Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.20528 of 2013 ====================================================== Baidyanath Sah S/O Late Jangli Sah Resident Of Mohalla - Shamsherganj, P.S. Town, District - Darbhanga Versus .... .... Petitioner/s 1. Baiju Prasad @ Baiju Patwa son of late Rameshwar Prasad Khendelwal, Resident Of Mohalla - Shamsherganj, P.O. Lalganj, P.S. Town, District – Darbhanga 2. Kedar Prasad Khandelwal. 3. Haridwar Prasad Khandelwal ……..Respondent Both 2 and 3 are sons of Raghunandal Pd. Khandelwal, resident of Mohalla Shamsherganj, P.S. Town, Distt. Darbhanga. ……..Proposed Intervenors…...Respondents ====================================================== Appearance : For the Petitioner/s : For the Respondent/s : ======================================================
Legal Reasoning
CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL ORDER 4 09-12-2013 Heard learned counsel for the petitioner. Though the case has been listed today for consideration of Interlocutory Application No. 7361 of 2013, which has been filed seeking interim stay of the order impugned in the writ petition, but on the prayer of learned counsel for the petitioner, the main writ application is being heard on merit.
Decision
The writ petition under Article 227 of the Constitution Patna High Court CWJC No.20528 of 2013 (4) dt.09-12-2013 2/5 of India is directed against the order dated 06.08.2013 passed in Probate Case No. 6 of 2005 / Title (Probate) Suit No. 5 of 2009 by the Ad hoc Additional District Judge-4, Darbhanga by which, on the application filed by the respondents no. 2 and 3, he had allowed the said respondents to cross-examine all witnesses within a span of five days upon depositing Rs. 500/- (Five hundred) as cost. Learned counsel for the petitioner has raised three objections with regard to the impugned order. Firstly, it is submitted that at the behest of stranger, the witnesses cannot be cross-examined after their recall. Learned counsel has relied on Section 137 of the Indian Evidence Act, 1872 in which it is stipulated that the cross-examination of a witness shall be done by the adverse party and since the respondents no. 2 and 3 have not been made party, there cannot be an order for cross-examination at their behest. Secondly, he submits that under Order XVIII Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘Code’), the Court may recall a witness but only for its own purpose to clear any doubt or ambiguity. It is submitted that the same cannot be done at the behest of a stranger. Thirdly, he has submitted that the application was filed belated by the respondents no. 2 and 3 only at the fag end of the proceeding with a view to Patna High Court CWJC No.20528 of 2013 (4) dt.09-12-2013 3/5 delay the disposal of the case. Upon hearing learned counsel for the petitioner, this Court finds that the submissions are misplaced. Firstly, the order impugned dated 06.08.2013 cannot be looked in isolation for the simple reason that earlier on 29.11.2010, on the intervention petition filed by the respondents no. 2 and 3, an order was passed in which the following has been recorded :- “……………the present application by the proposed intervenor which has come at the verge of closure of the case of the plaintiff is allowed only to the extent to ascertain relating to the genuineness and due execution of the will said to have executed by the testator.” Thus, from the same, it is obvious that the respondents no. 2 and 3 were allowed to become intervenors, though for a limited purpose only, i.e., for ascertaining the genuineness and execution of the will. It would be relevant to indicate here that the said order dated 29.11.2010 has attained finality not having been challenged. The subsequent order dated 06.08.2013, which is impugned herein, has in fact only implemented the order dated 29.11.2010 and reasons have been assigned. The Court itself noticing that the case is very old and needs to be expedited rapidly, for the ends of justice has allowed the respondents no. 2 and 3 to cross-examine all witnesses but has given them only five Patna High Court CWJC No.20528 of 2013 (4) dt.09-12-2013 4/5 days and also after depositing a cost of Rs. 500/-. Even the next five dates were fixed i.e., 13th, 14th, 15th, 16th and 17th August, 2013. Thus, it cannot be said that by passing such order, there would be further delay in disposal of the case. As far as the challenge by the petitioner to the status of the respondents no. 2 and 3 to maintain such application, the same is also are erroneous for the simple reason that by order dated 29.11.2010 their application for intervention was allowed, even though for a limited purpose, and the subsequent order dated 06.08.2013 has in no way enlarged the scope of the original order dated 29.11.2010. The objection of learned counsel for the petitioner that under Order XVIII Rule 17 of the Code, the Court can only for its own purpose recall any witness, is equally misplaced for the reason that in the present case the Court was only trying to give effect to its earlier order dated 29.11.2010 and there is nothing in the impugned order to indicate that a fresh and original order was being passed with regard to the stand of the respondents no. 2 and 3. From the impugned order, it is clear that the Court has proceeded to hold that the matter being old and to expedite it rapidly and also in the interest of justice the respondents no. 2 and 3 have been allowed to cross-examine all witnesses. From the aforesaid discussions, this Court does not Patna High Court CWJC No.20528 of 2013 (4) dt.09-12-2013 5/5 find that the impugned order suffers from any irregularity to warrant interference. Accordingly, the application stands dismissed. However, the Court below is directed to ensure that the order for allowing the respondents no. 2 and 3 to cross-examine all witnesses is implemented expeditiously by fixing fresh consecutive dates, as was fixed earlier in the impugned order, since the dates fixed earlier have now passed. The Court shall proceed to conclude the matter without being prejudiced by any observation made in this order, which has only been done for deciding the correctness of the order impugned. The parties shall have full liberty to place their case in the suit which shall be decided on its own merits in accordance with law. (Ahsanuddin Amanullah, J.) Anjani/-