The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 19-Sep-2024 13:17:35 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 106 OF 2023 Saudamini Sahoo and another …. Petitioners Pakei Sahoo and others …. Opp. Parties Mr. Banshidhar Baug, Advocate -versus-
Legal Reasoning
Mr. Niranjan Prasad Patra, Advocate (For Opp. Party No.1) CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 18.09.2024 4. 1. This matter is taken up through hybrid mode. 2. The Petitioners in this CMP seek to assail the order dated 21st December, 2022 (Annexure-5) passed in Civil Suit No.291 of 2012, whereby learned 1st Additional Civil Judge (Senior Division), Cuttack allowed an application filed by the Plaintiff- Opposite Party No.1 under Order XVI Rule 1(2), Rule 14 read with Order XVIII Rule 2 CPC seeking for a relief to summon one, Pravakar Sahoo, S/o-Krushna Sahoo as a witness through Court and to produce the original Sale Deed No.2904 dated 15th May, 1976 and to give evidence. 3. Mr. Baug, learned counsel submits that Defendant Nos.1 and 2 are the Petitioners in this CMP. The suit has been filed by the Plaintiff-Opposite Party No.1 for declaration of right, title, interest and possession basing upon the sale deed under Ext.5 and the sale deed of her vendor under Ext.4. In the plaint, the Plaintiff had alleged that the sale deed dated 15th May, 1976 was handed over to Pravakar Sahoo, the husband of Defendant No.1 Page 1 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 19-Sep-2024 13:17:35 by one, Musi Sahoo to be produced in the consolidation operation. Certified copy of the sale deed has been admitted as Ext.4. Defendant Nos.1 and 2 in their written statement stoutly denied the same. In spite of the same, the Plaintiff had filed an application to call for the document from said Pravakar Sahoo, husband of Defendant No.1 and to summon him to be examined as a witness. The said application was not pursued. After closure of evidence from both the sides, when the matter was posted for argument, the aforesaid application was filed. It is his submission that Order XVI Rule 1(1) CPC clearly stipulates that on or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce document and obtain summon to such persons for their attendance in Court. Sub-rule (2) of Order XVI Rule 1 CPC clearly stipulates that a party desirous of obtaining any summon for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned. In the instant case, the petition under Annexure-3 was filed after closure of evidence from both the sides. No reason has been assigned therein as to why such an application was not filed earlier. Learned trial Court although referred to the provision under Order XVI Rules 1(1)&(2) CPC, but without assigning any good reason, allowed the application. Hence, this CMP has been filed. Page 2 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 19-Sep-2024 13:17:35 4. It is further submitted that when Defendant Nos.1 and 2 have specifically denied that the said document is not available with the husband of Defendant No.1, namely, Pravakar Sahoo, no purpose would be served by summoning said Pravakar Sahoo and to examine him as a witness. He, therefore, prays for setting aside the impugned order under Annexure-5. 5. Mr. Patra, learned counsel appearing for the contesting Opposite Party No.1-Plaintiff defended the order under Annexure-5 submitting that since it is specifically denied by Defendant Nos.1 and 2 in their written statement that the document is not available with Pravakar Sahoo, then they should have examined him as a witness in support of their plea. They having not done so, the Plaintiff-Opposite Party No.1 was constrained to file the application under Annexure-3, as stated above. Learned trial Court discussing the rival cases of the parties, passed the impugned order, which warrants no interference. 6. Taking note of the submissions made by learned counsel for the parties, this Court finds that the application to summon one, Pravakar Sahoo to appear in Court as a witness and to produce the original Sale Deed No.2904 dated 15th May, 1976 was filed after closure of evidence from both the sides. No reason has been assigned as to why such an application was not filed at the stage prescribed under Order XVI Rule 1 CPC. It is submitted by Mr. Baug, learned counsel for the Petitioners that similar such application was filed earlier. But, it was not moved. No reason has been assigned by the Plaintiff-Opposite Party Page 3 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 19-Sep-2024 13:17:35 No.1 as to why such application, if filed earlier, was not moved. Further, the certified copy of Registered Sale Deed has been admitted in evidence as Ext.4. Thus, it is not clear as to why original sale deed is required to be produced. 7. In view of the clear provision under Order XVI Rules 1(1) & (2) CPC, an application to summon a witness and to produce document cannot be entertained unless specific reason to that effect is assigned. Learned trial Court appears to have overlooked the provision under Order XVI Rules 1(1) &(2) CPC while adjudicating the matter. 8. Since the petition was filed after closure of evidence from both the sides and no reason has been assigned as to why such an application was not filed earlier, more particularly, at a stage specified under Order XVI Rule 1(1) CPC, the impugned order under Annexure-5 is not sustainable and is accordingly set aside. 9. Since the suit is of the year, 2012, learned trial Court should make an endeavour for early disposal of the suit. 10. With the aforesaid observation and direction, the CMP is disposed of. 11. Interim order dated 10th February, 2023 passed in I.A. No.109 of 2023 stands vacated. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 4 of 4