The High Court · 2025
Case Details
Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 17:58:31 IN THE HIGH COURT OF ORISSA AT CUTTACK C.M.P. No.246 of 2025 (In the matter of an application under Article 227 of the Constitution of India) M/s.Adarsh Palace Pvt. Ltd., Bisra Road, Rourkela-1, Dist.- Sundargarh and another …. -versus- Somnath Dwibedi through LRs and others (since dead) …. Petitioners Opposite Parties Advocate(s) appeared in this case:- For Petitioners : Mr. B. Sahoo, Advocate For Opposite Parties : Mr. S. Sahu, Advocate For O.Ps. No.1(a) to 1(h) CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 21st August 2025
Legal Reasoning
B.P. Routray, J. 1. Heard Mr. B. Sahoo, learned Advocate for the Petitioners and Mr. S. Sahu, learned Advocate for the Opposite Parties 1(a) to 1(h). 2. Present C.M.P. is directed against the impugned order dated 11.12.2024 of the learned Civil Judge (Sr. Divn.), Rourkela passed in C.S. No.47 of 2008, wherein the prayer of Defendants 1 to 3 to adduce C.M.P. No.246 of 2025 Page 1 of 9 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 17:58:31 the certified copy of the previous statement of P.W.1 as exhibit has been refused. It needs to be mentioned here that though in the prayer portion of the C.M.P., the orders dated 11.12.2024 and 20.01.2025 are being challenged, but Mr. B. Sahoo, learned counsel for the Petitioner confines his challenge to order dated 11.12.2024 only. 3. Opposite Party being the Plaintiff filed the suit praying for a decree for setting aside Sale Deed No.946 of 2007 in respect of the suit property. In course of hearing of the suit, the Defendants have entered appearance, filed their WS and both parties adduced their respective evidences. After closure of evidence from both sides, the matter was posted for argument and upon completion of argument, it was posted for judgment. At this stage, Defendants 1 to 3 sought to adduce the certified copy of deposition of P.W.1 {Plaintiff 1(b)} given in another pending suit, i.e. C.S. No.60 of 2005. The learned trial court refused such prayer of the Defendants on the ground that there was no pleading of the parties in respect of pendency of the said suit and no such statement made in deposition of P.W.1 in the earlier suit was confronted to P.W.1 in the present suit, and therefore, such prayer of C.M.P. No.246 of 2025 Page 2 of 9 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 17:58:31 the Defendants to admit the earlier deposition of P.W.1 in evidence is not entertained. 4. It is submitted by Mr. B. Sahoo, learned counsel, on behalf of the Petitioner that, confrontation in respect of the previous statement to make the same admitted into evidence is not at all required particularly when same P.W.1 has given his deposition in the present suit as well as in the previous suit. 5. Conversely, Mr. S. Sahu, learned counsel submits for the Plaintiff that, the prayer to adduce certain documents after the argument is over and before pronouncement the judgment is not permissible if unsupported by any explanation for delay. According to him, any such documentary evidence to be adduced by the parties should be before the issues are settled and for such delay in adducing the same, it should be supported by reasons of delay with affidavit. It is further submitted that, the purpose of adducing such previous deposition of P.W.1 with regard to his admission about part partition has already been admitted by P.W.1 in his cross-examination in the present suit. Therefore, the purpose of adducing documentary evidence by the Defendants is not worthy for consideration. C.M.P. No.246 of 2025 Page 3 of 9 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 17:58:31 6. Admittedly the pendency of the earlier suit in C.S. No.60 of 2005 before the same court is not disputed where Plaintiff 1(b) has adduced his evidence as P.W.1. It is true that the present Defendnats 1 to 3 are not the parties in C.S. No.60 of 2005. That suit is within the members of the family of the vender of Defendants 1 to 3. The background of the case is that, the parties have led their evidence and argument was completed. But when the matter was posted for judgment, at that stage a petition was filed by Defendants 1 to 3 to adduce the certified copy of such previous statement of P.W.1 in the present suit. 7. In Bharat Singh and others vs. Mst. Bhagirathi, AIR 1966 SC 405, the Hon’ble Supreme Court has observed that admissions are substantial piece of evidence by themselves and held as follows:- “19. Admissions have to be clear if they are to be used against the person making them. Admissions are substantive evidence by themselves, in view Ss.17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness C.M.P. No.246 of 2025 Page 4 of 9 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 17:58:31 under S. 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence.” 8. In the instant case, as stated earlier, the statement of P.W.1 in the other suit as a witness remains undisputed. Present Defendants, who were not parties in the earlier suit got the certified copy, the said deposition of P.W.1, and prayed to adduce the same in the present suit. Therefore, the question arose whether such statement of witness given in the earlier suit would require for confrontation or not? Here it depends to which part of the statement of the witness the Defendants are relying on for the purpose of evidence on their part. Had it been on the question of admission made by said witness in the earlier suit, the same need not required to be confronted as per the principle propounded in the afore-cited decision. But so far as the other parts are concerned except admission, it is of course requiring confrontation. However, this Court has not at all entering into the merits of the admission of the evidence of said document speaking the deposition of the witness in earlier suit. That is the matter always left open for the C.M.P. No.246 of 2025 Page 5 of 9 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 17:58:31 trial court to consider at appropriate stage. But so far as the prayer to bring the same on record is concerned, it cannot be simply refused on the ground that the statements have not been confronted. Therefore, it would be appropriate to permit the Defendants adduce that certified copy of the earlier deposition of P.W.1 to be brought on record in the present suit whose admissibility in evidence is a question left open for the trial court with regard to contents of the deposition. 9. Here another submission is made on behalf of the Plaintiff- Opposite Parties that, such documentary evidence at the belated stage, i.e. after closure of argument would not be permissible. But this Court does not agree to such submission advanced by the Opposite Parties. 10. In Billa Jagan Mohan Reddy and another vs. Billa Sanjeeva Reddy and others, (1994) 4 SCC 659, it is explained as follows:- “4. Order 13, Rule 1 provides thus: “1. Documentary evidence to be produced at or before the settlement of issues.— (1) The parties or their pleaders shall produce, at or before the settlement of issues, all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has not already been filed in Court, and all documents which the Court has ordered to be produced. C.M.P. No.246 of 2025 Page 6 of 9 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 17:58:31 (2) The Court shall receive the documents so produced: Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.” It is clear from its bare reading that the parties or their counsel shall be required to produce all the documentary evidence in their possession or power which they intend to rely on to establish their right along with pleadings or before settlement of the issues. The court is enjoined under sub-rule (2) to receive such documents provided they are accompanied by an accurate list thereof prepared in the prescribed form. If they are not in the party’s possession or custody, it shall be filed by the party along with an application to condone the delay in filing them. The explanation for delay is not as rigorous as one filed under Section 5 of the Limitation Act. These documents were not in the possession or custody of the appellants, but they have obtained certified copies from the Revenue Authorities and sought to be produced. It is undoubted that there is a delay in production of the said documents. But the trial court had stated that the application was filed at the stage of arguments, seeking to produce those documents and sought to rely upon the documents. It is settled law that, if the documents are found to be relevant to decide the real issue in the controversy, and when the court felt that interest of justice requires that the documents may be received, exercising the power under Order 41, Rule 27 CPC the appellate court would receive the documents and consider their effect thereof. When such is the position, when the documents are sought to be produced in the trial court, before the arguments are completed, normally they C.M.P. No.246 of 2025 Page 7 of 9 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 17:58:31 may be received; an opportunity given to prove them and rebuttal if any and their relevance and effect they may have, be considered in deciding the issues arising in the controversy. Under these circumstances, the trial court was not justified in refusing to condone the delay and to receive the documents. The High Court also committed the same error in not considering the effect in this behalf in the right perspective. The orders are accordingly set aside and the delay in filing the documents is condoned. The trial court is directed to receive the documents, give an opportunity to the parties to prove the documents and if necessary, opportunity to the respondent to rebut the same and then dispose of the reference according to law.” 11. In the case at hand, it is true that the prayer for adducing the documentary evidence have been made at a belated stage, but taking note of the nature of dispute, it cannot strictly be said that the same would not be permissible only for the reason of delay. The prayer of the Defendants even without any explanation for delay can be condoned keeping in view the fact that the Defendants are not parties in the earlier suit and the document is not in their possession. 12. In view of the discussions made above, the prayer of the Petitioner to adduce the certified copy of deposition of P.W.1 as per Annexure-6 is allowed. Learned trial court is directed to bring the same C.M.P. No.246 of 2025 Page 8 of 9 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 17:58:31 on record and consider its admissibility in evidence in accordance with law.
Decision
13. The C.M.P. is accordingly disposed of. (B.P. Routray) Judge B.K. Barik/Secretary C.M.P. No.246 of 2025 Page 9 of 9