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Alekh Pradhan and ors. Vs. Bhramar Pal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 385 of 1977
Judge
Reported inAIR1978Ori58; 45(1978)CLT75
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 18, Rule 2(4); Code of Civil Procedure (CPC) (Amendment) Act, 1976
AppellantAlekh Pradhan and ors.
RespondentBhramar Pal and anr.
Appellant AdvocateA. Das and ;M.S. Panda, Advs.
Respondent AdvocateB. Pal, ;N. Prusty and ;A. Mohanty, Advs.
DispositionRevision dismissed
Cases Referred(Baldevdas Shivlal v. Filmistan Distributors
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........that petition it mentioned in the order sheet that the plaintiffs were at liberty to take cut a private commissioner for the above purpose and may submit bis report in court within two days. the plaintiffs thereafter took a pleader-surveyor for the measurement of the disputed area, and his report was submitted on 12-9-77 within the extended period allowed by the court. on 15-9-77 the plaintiffs filed a petition to enable them to examine that survey-knowing advocate in that suit. the court by the impugned order has -allowed the said petition,2. mr. das, the learned counsel for the petitioners contends that the court, after rejecting the prayer of the plaintiffs on 6-9-77 for directing a survey-knowing commissioner to measure the disputed area, could not have allowed the plaintiffs to.....
Judgment:
ORDER

S. Acharya, J.

1. The impugned order enables the plaintiffs, opposite parties in this case, to examine a pleader-surveyor as plaintiffs' witness whose survey report has already been filed in the court below. On 2-9-77 when the suit was part-heard and adjourned to 6-9-77 for examining witnesses, the plaintiffs filed 5 petition praying lor deputing a survey-knowing Commissioner to measure the disputed area. A copy of that petition had been served on the defendants, the petitioner in this case. That petition could not be disposed of on that day and was taken up for consideration on 6-9-77. On 6-9-77 the court, examined further witnesses for the plaintiffs, but rejected the said petition. While rejecting that petition it mentioned in the order sheet that the plaintiffs were at liberty to take cut a private Commissioner for the above purpose and may submit bis report In court within two days. The plaintiffs thereafter took a pleader-surveyor for the measurement of the disputed area, and his report was submitted on 12-9-77 within the extended period allowed by the court. On 15-9-77 the plaintiffs filed a petition to enable them to examine that survey-knowing advocate in that suit. The court by the impugned order has -allowed the said petition,

2. Mr. Das, the learned counsel for the petitioners contends that the court, after rejecting the prayer of the plaintiffs on 6-9-77 for directing a survey-knowing Commissioner to measure the disputed area, could not have allowed the plaintiffs to examine the private pleader-survey or at this stage of the suit. Mr. Das further states that the court acted illegally in asking the plaintiffs to take a private Commissioner to measure the disputed area after rejecting the plaintiffs' previous application dated 2-9-77 for appointing a survey-knowing Commissioner for that work. It is incorrect to state that the court below at eny point of time asked the platintiffs totake a private Commissioner in this case. While rejecting the aforesaid petition dated 2-9-77 of the plaintiffs for appointment of a survey-knowing Commissioner by the court, the court merely observed that the plaintiffs were at liberty to take a private Commissioner for that purpose. Therefore, the court never asked or gave any direction to the plaintiffs in this matter. After the pleader-surveyor did the measurement, his report was submitted in the court and after the submission of the said report the plaintiffs made a prayer to the court to allow the said pleader-surve-yor to be examined as a witness on behalf of the plaintiffs. The court on a consideration of the facts and circumstances of the case as mentioned in the impugned order has allowed the said prayer. In this Civil Revision against the said order [ have at first to see if the court was legally competent and had the jurisdiction to pass the said order or notSub-rule (4) of Rule 2 of Order XVIII in the amended Civil P. C. is as follows :--

'Notwithstanding anything contained in this rule, the Court may, for reasons to be recorded, direct or permit any party to examine any witness at any stage.'

Previous to this, Rule 2 of Order XVIII, C.P.C as it stood amended by this Court was as follows :--

'Explanation :-- Nothing in this rule shall affect the jurisdiction of the Court to direct any party to examine any witness at any stage, for reasons to be recorded by the court in writing.'

From the above provision it is quite evident that the court has the jurisdiction to direct or permit any party to examine any witness at any stage. So, the court was legally competent and acted within its jurisdiction to pass the impugned order.

3. Mr. Das contends that the court was not legally justified in allowing the plaintiffs to examine this witness after rejecting the plaintiffs' prayer to appoint a court surveyor for that work and after closing the hearing of the case on 6-9-77. ft appears from the order sheet of the suit that the court did not entertain the plaintiffs' prayer to appoint a court surveyor for the job at that time as it considered that by doing so the disposal of the old suit would be very much delayed, while rejecting that (prayer it merely expressed that the plaintiffs might get that work done by a private Commis-sioner if they so desired within only avery few days allowed by the Court. So whatever order on this matter was passed on 6-9-77 was, as I find, actuated by a desire to dispose of the old suit within a short time. So one cannot question the legality of the said order, nor does the order appear so patently improper as to require interference in revision on assessment of facts in a matter purely within the legal competence and discretion of the court

4. Moreover, it is incorrect to say that on 6-9-77 the hearing of the suit was completely closed for all intents and purposes. The order of that date shows that the court enabled the plaintiffs to submit the private surveyor's report if they so desired, within, the short time fixed by it. After the filing of the surveyor's report in court on 12-9-77, on the petition of the plaintiffs the impugned order was passed. As per Sub-rule (4) of Rule 2 of Order XVIII, C.P.C. quoted above, the court has the power and jurisdiction to direct or permit any party to examine any witness at any stage. ''At any stage' of course would mean any stage previ-ous to the delivery of the judgment in the case, whereafter the court loses seisin over the suit. So, as per the said provision, till the passing of the judg-ment in the matter a court has thej power and jurisdiction to allow any witness to be examined in a case. In the impugned order, the court has stated the reasons which impelled it to allow the plaintiffs petition to examine the private pleader-surveyor as a witness for the plaintiffs. The reasons stated in that connection do not appear to be patently incorrect, improper or illegal. Therefore. the court had the discretion and it acted within its jurisdiction to pass the impugned order .allowing examination of the surveyor as a witness for the plaintiffs.

5. On the above considerations I do not see any compelling reason to quash the said order in this Civil Revision. It, of course, goes without saying that the petitioners in this revision must be given, if they so desire, an opportunity by the court below to meet and challenge the said report and the deposition of the surveyor if he is ultimately examined in the court below.

6. Mr. Pal at the outset contended that this Civil Revision was not maintainable as by the impugned order the court has not decided any right or obligation of the parties in controversy in this suit.

The expression 'any case which has been decided' in Section 115, C.P.C. has been explained in the Explanation attached to that section which is as follows :--

'Explanation :-- In this section, the expression 'any case which has been decided' includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.'

In the decision reported in AIR 1970 SC 406 (Baldevdas Shivlal v. Filmistan Distributors) it has been held that every order of the court in course of a suit does not amount to 'a case decided'. In this connection it has been said that (at p. 410) :--

'A case may be said to be decided if the court adjudicates for the purpose of the suit some right or obligation of the parties in controversy; every order in the suit cannot be regarded as a case decided within the meaning of Section 115, C.P.C.'

By the impugned order, no right or obligation of the parties in controversy in the suit has been decided. That being so, the abovementioned contention of Mr. Pal appears to be well founded.

The Civil Revision is accordingly dismissed with costs.


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