Orissa High Court
M/S. Padma Motors Pvt. Ltd. ... vs Snehalata Satpathy on 13 March, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 1137 OF 2022
In the matter of an application under Article 227 of the
Constitution of India.
.....
M/s. Padma Motors Pvt. Ltd. (Odisha Ford)
and others ...... Petitioners
-Versus-
Snehalata Satpathy ...... Opp. Party
Advocates appeared in these cases:
For Petitioners : M/s. Gouri Mohan Rath, S.S. Padhy,
A.S. Mohanty, S. Patnaik and
S. Jena
For Opp. Party : M/s. Bhaskar Ch. Panda, S. Mishra,
J.N. Panda, R.R. Sahoo and
B. Sahoo
CORAM :
MR. JUSTICE K.R. MOHAPATRA
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Heard and disposed of on 13.03.2023
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JUDGMENT
K.R. Mohapatra, J.
1. This matter is taken up through hybrid mode.
2. The Petitioners in this CMP seek to assail the order dated 4th
May, 2022 (Annexure-7) passed in C.S. No.828 of 2017, whereby
learned 3rd Additional Civil Judge (Senior Division), Cuttack held the
cross-examination of P.Ws.1 and 2 by Defendant Nos.1 and 2 to have
been declined. The Petitioners also assail the order dated 26th
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August, 2022 (Annexure-1), whereby learned trial Court refused to
recall the order under Annexure-7.
3. Mr. Rath, learned counsel for the Petitioners submits that
Defendant No.1 and 2 are the Petitioners in this CMP. P.W.1
adduced her evidence in chief on 4th May, 2022. She was also cross-
examined in part by learned counsel for the Defendant Nos.1 and 2.
Since P.W.1 arrived from USA and fourteen days quarantine period
was not over by the time she was examined as P.W.1, an application
was filed on behalf of Defendant Nos.1 and 2 on the said date either
to cross-examine P.W.1 on virtual mode or to cross-examine her in
physical mode in Court after fourteen days. The said application was
taken up on that date, i.e., on 4th May, 2022 and was rejected.
Accordingly, it was directed that learned counsel for Defendant
Nos.1 and 2 may cross-examine the witness by putting mask on the
face and maintaining required social distance. Thereafter, the suit
was taken up for further cross-examination of P.W.1 and learned
trial Court observing that learned counsel for Defendant Nos.1 and 2
were found absent on call held that Defendant Nos.1 and 2 declined
to cross-examine the P.W.1. Since P.W.2 was present in Court, his
evidence was also recorded on the said date and due to absence of
learned counsel for the Defendant No.2, his cross-examination was
also held to be declined by those Defendants. On the very same day,
the Petitioners filed an application to recall the said order. But by the
time the petition was considered i.e. on 26th August, 2022, both
P.Ws. 1 and 2 had left India for USA. As such, the said application
was also rejected vide order under Annexure-1.
4. Mr. Rath, learned counsel for the Petitioners submits that
although P.W.1 was cross-examined in part by learned counsel for
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the Defendant Nos.1 and 2, but due to guidelines issued by the
Ministry of Health and Family Welfare, Government of India on 10th
February, 2022 under Annexure-6, both P.Ws.1 and 2 should have
remained in quarantine for a period of fourteen days, as they had
travelled from USA. Learned trial Court without realizing the same,
examined P.Ws.1 and 2 within seventy-two hours of their arrival in
India. Apprehending danger to the life of learned counsel for
Defendant Nos.1 and 2, an application was filed to cross-examine
P.W.1 on virtual mode. The Odisha High Court Video Conferencing
for Courts Rules, 2020 (for short 'the Rules') also facilitates
examination of witnesses through virtual mode. Although learned
counsel for Defendant Nos.1 and 2 did not file any application in
Form-I as required under Section 6(2) of the Rules, but the same
cannot be a legal impediment for consideration of his application on
merit. Operation of the notification issued by the Ministry of Health
and Family Welfare was in force by the time both P.Ws. 1 and 2 were
examined on physical mode. As such, learned trial Court ought to
have allowed said application and granted leave to learned counsel
for Defendant Nos.1 and 2 either to cross-examine P.W.1 through
virtual mode or to allow her cross-examination on physical mode
after fourteen days. He further submits that the examination of
P.W.2 was done behind the back of the Petitioners, as the case was
never posted for examination of P.W.2 on that date. It is his
submission that Defendant Nos. 1 and 2 are not avoiding cross-
examination of P.Ws. 1 and 2, but for precautionary measure and to
avoid spreading of COVID-19, such an application was filed. In
view of the above, he prays for setting aside the impugned orders
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under Annexures-7 and 1 and to permit the Petitioners to cross-
examine P.Ws.1 and 2.
5. Mr. Panda, learned counsel for the Plaintiff-Opposite Party
vehemently objects to the same. It is his submission that in spite of
service of notice on Defendant Nos.1 and 2, they did not prefer to file
any written statement within the statutory period. However, on the
date of hearing of the suit, Defendant Nos.1 and 2 filed an application
for acceptance of written statement. The Plaintiff did not raise any
objection to the same and as per her concession, the written statement
filed by Defendant Nos.1 and 2 was accepted on 2nd May, 2022.
Thereafter, the suit was posted to 4th May, 2022 for evidence from
the side of the Plaintiff-opposite Party. Evidence in affidavit of
P.Ws.1 and 2 were also served in advance on learned counsel for
Defendant Nos.1 and 2. Defendant Nos.1 and 2 never raised any
objection to the examination-in-chief of P.W.1 in Court on physical
mode. In fact, learned counsel for Defendant Nos.1 and 2 also cross-
examined P.W.1 in part. Thereafter, an application was filed on the
same day to cross-examine P.W.1 through virtual mode or through
physical mode after fourteen days. The intention of the Defendant
Nos.1 and 2 is only to harass the Plaintiff and his witnesses and to
drag on the litigation. Admittedly, both P.Ws.1 and 2 are staying in
USA and they had come to lead evidence in the suit, which was well
within knowledge of the Defendants. But the Defendant Nos.1 and 2
are adopting different tactics to delay the matter and harass the
Plaintiff. After pronouncement of the order rejecting the application
to P.W.1 through virtual mode, learned counsel for Defendant Nos.1
and 2 left the Court and did not co-operate with the Court to cross-
examine the P.W.1, although she was present in Court. As such,
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learned trial Court finding no other alternative closed the evidence of
P.W.1. Since the matter was posted for adducing evidence, the
Plaintiff produced P.W.2, who was examined in chief and due to
absence of Defendant Nos.1 and 2 and their learned counsel in Court,
his cross-examination was also held to be declined by Defendant
Nos.1 and 2. As such, learned trial Court has committed no error in
passing the order under Annexure-7. Although the application to
recall the said order was filed, it was posted to next day for service of
copy and filing of objection. The matter was ultimately taken up on
26th August, 2022 by which date both P.Ws.1 and 2 left India for
USA. Since the witnesses were not available in India, learned trial
Court had no other option than to reject the petition vide order under
Annexure-1. As such, learned trial Court has not committed any
error in passing the orders either under Annexure-7 or under
Annexure-1. He, therefore, prays for dismissal of the CMP.
6. Taking into consideration the rival contentions of the parties,
the notification of Ministry of Health and Family Welfare,
Government of India annexed to the CMP as Annexure-6 as well as
The Odisha High Court Video Conferencing for Courts Rules, 2020,
it appears that Rule-6 of the aforesaid Rules facilitates examination
of a witness through virtual mode. Section 6(4) of the Rules clearly
stipulates as under:
"(4) on receipt of such a request and upon hearing all
concerned persons, the Court shall pass an appropriate
order after ascertaining that the application (especially
where it is filed for recording evidence) is not filed with
an intention to impede a fair trial or to delay the
proceedings."
7. In the instant case, learned counsel for Defendant Nos.1 and
2 admittedly did not raise any objection to the examination-in-chief
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of P.W.1 in physical mode. In addition to above, he also cross-
examined P.W.1 in part. At that stage, an application (though not in
Form-I) was filed for cross-examination of P.W.1 through virtual
mode. The ground taken in the said petition was that P.W.1 had
arrived from USA and had not spent fourteen days quarantine period
by the time she appeared in Court. On perusal of the notification
under Annexure-6, it does not appear that a traveler arriving from
abroad especially from USA should stay in quarantine for a period of
fourteen days. Mr. Rath, learned counsel for the Petitioners drew
attention of this Court to Clause A.4(xv) of the guidelines of
Government of India which stipulates that all travelers will self-
monitor their health for next fourteen days of arrival. Thus, it is
apparent that travelers arriving in India from abroad were required to
self-monitor their health for next fourteen days of their arrival. That
cannot be construed as a quarantine period, as submitted by Mr. Rath,
learned counsel for the Petitioners. Further, after rejection of the
petition submitted by the Petitioners, learned trial Court directed
Defendant Nos.1 and 2 to cross-examine P.W.1 in Court by putting
mask on the face and by maintaining required social distance.
Learned counsel for the Petitioners without co-operating left the
Court when P.W.1 was available for cross-examination. Thus,
learned trial Court has committed no error in holding that cross-
examination of P.W.1 by Defendant Nos.1 and 2 has been declined.
Since the matter was posted for adducing evidence on the said date
and P.W.2 was available, he was examined in chief. But, due to
absence of learned counsel for Defendant Nos.1 and 2 in Court, his
cross-examination was held to be declined by Defendant Nos.1 and 2.
As such, this Court finds no error in the procedure adopted by
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learned trial Court. By the day, the petition for recall of the order
dated 4th May, 2022 was considered, P.Ws.1 and 2 had already left
India for USA. Hence, learned trial Court has not committed any
error in refusing to recall the said order.
8. However, in the aforesaid facts and circumstances of the
case, this Court felt that the Petitioners-Defendant Nos.1 and 2
should be given a further opportunity to cross-examine P.Ws.1 and 2.
Keeping that in mind learned counsel for the Plaintiff-Opposite Party
was directed to take instruction as to when the witnesses can be made
available in India for their cross-examination.
9. Mr. Panda, learned counsel for the Plaintiff-Opposite Party,
on instruction, submits that the witnesses, namely, P.Ws.1 and 2, will
be available in India on 3rd April, 2023 for a week. But, they have to
incur heavy expenditure for that purpose.
10. Thus, considering the same, this Court keeping the orders
under Annexures-7 and 1 in abeyance, disposes of the CMP with a
direction that the Defendant Nos. 1 and 2 shall file an undertaking
before learned trial Court within one week hence to deposit an
amount of Rs. 50,000/- (Rupees fifty thousand only) by 3rd April,
2023 and on depositing said amount before learned trial Court on or
before 3rd April, 2023, the Petitioners shall be allowed to cross-
examine P.Ws.1 and 2. It is made clear that the cross-examination of
P.Ws.1 and 2 shall be completed by 5th April, 2023. The amount so
deposited shall be paid to the P.Ws.1 and 2 on their appearance
before the Court on 3rd April, 2023. If the direction, as aforesaid, is
not complied by the Petitioners within the stipulated date, then the
Orders under Annexures-7 and 1 shall get revived.
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11. Mr. Panda, learned counsel for the Plaintiff-Opposite Party
is instructed to make his witnesses, namely, P.Ws.1 and 2, available
on 3rd April, 2023 during first hour. The Defendant Nos.1 and 2 shall
without wasting any time, complete cross-examination of the
witnesses, namely, P.Ws.1 and 2 by 5th April, 2023. No prayer for
extension of time for compliance of the order shall be entertained in
future.
12. With the aforesaid observation and direction, the CMP is
disposed of accordingly.
Urgent certified copy of the judgment be granted on proper
application.
(K.R. Mohapatra)
Judge
Orissa High Court, Cuttack
Dated the 13th March, 2023/ms
