Allowed

Akuli Ch.Das v. Sangram Keshari Patr

Orissa HC16 Mar 2016CMP/128/2014

Case brief

AI extract

What is this about?

This court dismissed the challenge regarding the admissibility of a witness examined without prior permission but directed the recall of the witness for cross-examination by the petitioner and expeditious consideration of the petition under Order 7 Rule 11 CPC.

What did the court decide?

Directing PW-1 to be recalled for cross-examination by defendant No.1 and directing expeditious consideration of the petition under Order 7 Rule 11 CPC.

16.03.2016 Order dated 13.11.2013 passed by the learned Civil Judge (Senior Division), Kendrapara in CS No.449 of 2004 is under challenge in this CMP. 2. Grievance of defendant No.1 (petitioner herein) is that the plaintiff without taking p ermission of the Court below as required under Order 18 Rule 3-A of CPC examined PW-1, namely, Bikram Keshari Patra as witness, who is not a party to the suit before the examination of the plaintiff himself. He contends that defendant No.1 has also filed a petition under Order 7 Ru le 11(b), CPC, which was not taken into consideration before the trial began. The Court below without recording any reason to examine said PW-1 before any party to the suit is examined has recorded the evidence of PW-1, which is prejudicial to his case. Thus, he prays for setting a side of the impugned order and seeks direction to the learned Court below to proceed in accord ance with law.

3. Mr.Das, learned counsel for the plaintiff/opposite party No.1, on the other hand, subm its that in fact an application for permission under Order 18 Rule 3-A, CPC was filed to exami ne other witnesses prior to the plaintiff. A copy of the said petition produced in Court throu gh a memo which is taken on record. Hence, the Court has rightly permitted the plaintiff to ex amine said Bikram Keshari Patra as PW-1. There is no illegality in it. He further submits that a copy of the petition under Order 7 Rule 11, CPC was served on the plaintiff on the day, the PW-1 was examined. Thus, it could not been taken up for disposal on that date. Further, the p etition under Order 7 Rule 11, CPC can be taken up at any stage of the suit, even after commen cement of trial. In view of this, the CMP merits no consideration and hence the

same is liable to be dismissed. 4. Mr. Mohanty, learned counsel for the petitioner submits that a copy of the petition fo r permission to allow other witnesses before the plaintiff alleged to have been filed on 13.11 .2013, has not been served on defendant No.1. It might be a subsequent creation to patch up th e lacunae. Thus, no weightage should be given to the petition alleged to have been filed seeki ng permission. 5. Heard learned counsel for the parties. It is apparent that after examination of PW-1 i n chief, defendants 2, 3, 11 and 12 have also cross-examined the said witness and the defendan t No.1 declined to cross-examine him for which PW-1 was discharged. Subsequently, on that date , defendant No.1 filed an application to recall PW-1 for cross-examination, which is pending c onsideration.

6. Taking into consideration the facts and circumstances of the case, this Court feels th at a liberty should be given to the defendant No.1 for cross-examination of PW-1 for the inter est of justice. In that view of the matter, the CMP is disposed of with a direction that PW-1 should be recalled for cross-examination by defendant No.1 on production of certified copy of this order. For the ends of justice, it is further directed that the petition under Order 7 Ru le 11, CPC filed by defendant No.1 should be considered expeditiously. 7. With the aforesaid observation and direction, CMP is disposed of. Issue urgent certified copy of the order on proper application.

Akuli Ch.Das v. Sangram Keshari Patr

Case brief

What is this about?

What did the court decide?

Akuli Ch.Das v. Sangram Keshari Patr

Case brief

What is this about?

What did the court decide?

What the court decided

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