 2019 - 16 - filled up, in the cross examination conducted by the Defendants, who are partially or fully supporting the case of the Plaintiff. This will be prejudicial to the interest of the contesting party and therefore it has supported the view of Gujarat High Court as well as the Andhra Pradesh High Court. 11. I have gone through the aforesaid three authorities and I find myself to be in agreement with the reasoning given by the Bombay High Court as well as the Gujarat High Court, so far as the order in which the cross examination of the Plaintiff's witnesses is to be conducted. The reason for such an order is not far to seek. The Hiralal's case has rightly classified the Defendants into three categories - firstly those who are supporting the case of the Plaintiff fully, secondly those who are partially supporting the case of the Plaintiff and thirdly those who are not at all supporting the case of the Plaintiff. The classification of the Defendants in the aforesaid three categories must regulate the cross examination of the Plaintiff's witness. It may be pertinent here to mention that Section 137 of the Evidence Act also lays down that when a witness enters into a witness box, he will be first subjected to examination-in-chief, then cross examination and thereafter re-examination. 12. The Evidence Act clearly lays down that the scope of cross examination is much wider as it permits a party to cross-examine the witness even regarding his character in order to impeach his credibility. Leading questions which are suggestive of answer can also be asked to the witness. Therefore, in such a contingency where the scope of cross examination is much wider and gives better leeway to the Defendant, it cannot be permitted by a party who either fully or partially supports the case of the Plaintiff to cross examine witness after the contesting party has done. If this is permitted to be done, then it will greatly prejudice the rights of the parties who are contesting the claim of the Plaintiff. I therefore find myself in agreement with the judgment of Hiralal's case that the party which supports the case of the Plaintiff partially or fully must cross HC-KAR NC: 2026:KHC:8731 WP No. 19749 of 2019 - 17 - examine the witness of the Plaintiff first. Accordingly, so far as the facts of the present case are concerned, the Defendants No. 3 and 4 are supporting the case of the Plaintiff both partially and fully respectively and therefore they must first cross examine the witness of the Plaintiff first rather than the Defendant No. 1 who is contesting the claim of the Plaintiff. I accordingly allow the contention of the Defendant No. 1 directing Defendant No. 3 and other Defendants to cross examine the Plaintiff's witness in the first instance before the Defendant No. 1 undertakes the cross examination. However, expression of any opinion hereinbefore shall not be deemed to be an expression on the merits of the case.” [Emphasis Supplied] 13. The Impugned Order shows that the learned Trial Court has, however, given a finding that there is no such provision and where there is no conflict of interest, such an opportunity need not be given. It is further held that a condition precedent for giving an opportunity to a defendant to cross-examine a co-respondent is either from the pleading or in the evidence when the conflict arises. 14. This Court is unable to agree. Undisputedly, the respondent No.1/plaintiff has filed a suit for partition, claiming 1/8th share in the suit schedule properties HC-KAR NC: 2026:KHC:8731 WP No. 19749 of 2019 - 18 - against his brothers and sisters being the defendants No.1 to 7 in the suit. The defendants/respondent Nos.2 to 6 have filed Written Statements, supporting the claim of the respondent No.1/plaintiff. Thus, clearly, they have no conflict of interest with the plaintiff. The respondent No.7 has not filed the Written Statement at all. 14.1. The Impugned Order has been passed in the First Suit O.S.No.44/2008. In this suit, as stated above, defendant Nos.2 to 6 have filed separate Written Statements, each of which is pari materia to each other. In addition, other than the petitioner/defendant No.1, no other party is contesting the second suit either. However, the respondent Nos.2 to 6 are partly supporting the case of the plaintiff. Therefore, their interest would not be adverse to that of the respondent No.1/plaintiff. This suit has been clubbed with the First Suit and the matter has been set down for evidence. 15. The judgment in Sarabjit Singh’s case, while relying on Shah Hiralal Himatlal’s case as well as HC-KAR NC: 2026:KHC:8731 WP No. 19749 of 2019 - 19 - Sunil Chhatrapal’s case of the Bombay High Court, has set down that unless the examination/cross-examination is done of a party who either supports the case of the plaintiff fully or partly, he cannot be said to be a party contesting the case of the plaintiff and any lacuna left in the cross-examination by a party will be filled up, if this order is not complied with for the purposes of cross- examination. 16. The learned Trial Court has relied on the judgment of a Co-ordinate bench of this Court in M/s. Ennen Casting Pvt. Ltd. Vs. M.M.Sundaresh5 to pass the Impugned Order. However, the M/s Ennen Casting’s case was with respect to the right of a defendant to cross-examine another defendant. It was held therein that no defendants have a right to cross-examine other defendants. Thus, the issue adjudicated in M/s Ennen castings’ case is distinguishable from the facts of the current case. However, and in any event, this case does not discuss 5 2003(4) KLJ 122 HC-KAR NC: 2026:KHC:8731 WP No. 19749 of 2019 - 20 - restriction of the right of cross-examination by co- defendants. 17. For the reasons stated above, the petition is allowed. The Impugned Order dated 20.04.2019 is set aside. All pending applications stand closed. 18. The parties will appear before the learned Trial Court on the date already fixed (17.03.2026). 19. It is clarified that this Court has not examined the matter on merits and this order has been passed without prejudice to the rights and contentions of all parties. (TARA VITASTA GANJU) JUDGE BMV*/YN List No.: 1 Sl No.: 26 Digitally signed by TARA VITASTA GANJU Location: HIGH COURT OF KARNTAKA