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Paramananda Fateshingh and ors. Vs. Labanya Bewa and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 113 of 1978
Judge
Reported inAIR1979Ori132
ActsCode of Civil Procedure (CPC) , 1908 - Order 18, Rule 3A
AppellantParamananda Fateshingh and ors.
RespondentLabanya Bewa and ors.
Appellant AdvocateR.C. Patnaik and ;P.K. Misra, Advs.
Respondent AdvocateDevananda Misra and ;Deepak Misra, Advs.
DispositionRevision allowed
Excerpt:
.....of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v..........were examined on 23-2-1978. on that date defendant no. 2 was not present and so he could not be examined as a witness. of course no petition to enable this defendant to be examined on a subsequent date was filed. on the next day i.e. on 24-2-78, when 3 other witnesses on behalf of the defendants were to be examined andwere actually examined, a petition on behalf of the defendants was filed to enable defendant no. 2 to be examined as a witness in this case on a later date, as he, due to unavoidable reasons could not come to the court on that date. the court below dismissed the said petition on taking a very strict and conservative view of rule 3-a of order 18, c.p.c. hence this revision.3. in maguni dei's case (1978-45 cut lt 356) : (air 1978 orissa 228 april part) a division bench of.....
Judgment:
ORDER

S. Acharya, J.

1. Defendants 1 and 2 to O.S. No. 159/72 in the court of the Munsif, Khurda, have preferred this revision against the order of the trial court rejecting their prayer to examine defendant No. 2 on 27-2-1978 as a witness in the suit.

2. The hearing of the suit started on 20-2-1978. For the first time the witness for the defendants were examined on 23-2-1978. On that date defendant No. 2 was not present and so he could not be examined as a witness. Of course no petition to enable this defendant to be examined on a subsequent date was filed. On the next day i.e. on 24-2-78, when 3 other witnesses on behalf of the defendants were to be examined andwere actually examined, a petition on behalf of the defendants was filed to enable defendant No. 2 to be examined as a witness in this case on a later date, as he, due to unavoidable reasons could not come to the court on that date. The court below dismissed the said petition on taking a very strict and conservative view of Rule 3-A of Order 18, C.P.C. Hence this revision.

3. In Maguni Dei's case (1978-45 Cut LT 356) : (AIR 1978 Orissa 228 April part) a Division Bench of this Court has held that the court can examine a party at a later stage if it considers the evidence essential despite some negligence on the part of a party. The observations made in that decision and the law laid down therein with regard to this rule should be perused by the courts in disposing of matters of this nature.

4. The hearing of the case started only on 20-2-1978 and the witnesses for the defendants were examined for the first time on 23-2-78. On the next date, i.e. on 24-2-78, a petition to enable defendant No. 2 to be examined as a witness in the suit was filed. In that petition it was stated that defendant No. 2 could not be examined on the due date as on 23-2-78 he had gone to Nayagarh for filling up his application forms to appear at the B. A. examination. Averments to that effect and to the effect that he actually submitted that application in the Nayagarh College on 23-2-78, on affidavit, have been made in this revision petition. Defendant No. 2 claims to be the adopted son of plaintiff No. 1, which averment is contested by the plaintiffs. Issue No. 3 is--'Whether the defendant No. 2 is the adopted son of the husband of plaintiff No. 1?'. In the petition for allowing defendant No. 2 to be examined as a witness in this case it is stated that defendant No. 2 is mainly contesting this suit and it is essentially necessary to examine him in this case. On hearing the counsel appearing for both the parties and in view of the pleadings in this suit I am of the view that in the interest of justice and for a just decision of this case an opportunity to examine defendant No. 2 as a witness in the case should be given to the defendants.

5. On considering all the above facts and in view of all that has been statedby the Division Bench of this Court in the above-mentioned decision with regard to the provisions of Rule 3-A of Order 18, C.P.C, I am of the view that the court should have allowed an opportunity to the defendants to examine defendant No. 2 as a witness in this case on granting proper compensatory costs in favour of the plaintiffs. In that view of the matter, the impugned order is set aside on condition that the petitioners deposit Rs. 50/- as costs in that court or pay the said amount to the counsel for the plaintiffs in that court within a week from the date of the intimation of the receipt of the lower court records from this Court, failing which the impugned order shall take effect. If the said amount is paid in time, the trial court shall fix a date for examination of defendant No. 2 as a witness for the defendants and shall proceed to dispose of the suit in accordance with law. The fact of the receipt of the lower court records by the court below be intimated to the counsel for the defendants 1 and 2 to enable them to deposit or make payment of the costs as ordered above.

6. The revision is allowed on the aforesaid terms. No costs.

7. The L.C.R. be sent back immediately.


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