High Court of Orissa
Case Details
Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 04-Apr-2024 13:15:05 HIGH COURT OF ORISSA: CUTTACK W.P.(C) NO.17772 OF 2012 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950) ******* Basanta Kumar Pradhan … Petitioner -versus- Gati Krushna Rout and others … Opposite Parties
Legal Reasoning
Mr. Arun Kumar Das, Advocate For Opp. Party : Mr. M. Balkrishna Rao, Advocate CORAM: JUSTICE KRUSHNA RAM MOHAPATRA
Decision
------------------------------------------------------------------------------- Heard and Disposed of on 03.04.2024 ------------------------------------------------------------------------------ JUDGMENT K.R. Mohapatra, J.- 1. 2. This matter is taken up through hybrid mode. Petitioner in this writ petition seeks to assail the order dated 6th September, 2012 (Annexure-5) passed by learned Civil Judge, (Senior Division), Dhenkanal in CS No.11 of 2007, whereby an application filed under Section 138 of the Indian Evidence Act, 1872 (for brevity ‘the Act’) for re-examination of the D.W.2, namely, Kirti Chandra Rout has, been allowed. 3. Mr. Das, learned counsel for the Plaintiff-Petitioner submits that the suit has been filed claiming title through adverse possession W.P.(C). No.17772 of 2012 Page 1 of 5 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 04-Apr-2024 13:15:05 // 2 // over the suit property and for other consequential relief. During cross- examination of D.W.2 by Defendants Nos.10 to 14, he deposed as under: I have no claim over “10. the residential house constructed by the Plaintiff and his brother over the Plot No.762 under Khata No.4. It is not a fact that I am stating falsehood in the Court.” 4. Thereafter, Defendant No.2 filed an application to recall the D.W.2 for re-examination to clarify the statement made at para-10 of his deposition. The said application has been allowed relying upon the case of Rammi @ Rameshwar vrs. State of MP, reported in AIR 1999 SC 3544. Learned trial Court erroneously held that there is no bar to recall a witness for re-examination for clarification of any ambiguity in the deposition of a witness during cross examination. 5. It is further submitted that a witness cannot be recalled to patch up the lacuna in his deposition during examination/cross- examination. Learned trial Court failed to appreciate the same and passed the impugned order. Hence, the impugned order under Annexure-5 is not sustainable and is liable to be set aside. 6. Mr. Rao, learned counsel for the Defendant-Opposite Party No.2 submits that in the meantime, Defendant-Opposite Party No.1 has died. He further submitted that there is no bar under law to recall a witness for re-examination to explain the statement made during his examination/cross-examination to remove the ambiguity and to clarify the situation. He also relied upon the case of Rammi @ Rameshwar (supra), which reads as under: “16. The very purpose of re-examination is to explain matters which have been brought down in cross-examination. Section 138 of the Evidence Act outlines the amplitude of re-examination. It reads thus: W.P.(C). No.17772 of 2012 Page 2 of 5 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 04-Apr-2024 13:15:05 // 3 // X X “138- X Direction of re-examination.—The re-examination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter.” X 17. There is an erroneous impression that re-examination should be confined to clarification of ambiguities which have been brought down in cross-examination. No doubt, ambiguities can be resolved through re-examination. But that is not the only function of the re-examination. If the party who called the witness feels that explanation is required for any matter referred to in cross-examination he has the liberty to put any question in re- examination to get the explanation. The Public Prosecutor should formulate his questions for that purpose. Explanation may be required either when the ambiguity remains regarding any answer elicited during cross-examination or even otherwise. If the Public Prosecutor feels that certain answers require more elucidation from the witness he has the freedom and the right to put such questions as he deems necessary for that purpose, subject of course to the control of the court in accordance with the other provisions. But the court cannot direct him to confine his questions to ambiguities alone which arose in cross- examination.” 7. In the cross examination made by Defendant Nos.10 to 14, the D.W.2 in a confusion stated that he had no claim over the house constructed by the Plaintiff and by his brother. The said statement was inadvertent one and without understanding the question, put to the witness. As such, an application to recall D.W.2 for re-examination was filed. Thus, learned trial Court has committed no error in allowing such petition. Since the Plaintiff claims title through adverse possession over the suit property, the deposition of the D.W.2 carries a weight in deciding the issue. As such, learned trial Court in exercise of his discretion under Section 151 CPC, has allowed the application which should not be interfered with. 8. Taking note of the submission made by learned counsel for the parties and the petition under Annexure-3 filed to recall the witness, namely, D.W.2, it is clear that Defendant No.2 wants to take away W.P.(C). No.17772 of 2012 Page 3 of 5 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 04-Apr-2024 13:15:05 // 4 // certain statement made during cross-examination. The tenor of the petition under Annexure-3 made it clear that the deposition of D.W.2 at para-10 was allegedly inadvertent one and without understanding the question, he answered the same. For ready reference, the averment made in Annexure-3 is quoted hereunder: “1- That during the cross examination of the D.W.-2 Kirti Chandra Rout inadvertently some mistakes crept in as to standing structure over the suit plot while suggested by the counsel of the defendant No-10.5uch statement of D.W.-2 we unintentional being the D.W.-2 hovering an impression that the suggested plot is the own plot of plaintiff which lies adjacent to the suit plot .…” In view of the above, it is clear that by recalling D.W.2, 9. Defendant No.2 wants to take away the statement of D.W.2 made at para-10 of his deposition. 10. Section 138 of the Act permits reexamination of witnesses but it cannot be exercised to the extent of taking away the effect/withdraw any statement made during examination/cross-examination of a witnesses. The tenor of the petition under Annexure-3 makes it clear that it is not filed to clarify any ambiguity in the statement of the D.W.2. But, it is made only to withdraw the statement made at para-10 of his deposition, which is not permissible in law. 11. In view of the discussions made above, the case law in Rammi @ Rameshwar (supra) is not applicable to the instant case. 12. Accordingly, the impugned order under Annexure-5, being not sustainable, is set aside. Since the suit is of the year 2007, learned trial Court should make an endeavour to see that it is disposed of at an early date in accordance with law. 13. The parties are directed to cooperate with learned trial Court for early disposal of the suit. W.P.(C). No.17772 of 2012 Page 4 of 5 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 04-Apr-2024 13:15:05 // 5 // 14. The interim order dated 18th October, 2012 passed in Misc. Case No.15397 of 2012 stands vacated. Urgent certified copy of this judgment be granted on proper application. (K.R. Mohapatra) Judge High Court of Orissa, Cuttack Dated 3rd March, 2024/Rojalin W.P.(C). No.17772 of 2012 Page 5 of 5