Orissa High Court
Sudam Sahoo vs District Judge Cuttack And Others on 11 January, 2016
Equivalent citations: AIR 2016 ORISSA 38, (2016) 159 ALLINDCAS 773 (ORI), (2016) 1 ORISSA LR 240, (2016) 1 CURCC 647, (2016) 4 CIVILCOURTC 436, (2016) 1 CLR 628 (ORI), (2016) 122 CUT LT 429
Author: Biswanath Rath
Bench: Biswanath Rath
ORISSA HIGH COURT, CUTTACK
O.J.C. No. 11935 of 1998
In the matter of an application under Articles 226 & 227 of the Constitution of
India.
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Sudam Sahoo ... ... ... Petitioner
-versus-
District Judge, Cuttack & others ... ... ... Opp. Parties
For petitioner : M/s. Mr. S.K. Dash, S.K. Mishra,
B. Mohapatra and C.S. Dash.
For opp. Party : Mr. Bibekananda Bhuyan
(O.P.5)
M/s. D. Satpathy, (O.P.3)
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PRESENT:
THE HONOURABLE MR. JUSTICE BISWANATH RATH
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Date of Hearing: 04.01.2016 Date of Judgment: 11.01.2016
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Biswanath Rath, J.This writ petition has been filed assailing the impugned orders under Annexures-3 and 4 passed by the learned Civil Judge (Senior Division), Second Additional Court, Cuttack as well as the District Judge, Cuttack in the matter of an application at the instance of the plaintiff debarring defendant no.3 to cross- examine the witness of defendant no.1 and consequently to delete the cross- examination already recorded on behalf of defendant no.3.
2. The short fact involved in the case is that petitioner as plaintiff filed Title Suit No.591 of 1990 praying therein for a decree with a declaration to the effect that Registered Sale Deed No.4679 dated 8.11.1989 executed by opposite party no.3 in favour of opposite party no.5 as void and inoperative in the eye of law. After filing of the written statement separately by opposite party nos.3 and 2 5, trial was commenced. During evidence, the opposite party no.3 i.e. defendant no.1 examined his power of attorney selling his share in favour of opposite party no.5 (the defendant No.3 in the court below) involving a sale deed sought for declaring as bad. After the examination-in-chief of D.W.1 is over finding the trial court permitting the defendant no.3 i.e. Opposite party no.5 to cross examine the D.W.1, the plaintiff / petitioner filed a petition seeking a direction from the trial court debarring the opposite party no.5 i.e. defendant no.3 from cross examining the of D.W.1. The said petition was heard by the trial court and the trial court after considering the contention of the plaintiff as well as the contesting defendant no.3 - present opposite party no.5 by order dated 27.11.1997 even though appreciated the contentions of the petitioner, but while disposing the application by the impugned order allowed the defendant no.3 to put question to the witnesses converted the portion already recorded in cross-examination, as chief at the instance of defendant no.3. Being aggrieved by the said order, the petitioner preferred Civil Revision No.164 of 1997. The revisional authority disposed the revision dismissing the same.
3. In assailing the impugned orders vide Annexures-3 and 4, Sri Dash, learned counsel appearing for the petitioner contended that since defendant no.3 is the purchaser of the property belonging to defendant no.1 by virtue of a power of attorney from the defendant no.1 and having filed a written statement in the line of the written statement of defendant no.1, there was no adversary between defendant no.1 as well as defendant no.3 and it is in this context, urged that the courts below have not only failed to appreciate the above factual background of the case vis-à-vis 3 considering the claim of the defendant no.3 for cross-examination of D.W.1 also failed in appreciating the provisions contained in Section 138 of the Indian Evidence Act, 1872. Sri Dash, learned counsel also contended that both the courts below have failed to appreciate the judgments so cited by the plaintiff in both the courts below in the case of Hussens Hasanali Pulavwala v. Sabbirbhai Hasanali Pulavwala & others, A.I.R. 1981 Gujarat 190 and it is under the circumstances contended that both the courts below passed the impugned orders not only contrary to the provisions in the Code of Civil Procedure but also otherwise contrary to the settled position of the land.
4. Per contra, Sri B.Bhuyan, learned counsel appearing for the defendant no.3, the present opposite party no.5 contended that even though the opposite party no.5 is the purchaser of the disputed land by virtue of Registered Sale Deed No. 4679 dated 8.11.1989, the opposite party no.3 in chief examination of D.W.1 failing to refer to the Registered Sale Deed, the defendant no.3 had a right to cross-examine the D.W.1 for establishing the Registered Sale Deed dated 8.11.1989. Further, in view of the provision contained in Section 138 of the Indian Evidence Act, 1872, since the plaintiff has a right of cross-examination, it would be better if the plaintiff cross- examine the D.W.1 after the D.W.1 is being cross-examined by the D.W.3. Sri Bhuyan, learned counsel also further contended that under the above circumstances and the provision of law, there is no harm in allowing the defendant no.3 to examine the D.W.1 ahead of cross-examination of the D.W.1 and under the circumstances, Sri Bhuyan, learned counsel for the opposite party no.5 contended that 4 the courts below have not committed any error of law. Consequently, there is no scope in interfering in the impugned order.
5. Undisputed fact involved in the case remains that the petitioner is the plaintiff and the opposite party no.5 is the defendant no.3 in a suit for declaring the Registered Sale Deed No. 4679 dated 8.11.1989 executed by opposite party no.3 in favour of opposite party no.5 as void one and inoperative in the eye of law. There is also no dispute that the opposite party no.3 has sold the particular property by virtue of the above registered sale deed through the power of attorney under examination as D.W.1. There is also no dispute that there is no adversity in between the opposite party no.3 and opposite party no.5 involving the claim of the plaintiff. Perusal of the written statements filed by both the parties also makes it clear that the stand of both these above opposite parties runs parallel. Further, undisputed fact remains is that after the closure of the chief of the opposite party no.1 by the defendant no.1, the trial court having allowing the defendant no.3 to cross-examine the defendant no.1, the plaintiff filed a petition for debarring the defendant no.3 from cross-examination of D.W.1.
6. Perusal of the impugned order of the trial court clearly reveals that the trial court considering the application at the instance of the plaintiff, even though appreciated the stand taken by the petitioner but by the impugned order vide Annexure-3 while permitting defendant no.3 from putting questions to D.W.1 has further directed to treat the evidence recorded through defendant no.3 by way of cross examination as chief through defendant no.3. The questions, therefore, now fall to be decided are that (1) If the 5 defendant no,.3 is entitled to cross-examine the D.W.1? and (2) If the Defendant no.3 is entitled to examine the D.W.1 ahead of D.W.1 is being cross-examined by the contesting plaintiff and defendants.
Now coming to decide the question no. 1. On perusal of the impugned order vide Annexure-3, this Court finds that upon realising the point raised by the plaintiff, the trial court by the impugned order directed not to treat the recorded portion through defendant no.3 as cross-examination but to treat the same as examination on behalf of defendant no.3. Now, therefore, it is clear that the trial court by impugned order in no means is permitting the defendant no.3 to cross-examine the D.W.1. Now coming to answer on the question no.2, it is first required to go through the provisions of the Indian Evidence Act, 1872 to find out as to what is the order of examination. For this purpose, it is relevant here to refer to the provisions contained in Sections 137 and 138 of the Indian Evidence Act, 1872.
Section 137 and 138 of the Indian Evidence Act, 1872 reads as follows:
"137.
Examination-in-chief The examination of a witness by the party who calls him shall be called his examination-in-chief. Cross-examination.
The examination of a witness by the adverse party shall be called his cross-examination.
Re-examination.
The examination of a witness, subsequent to the cross- examination by the party who called him, shall be called his re- examination.
Order of examinations
138. Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.
The examination and cross-examination must relate to relevant facts but the cross-examination need not be 6 confined to the facts to which the witness testified on his examination-in-chief"
Reading of the Section 137 of the Indian Evidence Act, makes it clear that the first step is the examination of a witness by the party who calls him, which is called as examination-in- chief and the next step is cross-examination of a witness already put to examination-in-chief by the adverse party and after the examination- in-chief and the cross-examination is over, there is scope for reexamination of a witness on being called for by a party subsequent to cross-examination by the party, who had called him. If we look to the provision contained in Section 138 of the Indian Evidence Act, this provision makes it clear that a witness shall be first examined in chief (then if the adverse party so desires) cross- examined, then (if a party calling him so desires) re-examined. A conjoint reading of both the above provisions make it clear that there are three stages of examination of a witness i.e. (1) examination in chief, (2) cross-examination by the adversary party and (3) re-examination by the party, who had called such a witness after the cross-examination and, therefore, there is no scope for additional cross-examination or re-examination by a party, who is not adverse to the person, who has examined any such witnesses. Therefore, not only there is no scope for the defendant no.3 to cross-examine the D.W.1 but there is also no scope for the defendant no.3 being not a adverse party to the Defendant no.1 to re-examine the D.W.1. As the provision of re-examination only entitles a person for re-examination of a witness by whom the witness has been called, this Court finds both the courts have miserably failed to appreciate the above aspect and thus arrived at 7 the wrong and erroneous impugned orders. Both the Courts below also failed to appreciate the decision reported in AIR 1981 Gujarat -
190.
7. Under the circumstances, this Court observes that both the courts have failed to appreciate the provisions of order of examination as well as the scope of re-examination or cross- examination by a party of a particular witness and, therefore, the order of the trial court even treating the statements recorded through defendant no.3 as chief-examination of defendant no.3, is also unwarranted, being contrary to the provisions of Sections 137 and 138 of the Indian Evidence Act, 1872. Consequently, the Revisional order vide Annexure-4 also becomes bad. In the result, this Court while allowing the writ petition, sets aside the orders of the courts below vide Annexures-3 and 4 and thereby allow the application of the plaintiff-petitioner for debarring defendant no.3 from cross- examination or examination-in-chief the D.W.1. 8 Since the suit is of the year 1990, this Court directs the trial court to dispose of T.S.No.591 of 1990 consequently re-numbered as 944-94 within a period of four months from the date of this judgment.
9. The writ petition stands allowed but however, there is no order as to cost.
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BISWANATH RATH, J.
Orissa High Court, Cuttack.
The 11thday of January, 2016/sks.