Orissa High Court
Khirod Kumari Devi @ Khirode vs Nalini Devi And Others on 12 September, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 510 OF 2022
Khirod Kumari Devi @ Khirode .... Petitioner
Kumari Devi
Mr. Dayananda Mohapatra, Advocate
-versus-
Nalini Devi and others .... Opp. Parties
Mr. Manoj Mishra, Senior Advocate
being assisted by Mr. Tanmay Mishra, Advocate
(For Opp. Party Nos.1 to 3)
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 12.09.2022
8. 1. This matter is taken up through hybrid mode.
2. The Petitioner in this CMP seeks to assail the orders
dated 18th May, 2022 and 19th May, 2022 (Annexure-2) and 20th
May, 2022 (Annexure-3) passed by learned Civil Judge (Senior
Division), Berhampur in T.S. No.75 of 1980.
3. Mr. Mohapatra, learned counsel for the Petitioner-
Defendant No.2 submits that after closure of evidence from the
side of the Plaintiffs on 25th March, 2022, the Defendant No.2
examined herself as D.W.1. The case was posted to 16th May,
2022 for recording evidence on behalf of D.W.1 (Defendant
No.2) and examination-in-chief of D.W.1 could not be
completed on that date. Hence, the suit was posted to 17th May,
2022 for further examination of D.W.1. On that day, the
Defendant Nos.2 to 4 filed an application to accept few more
documents and prayed for an adjournment. Accordingly, the
matter was adjourned to 18th May, 2022 for further examination-
in-chief of D.W.1. Due to her illness, the Petitioner-Defendant
// 2 //
No.2 (D.W.1) could not present herself in Court for further
examination on 18th May, 2022. Accordingly, learned Civil
Judge (Senior Division), Berhampur recorded as under:
".........Since the D.W.1 is absent, who could
not be cross-examined by the learned counsel for the
plaintiff, the evidences already recorded (both oral as
well as documentary) of DW.1 stands hereby
exonerated/discarded. The office is directed to endorse
this fact on the list of documents exhibited by DW.1 in
the remarks column. Since no other witness is present
on behalf of the defendants, the evidence from the side
of the defendants is hereby closed. Put up at 3.00 P.M.
today for hearing of the argument in the suit. The
learned counsels representing the parties are hereby
informed to remain present at the scheduled time."
Thereafter, the matter was posted to next day i.e. on 19th
May, 2022 for hearing of argument at 2.00 P.M. On that date,
Defendant Nos.2 to 4 filed an application to recall the order
dated 18th May, 2022 and permit the D.W.1 to adduce evidence.
The said petition was rejected on the same day, i.e. on 19th May,
2022 and the matter was posted to 20th May, 2022 for argument
on which date learned trial Court closed the argument and posted
the matter for pronouncement of the judgment. At this stage, the
Petitioner moved this Court for the aforesaid relief.
4. Taking into consideration the submission made by
learned counsel for the Petitioner, this Court vide order dated
28th June, 2022 passed an interim order directing learned trial
Court not to deliver the judgment till the next date. The said
order is in force. It is his submission that as the Petitioner-
Defendant No.2, who is being examined as D.W.1, was ill on the
next date of examination, i.e. on 18th May, 2022 for which she
could not present herself for further examination-in-chief.
// 3 //
Absence of the Petitioner was not intentional and it was beyond
her control. If another opportunity is given, she will present
herself to adduce further evidence. It is also undertaken by
learned counsel for the Petitioner that no further document will
be produced on behalf of the Defendant Nos.2 to 4 in the suit. It
is his submission that due to the circumstance beyond control of
the Petitioner, she could not appear and lead evidence. Hence,
another opportunity should be given to her to lead her evidence
for the ends of justice. He, therefore, prays for setting aside the
impugned orders under Annexures-2 and 3 and to direct learned
trial Court to record the evidence of Petitioner-D.W.1.
5. Mr. Mishra, learned Senior Advocate appearing for the
Plaintiff-Opposite Party No.1 submits that the suit is of the year
1980. The evidence of the Plaintiff has been closed since
March, 2022. But the Defendants Nos.2 to 4 are adopting
dilatory tactics to linger the suit. When the matter was posted
on 18th May, 2022, the Petitioner-D.W.1 could not present
herself for further examination and cross-examination. As such,
learned trial Court has committed no error in passing the
impugned orders under Annexures-2 and 3.
6. Taking into consideration the rival contentions of the
parties, this Court is of the considered opinion that due to illness
of the Petitioner-D.W.1, she could not present herself in Court
for further examination as well as for cross-examination and the
impugned order dated 18th May, 2022 was passed. On the very
next date, she filed an application to recall the order and permit
her to lead evidence. Thus, it appears that the Petitioner has
// 4 //
shown bona fide in filing a petition immediately to recall the
order dated 18th May, 2022 and to permit her to lead further
evidence and for cross-examination.
7. In view of the above, this Court finds that the Petitioner-
D.W.1 should be given another opportunity to lead evidence in
the matter. Accordingly, this Court sets aside the order dated
18th May, 2022, 19th May, 2022 (Annexure-2) and 20th May,
2022 (Annexure-3) passed in T.S. No. 75 of 1980 and directs
the Petitioner-D.W.1 to be present on 20th September, 2022
along with certified copy of this order and make herself
available to lead further evidence on her behalf and for cross-
examination. Keeping in view that the suit is of the year 1980
and the Petitioner on the date of her examination could not make
herself available, the Petitioner-D.W.1 shall be permitted to lead
evidence in the matter subject to payment of cost of Rs.5,000/-
to the learned counsel for the Plaintiffs-Opposite Parties on the
date of her appearance, i.e. on 20th September, 2022.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
Judge
ms
