The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 853 OF 2023 Sarita Pani Petitioner Mr. Rajjeet Roy, Advocate …. -versus- Jagat Jivan Pani and others ….
Legal Reasoning
Opp. Parties Mr. Amit Prasad Bose, Advocate (For Opposite Party No.1A) CORAM: JUSTICE K.R. MOHAPATRA Order No. 1.
Decision
ORDER 23.08.2023 1. 2. This matter is taken up through hybrid mode. This CMP has been filed assailing the order dated 10th July, 2023 (Annexure-10) passed by learned Civil Judge (Senior Division), Bhubaneswar in C.S. No. 111 of 2019, whereby an application filed by the Defendant No.1-Petitioner to examine the Plaintiff No.2 as D.W.2, has been rejected. 3. Mr. Roy, learned counsel for the Petitioner submits that the suit has been filed for declaration of gift deed executed by the parents (the Plaintiffs) of Defendant No.1-Petitioner in her favour as null and void and for other consequential relief. During pendency of the suit, father of Defendant No.1- Petitioner (Plaintiff No.1) died and he was substituted by his son (brother of Petitioner-Plaintiff No.1-A). Subsequently, the Plaintiff No.2 filed an application to be transposed as Defendant No.3 in the suit. The said application was rejected and attained its finality. In the present suit, the Plaintiff No.2 has not entered the witness box to lead evidence. In view of the provisions under Order XVI Rule 21 C.P.C., the Defendant No.1-Petitioner is entitled to examine an adverse party as a witness on her Page 1 of 4 // 2 // behalf. In support of his case, he relied upon the decisions in the case of Braja Mohan Patra –v- Ananta Charan Patra and others, reported in AIR 2003 Orissa 209 and Sri Awadh Kishore Singh and another –v- Sri Brij Bihari Singh and others, reported AIR 1993 Patna 122. He also relied upon the decision of this Court in the case of Achyuta Moharana @ Narasingha –v- Nabakishore Moharana and others, reported in 2021 (I) ILR-CUT 229, wherein it is held as under: “8. Although there are divergent views on the issue of examining of a party as witness by another, taking into consideration the aforesaid case laws, I am of the considered view that there cannot be any absolute bar for a party in a suit to be examined as a witness on behalf of another. It is at the discretion of the Court to consider the same in the facts and circumstances of the case to allow or reject a request/prayer made by a party to examine another as a witness in the said suit.” 4. In view of the ratio decided in the aforesaid case law, there is no impediment on the part of the Defendant No.1- Petitioner to examine Plaintiff No.2 as D.W. 2 on her behalf. In fact, the evidence in affidavit under Order XVIII Rule 4 C.P.C. has already been filed and the same is available on record. Learned trial Court on a misconception that the Plaintiff No.2 might be under the undue influence of Defendant No.1, rejected the application. It is also stated that allowing such application will be unethical. Such observations are contrary to the settled law. As such, he prays for setting aside the impugned order under Annexure-10. 5. Mr. Bose, learned counsel for the Opposite Party No.1 submits that the Plaintiff No.2 herself filed a detailed objection Page 2 of 4 // 3 // to the said petition stating that she could not be examined as witness on behalf of Defendant No.1. He, however, submits that there cannot be any dispute to the ratio decided in the aforesaid case law. But the ratio decided therein cannot be made applicable to the case at hand in view of the peculiar facts and circumstances of the case. In the instant case, plaint was filed by the Plaintiffs claiming to set aside the gift deed executed by them in favour of Defendant No.1. The Plaintiff No.2 had opportunity to adduce evidence in the matter, but she did not adduce any evidence. Further, her application to be transposed as Defendant No.3 has already been rejected and attained its finality. In that view of the matter, the Plaintiff No.2 even if summoned to examine as D.W.2 cannot improve upon the case of Defendant No.1 as she cannot propound a new case contrary to the pleadings in the plaint. In the meantime, evidence from the side of the Plaintiffs is closed and Defendant No.1 has examined herself as D.W.1. He, therefore, submits that learned trial Court has committed no error in rejecting the petition to summon the Plaintiff No.2 to be examined as D.W.2. 6. Considering the submissions made by learned counsel for the parties and on perusal of the impugned order, it appears that learned trial Court has not considered the petition keeping in mind the ratio decided in the aforesaid case law. As held in the case of Achyuta Moharana @ Narasingha (supra), a party can be examined as an witness on behalf of another party to the suit. It also appears that the Plaintiff No.1A has not filed any objection to the petition to summon the Plaintiff No.2 to be examined as D.W.2. The Plaintiff No.2 appears to have filed Page 3 of 4 // 4 // objection to the aforesaid petition, but the affidavit has been sworn by the Plaintiff No.1A without disclosing that he was authorized by Plaintiff No.2 to swear the affidavit. Thus, it appears that objection was filed by the Plaintiff No.1A styling it to be an objection filed by the Plaintiff No.2, that too without her authorization. Thus, the said objection cannot be taken into consideration by learned trial Court while adjudicating the petition. These material aspects were lost of by learned trial Court while adjudicating the petition. 7. As such, the impugned order under Annexure-10 is set aside and the matter is remitted to learned Civil Judge (Senior Division), Bhubaneswar to adjudicate the petition to summon the Plaintiff No.2 to be examined as D.W.2 afresh, giving opportunity of hearing to the parties concerned. The Plaintiff No.1A and Plaintiff No.2 may also file their objection to the petition, which shall be considered in accordance with law. Urgent certified copy of this order be granted on proper application. bks (K.R. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Aug-2023 11:20:41 Page 4 of 4