The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Feb-2024 19:16:42 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO.1474 OF 2023 Rupakanta Sahu …. Petitioner Ms. Sradha Das, Advocate Basanta Manjari Samal …. Opp. Party -versus- Order No. 03. 1. 2. CORAM:
Decision
JUSTICE K.R. MOHAPATRA ORDER 12.02.2024 This matter is taken up through hybrid mode. Order dated 16th November, 2023 (Annexure-1) passed by learned Civil Judge (Senior Division), Malkangiri in CS No.40 of 2011 is under challenge in this CMP, whereby the Defendants are directed to file show cause for not complying with the order dated 12th October, 2023 passed by learned District Judge, Malkangiri in CRP No.05 of 2023. 3. Ms. Das, learned counsel for the Petitioner submits that in course of the trial, the Plaintiff-Opposite Party filed Exhibits 4, 5, 8 and 8-. On verification, the Defendant No.1-Petitioner found that there are lots of discrepancies in the aforesaid sale deeds. Hence, an application to call for the originals of the sale deeds was filed by the Defendant No.1 and the Defendant also prayed to recall P.W.1 for further cross-examination on the aforesaid sale deeds. The said application was rejected vide order dated 8th August, 2023. Assailing the same, the Defendant No.1-Petitioner filed CRP No.05 of 2023, which was disposed of vide order dated 12th October, 2023 with the aforesaid direction: “The revision petition in C.R.P. 05 of 2023 is allowed on contest against the Respondent without cost. The order passed by the learned Senior Civil Judge, Page 1 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Feb-2024 19:16:42 // 2 // Malkangiri in C.S.40/2011 on dt.08.08.2023 is hereby set aside. The learned Senior Civil Judge, Malkangiri is directed to allow the petitioners (defendants of C.S. No.40/2011) to further cross examine P.W.1 on recall subject to filing cost of Rs.1,500/- (Rupees One Thousand Five Hundred) only, which will be paid to P.W.I as witness cost. The defendants are directed to submit the limited questions which they want to put to plaintiff (P.W.1) and the questions are subject to approval of the learned trial court. The learned Senior Civil Judge, Malkangiri is also directed to call for the original case record in G.R.06/2009 along with its connected documents pending before the court of learned S.D.J.M., Malkangiri before fixing the case for further cross-examination of P.W.1 on recall. Further, this is a suit of the year 2011 so, the learned Senior Civil Judge, Malkangiri is directed to conclude the trial by the end of 4th Quarter, 2023 positively.” 4. Accordingly, the Petitioner filed questionnaires (Twenty in numbers) to be put to P.W.1 during his cross-examination on recall. Learned trial Court rejected the same vide order dated 16th November, 2023 holding that “the same are not questions and are in affirmative sentences without having any negative sentences and any question mark and as such the defendants did not carry out the direction imparted by Hon’ble District Judge in the order dated 12th October, 2023 in CRP No.05 of 2023 in letter and spirit.” 5. As such, learned trial Court directed to submit the show cause in affidavit as to why necessary order shall not be passed against him in accordance with law for their willful disobedience of the direction made by learned District Judge, Malkangiri in CRP No.05 of 2023. Assailing the same, the CMP has been filed. 6. Ms. Das, learned counsel for the Petitioner submits that direction of learned District Judge, Malkangiri was complied with in its letters and spirit. Cross examination should not always be in the questionnaire form. Leading questions may also be put to the Page 2 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Feb-2024 19:16:42 // 3 // witness in cross examination. When a leading question is put, it will be in the form of affirmative sentences and not in the form of questionnaire. Thus, no exception should have been taken to the same by learned trial Court. But, learned trial Court failed to appreciate the same and passed the impugned order. Hence, the same is liable to be dismissed. 7. Considering the submission made by learned counsel for the Petitioner, this Court is of the considered opinion that although a revision was not maintainable against the order dated 8th August, 2023, but learned District Judge, Malkangiri entertained the same and directed as above. In obedience of the said direction, the Petitioner filed twenty questionnaires to be put to P.W.1 on Exhibits 4, 5, 8 and 8-. The said questionnaires are in affirmative sentences, which were taken exception by the learned trial Court. 8. Leading questions can be put to a witness (even on recall) in cross examination. But the same is subject to the compliance of the Order XVIII Rule 17 CPC. Learned trial Court should not have taken exception to the questionnaires filed stating that it is in affirmative sentences and not in interrogatory form. Since learned District Judge, Malkangiri has directed to put limited questions on the Exhibits 4, 5, 8 and 8-, learned trial Court is required to see as to whether the questionnaires are confined to those documents or not. Learned trial Court should not have taken exception to the form of questions stating that it is in affirmative sentences. On recall, the questions as would be thought fit by the Court can only be asked. Hence, this Court is of the considered opinion that learned trial Court has committed an error in taking exception of the form of the questionnaires and asking for show cause for non-compliance of the direction of learned District Judge, Malkangiri. Hence, the Page 3 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Feb-2024 19:16:42 // 4 // impugned order dated 16th November, 2023 (Annexure-1) is not sustainable and is set aside. 9. The matter is remitted to learned Senior Civil Judge, Malkangiri to consider the questionnaires afresh without taking exception to its form (questionnaires). 10. Accordingly, the CMP is allowed to the aforesaid extent. Urgent certified copy of this order be granted on proper application. Rojalin (K.R. Mohapatra) Judge Page 4 of 4