Pushpendra Singh Bhati, J. - (1.) The petitioners have preferred this writ petition for the following reliefs:- "a) by an appropriate writ, order or direction the order impugned order dated 07.03.2017 (Annex.6) passed by the learned District Judge, Udaipur in Case No. 173/11 may kindly be quashed and set aside and the application under Section 137 and 138 of Indian Evidence Act file by the present petitioners may kindly be allowed in toto. b) Any other writ, order or direction which is deemed just and proper by the Hon'ble Court in the facts and circumstances of the case may also be passed in favour of the petitioners. c) Cost of the writ petition may kindly be awarded in favour of the petitioners."
(2.) The facts as noticed by the Court are that a dispute arose on account of respondent no. 2 entering into an agreement to sell the property in-question to the respondent no. 1 while being the power of attorney holder of respondent no. 3. It is being claimed by the petitioners that they are having registered sale-deed of the property in-question in their favour. The respondent no. 1 is claiming execution of the agreement to sell. The petitioners moved an application under Section 137 and 138 of Indian Evidence Act on 19.1.2017 for cross-examining witness Damodar Lal Joshi, who was examined on 20.12.2016 vide Annex.3. Counsel for the petitioners further stated that through the witness Damodar Lal Joshi was produced by the respondent no. 3 Moda, but since he has deposed adverse to their cause, therefore, the petitioners were having a right to cross-examine him by invoking the powers under Section 137 and 138 of Indian Evidence Act. Section 137 and 138 of Indian Evidence Act reads as follows:- "137. Examination-in-chief - The examination of a 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. 138. Order of examination - Witnesses shall be first examined in chief then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. The examination and cross-examination must relate to the relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. Direction of re-examination - The re-examination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter."
(3.) Learned counsel for the respondents has opposed the same on the count of the fact that Section 137 and 138 of Indian Evidence Act clearly provide that cross-examination can be permitted only only by the party adverse to which evidence is to be brought on record. Learned counsel for the respondent further averred that the petitioners are co-defendants along with respondent no. 3, who purchased it from respondent no. 3 and are in the same shoe in which the respondent no. 3 is contesting the case.;