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Palia Bewa Vs. Parbati Kumari Mohapatra and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 171 of 1985
Judge
Reported inAIR1986Ori62
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115(1) - Order 1, Rule 10 and 10(5) - Order 18, Rule 17
AppellantPalia Bewa
RespondentParbati Kumari Mohapatra and ors.
Appellant AdvocateG.C. Ram, Adv.
Respondent AdvocateS.K. Dey, Adv.
DispositionRevision dismissed
Cases ReferredBaldevdas 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..........and plaintiff had given her evidence, an application was filed by four, persons to be impleaded as party-defendants claiming that they were vitally interested in the suit and were necessary parties to the suit. the learned munsif by order d/-13-12-1984 allowed the said prayer and added them as defendants 12, 13, 14 and 14/a. thereafter, defendants 12 filed a petition to summon the plaintiff who is p. w. 4 to cross-examine her since her eivdence was over by the time defendant 12 was added as party.the learned munsif on consideration of the said application has allowed the prayer by the impugned order d/- 15-2-1985 which is being challenged in this revision by the plaintiff.3. according to mr. ram, the learned counsel for the plaintiff-petitioner, the plea of defendant 12 is one and the.....
Judgment:
ORDER

G.B. Patnaik, J.

1. Plaintiff is the petitioner challenging the order of the learned Munsif D/- 15-2-1985 allowing the prayer of defendant 12 to recall the plaintiff for cross-examination by him.

2. Plaintiffs suit (T. S. No. 63 of 1984) is one for injunction against defendants 1 to 11 not to put up any construction and interfere with possession of the plaintiff over the disputed property. According to the plaint case, in a partition between father of the plaintiff and his co-sharer (defendant 11), the disputed property fell to, the share of plaintiff's father and he executed a registered deed of gift in favour of the plaintiff. Defendants 10 and 11 without having any right, title or interest over the same have executed sale-deeds in favour of defendants 1 to 9 who are threatening to put up construction and hence plaintiffs suit for injunction.

2A. After the trial began and plaintiff had given her evidence, an application was filed by four, persons to be impleaded as party-defendants claiming that they were vitally interested in the suit and were necessary parties to the suit. The learned Munsif by order D/-13-12-1984 allowed the said prayer and added them as defendants 12, 13, 14 and 14/a. Thereafter, defendants 12 filed a petition to summon the plaintiff who is P. W. 4 to cross-examine her since her eivdence was over by the time defendant 12 was added as party.

The learned Munsif on consideration of the said application has allowed the prayer by the impugned order D/- 15-2-1985 which is being challenged in this revision by the plaintiff.

3. According to Mr. Ram, the learned counsel for the plaintiff-petitioner, the plea of defendant 12 is one and the same as that of defendants 10 and 11 and defendants 1 and 11 having elaborately cross-examined the plaintiff, to permit defendant 12 again to cross-examine the plaintiff would be an undue harassment to the plaintiff and an abuse of the process of law. According to Mr. Ram this step is a mala fide one and is intended to nullify the evidence adduced on behalf of the plaintiff. Mr, Ram relies on the decisions of this Court in the case of Mani Dhal v. Padma Charan Dhal, (1984) 1 Orissa LR 467 : (AIR 1984 Orissa 169), in support of his contention.

3A. Mr. Dey, the learned counsel for the opposite party-defendant 12, however, submits that the order allowing defendant 12 to be impleaded as a party not having been challenged has become final and, therefore, under sub-r. (5) of Rule 10 of Order 1, Civil P. C, the suit must be deemed to have begun against defendant 12 and, therefore, he has all the rights including asking for recalling of the witnesses already examined on behalf of the plaintiff for further cross-examination. He further submits that allowing a witness to be recalled for further cross-examination does not amount to 'any case which has been decided' within the ambit of Section 115(1), Civil P. C., and, therefore, this Civil Revision is not entertainable. On merits, Mr. Dey submits that the plea of defendant 12, as would appear from the written statement filed by him, is something different than the plea advanced by defendants 10 and 11 and in that view of the matter, refusing defendant 12 to cross-examine the plaintiff would amount to negation of his right and would make the order allowing him to be impleaded as a party wholly infructuous.

4. I find sufficient force in ail thecontentions raised by Mr. Dey. So far as thecontention of Mr. Ram is concerned, I findthat the same is not tenable in law since theplea advanced by defendant 12 is somethingdifferent than the plea which had beenadvanced by defendants 10 and 11. Thedecision on which Mr. Ram relies upon has also no application, since in my opinion, the prayer of defendant 12 cannot be dubbed as a mala fide one. Rather, the said prayer is in consonance with his rights as a party-defendant. I, therefore, do not find any substance in the contention of Mr. Ram.

5. Once an order allowing an application under Order 1, Rule 10 of the Code is not challenged, the newly added party has all the rights to defend his case and so far as he is concerned, the cose must be taken to have begun afresh. In that view of the mailer, the limited prayer of defendant 12 to allow him to cross-examine the plaintiff eannot be said to be unjustified or illegal in any manner, particularly in the context of my finding that the plea of defendant 12 in his written statement is not the one and the same as was the plea of defendants 10 and 11. That apart, I find sufficient force in the contention of Mr. Dey on the second point that t he order allowing recalling of the plaintiff for cross-examination will not be 'any case which has been decided'. In the case of Alekh Pradhan v. Bhramar Pal, AIR 1978 Orissa 58, it has been held that by allowing a witness to be examined, no right or obligation of the parties in controversy in the suit is being decided. The learned Judge quoted an observation of the Supreme Court in the case of Baldevdas Shivlal v. Filmistan Distributors, AIR 1970 SC 406 to the effect : -

'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.'

The ratio of the aforesaid decision applies with full force to the impugned order in this case and, therefore, the contention of Mr. Dey is well founded.

6. In the result, therefore, I do not find any merits in this revision which is accordingly dismissed, but in the facts and circumstances there will be no order for costs.


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