Disposed

Mantosh Pradhan v. Jagannath Behera

Orissa HC20 Jun 2024CMP/363/2024

Case brief

AI extract

What is this about?

Trial court rejected recall of Plaintiff/PW-1 for further cross-examination after defence counsel fell ill with hypertension during examination. High Court set aside that order, allowed one more cross-examination date subject to Rs.7,500 cost to plaintiff, to be completed on the fixed date without further adjournment.

What did the court decide?

Order rejecting recall of PW-1 set aside; defendants allowed further cross-examination subject to Rs.7,500/- cost payable within seven days, to be completed on the fixed date.

Mantosh Pradhan Vs Jagannath Behera — Property and Title | Orissa HC (2024)

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Signature Not Verified

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Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA C UTTA CK Date: 21-Jun-2024 15:12:06

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CMP No. 363 of 2024

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Mantosh Pradhan and another

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.... Petitioners

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Mr. Santosh Kumar Kanungo, Advocate

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-versus-

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Jagannath Behera

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…. Opp. Party

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CORAM: JUSTICE K.R. MOHAPATRA

Order No.

ORDER 20.06.2024

This matter is taken up through hybrid mode.

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Order dated 12^th January, 2024 (Annexure-2) passed by learned Civil Judge, Balasore in CS No.212 of 1992 is under challenge in this CMP, whereby an application to recall PW-1 for further cross-examination by Defendant No.1/Petitioner, has been rejected.

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It is submitted by learned counsel for the Petitioners that the suit has been filed for declaration of right, title, interest, recovery of possession as well as permanent injunction. The Plaintiff/PW-1 was examined on 12^th January, 2024. During cross-examination of the Plaintiff by Defendants, their counsel fell ill as he suffered from hypertension and could not crossexamine the witness further. So, he prayed for deferring the cross-examination of Plaintiff/PW-1. But learned trial Court refusing such prayer closed examination of PW-1. Immediately thereafter, an application to recall PW-1 for cross-examination by the Defendants was filed, but the said application was

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Signature Not Verified

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Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA C UTTA CK Date: 21-Jun-2024 15:12:06

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rejected vide order under Annexure-5. Hence, this CMP has been filed.

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3.1 Learned counsel for the Petitioners submits that along with the application, the Petitioners have filed the prescription of the Physician, who was treating learned counsel for the Defendants. The prescription under Annexure-4 clearly shows that the learned counsel had a high blood pressure at 198/118 mgm. Thus, in such a situation, learned counsel for Defendants could not have cross-examined the Plaintiff further. Thus, the application for deferring cross-examination of the Plaintiff was filed and it should have been allowed. Further, when the learned counsel for the Petitioners/Defendants filed an application to recall PW-1 for further cross-examination enclosing the prescription, the same should have been considered favourably. However, learned trial Court taking note of the fact that the suit is of the year 1992 and the learned counsel for Defendants had cross-examined the Plaintiff at length for two hours on the said date, rejected the said petition. He, therefore, submits that the impugned order should be set aside and the Petitioners/Defendants should be given an opportunity to further cross-examine PW-1. He, undertakes that on the date of posting, the Petitioners/Defendants shall not pray for any adjournment.

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Taking note of the submission made by learned counsel for the Petitioners and on perusal of record, it appears that the Plaintiff/PW-1 was examined on 12^th January, 2024. During cross-examination by Defendants, an application was filed for

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Signature Not Verified

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Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA C UTTA CK Date: 21-Jun-2024 15:12:06

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deferring the cross-examination on the ground of illness of learned counsel for Defendants. The prescription of learned counsel for the Defendants indicates that he was suffering from hypertension at 198/118 mgm on 12^th January, 2024. However, the suit is of the year 1992 and at the time the petition for deferring the cross-examination of PW-1 by Defendants was filed, the said witness was cross-examined for two hours. This Court, however, feels that since the learned counsel for Defendants/Petitioners was suffering from hypertension on the date of cross-examination of PW-1, he should be given another opportunity to further cross-examine PW-1. However, the loss, if any, suffered by the Plaintiff can be compensated by adequate cost.

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In view of the above, this Court sets aside the order under Annexure-5 and directs that learned trial Court should allow the Defendants to further cross-examine PW-1 on a date to be fixed by it subject to payment of cost of Rs.7,500/-(rupees seven thousand five hundred only) to the Plaintiff within a period of seven days hence.

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5.1 It is made clear that further cross-examination of PW-1 shall be completed on the date to be fixed by learned trial Court. If for any reason, the Defendants fail to cross-examine the PW1 further on the date fixed, the Court shall proceed with the matter without giving any further opportunity to Defendants for the aforesaid purpose.

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The CMP is disposed of accordingly.

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Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA C UTTA CK Date: 21-Jun-2024 15:12:06

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Since the CMP is disposed of without issuing notice to the Plaintiff/Opposite Party, he would be at liberty to seek for variation of this order, if he feels aggrieved.

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Issue urgent certified copy of the order on proper application.

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(K.R. Mohapatra) Judge

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s.s.satapathy

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Mantosh Pradhan v. Jagannath Behera

Case brief

What is this about?

What did the court decide?

Mantosh Pradhan v. Jagannath Behera

Case brief

What is this about?

What did the court decide?

What the court decided

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