Orissa High Court
Kamalakanta Parida & Another vs Sri Saroj Badan Parida & Others ...... ... on 9 October, 2012
Equivalent citations: 2013 AIR CC 682 (ORI), (2013) 126 ALLINDCAS 416 (ORI), AIR 2013 (NOC) (SUPP) 491 (ORI.), (2013) 1 ORISSA LR 412, (2013) 1 CLR 598 (ORI)
Author: M.M. Das
Bench: M.M. Das
ORISSA HIGH COURT: CUTTACK.
W.P.(C). No. 14653 OF 2011
In the matter of an application under Articles 226 and 227 of the
Constitution of India
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Kamalakanta Parida & another ...... Petitioners
-Versus-
Sri Saroj Badan Parida & others ...... Opp. parties
For Petitioners : M/s. Dayananda Mohapatra,
M. Mohapatra, G.R. Mohapatra &
L.K. Nanda.
For opp. parties : M/s. Ranjan Kumar Rout &
P.K. Mishra (Caveator)
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Decided on 09.10.2012
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PRESENT :
THE HONOURABLE SHRI JUSTICE M.M. DAS
M. M. DAS, J.Order under Annexure - 3 to the writ application passed by the learned Civil Judge (Senior Division), Bhadrak, in Probate Case No.20 of 2008/401 of 2009 allowing an application under Order - 18, Rule - 16 CPC filed by the petitioners in the said Probate Case to examine one of the witnesses, namely, Benudhar Pati before recording the evidence of the other witnesses, is under challenge.
2. When a partition suit was proceeding between the parties, an amendment was sought for, consequent upon a 2 probate proceeding being filed to the writ application, was filed before this Court in connection with the said amendment petition registered as W.P.(C) No.17001 of 2009 by the present petitioners, which was disposed of by this Court by order dated 01.11.2010 directing the learned trial court to dispose of the application for amendment filed by the plaintiff within a period of two weeks. It was further directed that in the event, the amendment is allowed, the learned trial court shall try the partition suit as well as the Probate Misc. Case together, as both the cases involve a cover issue. In the meanwhile, the petition for amendment of the plaint was allowed.
3. While the matter stood thus, the petitioners, in the probate proceeding, filed an application under Order - 18, Rule
- 16 CPC seeking examination of one Sri Benudhar Pati, who is allegedly a witness to the Will sought to be probated on the ground that he is aged about 85 years and may expire at any moment and his evidence is very much essential to prove the Will inasmuch as, if the said witness is not examined before commencement of hearing of the proceeding, the petitioners in the Probate Misc. Case, will suffer irreparable injury. The present petitioners, who are the opposite parties in the said Probate Case, filed an objection to the said application, inter alia, denying the allegations made in the petition by specifically stating that the said Benudhar Pati is not a witness to the Will 3 nor he is aged about 85 years and there is no probability of his expiring and non-examination of the said Benudhar Pati will not cause irreparable injury to the petitioners, i.e., the opposite parties herein. It was further averred in the objection that stamp duty has not been paid in the probate case. Property involved in the Will has been valued at a very low amount and the applicant is attempting to avoid payment of stamp duty. The learned trial court, on the said application, under Order - 18, Rule - 16 CPC, passed the following order on 20.04.2011 :-
"Advocate for the Both parties files their respective hazira. Advocate for the petitioner files documents as per list. Copy served petition on dtd. 8.8.11 is put up. Heard from the Ld. Counsel for the both parties. Perused the record and objection filed by the parties. Advocate for the O.Ps. vehemently objected in their objection. As the witness of the petitioner Sri Benudhar Pati is on the point of death, his recording of the evidence is necessary otherwise filing of case will be infructuous. Considering the facts and circumstances, I am inclined to allow the petition filed by the petitioner. Put up on 26.4.2011 for recording of evidence of Benudhar Pati. Parties to get ready"
4. Mr. Dayananda Mohapatra, learned counsel for the petitioners brings to the notice of the Court that the impugned order is ex facie unsustainable, in view of the fact that the court, while considering the application under Order - 18, Rule - 16 CPC, has to record sufficient reasons for its satisfaction to form the basis for allowing such an application, which is in departure of the usual procedure prescribed under the Code, inasmuch as, only by considering the age factor of a person and without considering as to whether the said person is a necessary witness 4 to be examined in the case and/or to be examined for any other sufficient cause, cannot mechanically pass the order, without assigning any reason whatsoever for exercising jurisdiction under the said provision, as has been done in the instant case and, therefore, the impugned order is clearly unsustainable and liable to be set aside.
5. Learned counsel for the opposite parties, who have entered as Caveators in the case, on the other hand, relies upon a decision of the Bombay High Court in the case of Daulat Jehangir Mehta v. Piloo Dadabhoy Broacha and others reported in 2005 (1) Bom. C.R. 618. In the said case, the Bombay High Court has categorically held that Order - 18, Rule
- 16 CPC of the Code deals with the power of the Court to examine witnesses without waiting for the suit to reach the state of recording evidence of the parties. Sub-rule (1) thereof provides that where witnesses about to leave the jurisdiction of the Court or other sufficient causes are shown to the satisfaction of the Court as to why his evidence should be taken immediately, the Court may, upon the application of any party or of the witness, at any time after the institution of the suit, take the evidence of such witness in manner provided in the Code. The Bombay High Court further held in the said case that non-availability of a person at the time, when the suit will be ripe for recording of evidence of the parties after framing of the issues, could be a 5 justifiable ground for recording the statement of such person, even without waiting for the stage of recording evidence in the suit. With regard to non-availability of a person, the said High Court observed that it could be for various reasons, including the reason that the person may go beyond the jurisdiction of the Court and it may be difficult if not impossible to secure his presence before the Court at a later stage and there can be various other reasons including old age coupled with serious illness. However, the said High Court categorically laid down in the said case that the party applying for the same, has to make out a case for exercise of such power by the Court and the order should be a reasoned order. The Court has to exercise its discretion in this regard judiciously.
6. Mr. Dayananda Mohapatra, learned counsel for the petitioners relies upon the decision in the case of Ajay Kumar Bhargava v. Vishnu Kumar Bhargava reported in 1997 (1) RLR 742 of the Rajasthan High Court. In the said case, the Rajasthan High Court was dealing with an application filed under Order - 18, Rule - 16 CPC in a probate proceeding. Quoting the provisions of Order - 18, Rule - 16 CPC and examining the impugned order, the said High Court, interpreted the expression "other sufficient cause" occurring in Order - 18, Rule - 16 (1) CPC and held that the expression "sufficient cause" implies presence of legal and adequate reason. The word 6 "sufficient" means "adequate", "enough", "as much as may be necessary to answer the purpose intended". It was further held that the said expression embarrasses not more than that, which provides a plentitude, which, done, suffices to accomplish the purpose intended in the light of the existing circumstances and when viewed from reasonable standard of practical and cautious men. In the facts of the said case, the Rajasthan High Court, finding no adequate reason for immediate examination of the witness sought to be examined in the said case, set aside the order passed by the learned trial court.
7. It would be profitable to quote the provisions of Order - 18, Rule - 16 CPC for better appreciation of the contentions raised before this Court, which is as follows :-
"16. Power to examine witness immediately.-
(1) Where a witness is about to leave the jurisdiction of the Court, or other sufficient cause is shown to the satisfaction of the Court why his evidence should be taken immediately, the Court may, upon the application of any party or of the witness, at any time after the institution of the suit, take the evidence of such witness in manner hereinbefore provided.
(2) Where such evidence is not taken forthwith and in the presence of the parties, such notice as the Court thinks sufficient, of the day fixed for the examination, shall be given to the parties.
(3) The evidence so taken shall be read over to the witness, and, if he admits it to be correct, shall be signed by him, and the Judge shall, if necessary, correct the same, and shall sign it, and it may then be read at any hearing of the suit".7
8. The above provision is unambiguous and clearly provides that on fulfillment of any of the two conditions, jurisdiction under the said provision can be exercised, the first being where the witness sought to be examined is about to leave the jurisdiction of the Court and the second is where sufficient cause is shown to the satisfaction of the Court with regard to his or her immediate examination.
9. In the facts of the present case, fulfillment of the first condition does not arise, as the opposite parties, in their application under Order - 18, Rule - 16 CPC, have not made out any case that the said Benudhar Pati is about to leave the jurisdiction of the Court. Therefore, the petition was clearly based on the second condition.
10. The Court, in order to find out as to whether the second condition is fulfilled in a given case, has to record his satisfaction that sufficient cause exists for examining a witness immediately and such sufficient cause must be shown to be existing by the applicant.
11. From the impugned order, as quoted above, it would be clear that the learned trial court has assigned absolutely no reason as to in what manner, the evidence of the said witness Benudhar Pati is relevant for just decision of the probate case and, if he is not examined immediately, there will be no scope for examining such witness by the petitioners at a later stage except 8 stating that the said Benudhar Pati is on the point of death, which fact was not supported by any material, such as, medical documents etc. produced before him. The learned court has also not given any reason in support of his finding that the said case will become infructuous for non-examination of the said witness while allowing the prayer made under Order - 18, Rule - 16 CPC. It is seen that the second condition as enumerated above is also not satisfied.
12. This Court, therefore, is of the view that the wide discretion vested on the Court to exercise jurisdiction under Order - 18, Rule - 16 CPC, which is required to be exercised with circumspection and subject to satisfaction in a judicious manner and not just for asking of the same and the learned trial court has not done so while passing the impugned order, for which, the said order is unsustainable and the same is accordingly quashed.
13. The writ application stands allowed. All pending Misc. Cases stand disposed of.
The interim order passed earlier stands vacated.
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M.M. Das, J.
Orissa High Court, Cuttack.
October 9th, 2012/Subha.
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