High Court · 2012

Heard Mr. Y.S. Mannan, learned counsel appearing for the petitioners as well as Mr. A.S. Nizamuddin, learned State counsel appearing for the respondents . This is a petition under Article 227 of the Constitution of India agains t the order dated 27.05.2011 passed in Title Suit No.260/2007 by the learned Mun siff No.2, Karimganj, allowing the defendants/respondents to cross-examine the P W-1 after the evidence was closed. From the impugned order dated 27.05.2011 that opportunity of cross-exami ning the PW-1 was considered on two grounds such as the learned counsel for the defendants stated that due to inadvertence, he failed to cross-examine the PW-1, who is the most vital witness for the plaintiffs and on another amazing ground as taken by the learned Civil Judge is that the learned counsel for the defendan ts being a senior most member of the Bar admitted his fault. On the basis of the se two grounds, the cross-objection of PW-1 was reopened on the basis of a petit ion filed by the defendants on 07.02.2011, where at paragraph 4 the following av erments were attached: (cid:28)4. s seal and signature on 13.8.10 as fixed for cross examination of P.W.1 but beca use of his inadvertent action the cross examination was not held. For which he m ay be excused; otherwise the right and interest of the State will be badly affec ted as the suit is for a declaration that the suit land is not the Govt. khas la nd of the State and not path of the public and the map & chitta in respect of th e suit land is illegal, collusive and not in conformity with physical spot and i s liable to be cancelled. (cid:29) That the petitioner has rightly taken step by filing his hazira under hi In response to the petition the present petitioners being the plaintiffs in the suit, filed a written objection on 10.05.2011 stating inter alia that th e defendants had failed to show any reasonable cause which prevented them from e xamining the PW-1 on 13.08.2010. According to the plaintiffs/petitioners due to latches and negligence on the part of the defendants, they preferred not to exam ine the PW-1 on 13.08.2010 and the order dated 13.08.2010 did not suffer from an y illegality or material irregularity warranting review of that order. Most impo rtantly they asserted in the objection that the petitioners herein did not even throw any challenge to that order dated 13.08.2010. I have heard the learned counsel appearing for the State respondents as well. He submits that unless the cross-examination as directed is allowed to tak e place, the defendants would suffer irretrievable loss. The learned counsel app earing for the petitioners relying a decision of the Supreme Court in B.V. Smith a Rani Vs. M.K. Girish as reported in (2009)17 SCC 660 submits that the said dec ision has great bearing in the case. In that decision, the Apex Court in paragra ph 4, 5 and 6 discussed the law and those are reproduced hereunder: (cid:28)4. In furtherance of the High Court’s directive, the Family Court fixed the next date as 7-11-2006 for cross-examination of the appellant, but the responde nt did not avail that opportunity. On the next two dates also, the respondent’s counsel did not cross-examine the appellant. Instead, an application was filed o n behalf of the respondent for amendment of the written statement, which was dis missed on 11-1-2007. Simultaneously, the Family Court closed the evidence of the respondent and fixed the case for arguments. Application filed on behalf of the respondent for recall of that order was dismissed on 23-1-2007 and the petition filed by the appellant was decreed on 22-2-2007. On an appeal preferred by the respondent, the High Court remanded the case to the Family Court with the direct ion to give final opportunity to cross-examine the appellant (PW 1) and to adduc e his evidence. That order has been challenged in this appeal. 5. Having heard the learned counsel for the appellant and perused the recor ds, we are convinced that the High Court was not justified in remitting the matt er to the Family Court with a direction to give final opportunity to the respond ent to cross-examine the appellant and to adduce his evidence.

6. The premise on which the High Court passed the impugned order, namely, n on-grant of adequate opportunity to the respondent to cross-examine the appellan t and adduce his evidence is clearly erroneous, because, as mentioned above, aft er disposal of Writ Petition No.1031 of 2006 filed by the respondent, the Family Court fixed the case on three different dates for cross-examination of the appe llant, but the respondent did not avail that opportunity. In this view of the ma tter, the Family Court had pronounced the judgment and the High Court committed serious error by remitting the matter for giving further opportunity to the resp ondent to cross-examine the appellant and adduce his evidence. (cid:29) Ultimately, on the basis of the discussion made at paragraphs 4, 5 and 6 of the said judgment, the Hon’ble Supreme Court interfered with the order passe d by the High Court and set aside the order of the High Court which allowed the cross-examination. The Apex Court remanded the matter to dispose of on merit wit hout giving any opportunity of cross-examination but affording the opportunity o f hearing to the parties. Two important salient features those have emerged from the pleadings and counter pleadings as well as from the submission of the learned counsel is that whether without projecting any challenge against the order dated 13.08.2010 mea ning thereby without any prayer for review of the said order, the prayer as allo wed can be maintained or the Court on the other hand without such prayer can rev iew its order under Section 114 of the CPC. It transpires that there is no such prayer for review of the order. Apart that it is quite unintelligible under what authority the learned Civil Judge had allowed that opportunity of cross-examina tion to the defendants after closing the evidence. The impugned order stands con trary to the provisions as laid down in Order 18 of the CPC. Only in exceptional cases the Court alone can recall a witness as provided under Rule 17 of Order 1 8 of the CPC. That situation is also amply delineated. The Court may at any stag e of a suit recall any witness who has been examined and may subject to the law of evidence for the time being in force put such question to him as the Court th inks fit. On aggregate assessment of the Apex Court judgment and the provisions as cited, this Court is of the view that the impugned order is bad in law and un sustainable. The impugned order is interfered with and set aside. The learned Munsiff No.2, Karimganj, shall resume the argument where the same was left within a period of 15(fifteen) days from the date of receipt of t his order by giving appropriate notice to the learned counsel appearing for the parties and dispose of the suit as per provisions of law. With this observation and direction, the revision petition stands allowe d.