Orissa High Court
Sandhyarani Mohanty vs Anasuya Mohanty .... Opp. Party on 29 November, 2023
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 01-Dec-2023 13:02:38
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 38616 OF 2023
(An application under Articles 226 and 227 of the
Constitution of India)
*****
Sandhyarani Mohanty .... Petitioner
-versus-
Anasuya Mohanty .... Opp. Party
Advocates appeared:
For Petitioner : Mr. Bidesh Ranjan Behera, Advocate
For Opp. Party : Mr. Shib Shankar Mohanty, Advocate
CORAM:
JUSTICE K.R. MOHAPATRA
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Heard & Disposed of on : 29.11.2023
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JUDGMENT
1. This matter is taken up through hybrid mode.
2. Order dated 17th August, 2023 (Annexure-6) passed by
learned Judge, Family Court, Bhubaneswar in CP No.576 of
2017 is under challenge in this writ petition, whereby an
application filed by the Petitioner to recall PW-1 for further
cross-examination has been rejected.
3. Mr. Behera, learned counsel for the Petitioner submits
that she (Petitioner) is the Respondent in the Civil Proceeding
filed by the Opposite Party for a declaration that she is the legally
married wife of one late Kailash Chandra Mohanty. The
Opposite Party was examined as PW-1 during March, 2019 and
Digitally Signed // 2 //
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 01-Dec-2023 13:02:38
she was cross-examined by learned counsel for the Petitioner in
her (Petitioner's) absence. Only some suggestions were put to the
Opposite Party by her counsel in her cross-examination. Thus, an
application under Order XVIII Rule 17 CPC was filed with a
prayer to recall PW-1 for further cross-examination to put
questions relating to the alleged marriage of the Opposite Party
(PW-1) and also questions relating to the documents exhibited by
her (Opposite Party). The said application was rejected on the
ground that the Petitioner wants to question the knowledge of her
counsel. It is observed in the impugned order that though the
cross-examination of PW-1 was over since March, 2019, but the
application under Order XVIII Rule 17 CPC was filed after more
than four years. It was further observed by learned Judge, Family
Court that the questions sought to be put to the Petitioner have
already been answered. It is submitted by Mr. Behera, learned
counsel for the Petitioner that learned counsel appearing for a
party before the Family Court only acts as an Amicus Curiae.
Thus, he cannot perform all necessary tasks, as the party
himself/herself would have done. In support of his case, Mr.
Behera, learned counsel for the Petitioner places reliance upon
the decision in the case of Sadhana Patra Vs. Subrat Pradhan,
reported in 2006 (I) OLR 524, in which this Court framed two
issues for consideration. The relevant issue for consideration of
this case is "whether an Amicus Curiae can do all sorts act as an
Advocate retained by a party in a judicial proceeding?" While
answering the said issue, this Court observed as under:-
"9. The second question raised before this Court is the
role of Amicus curiae in a proceeding before the Family
W.P.(C) No. 38616 OF 2023
Digitally Signed // 3 //
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 01-Dec-2023 13:02:38
Court appointed under proviso to Section 13 of the Act.
Shri Mohanty, learned Counsel appearing for the opposite
party and Sri Jagannath Patnaik, Senior Advocate who
had been requested to assist the Court in this regard relied
upon a decision of the Rajasthan High Court in the case
of Sarla Sharma v. State of Rajasthan and Ors. reported
in/(2002) DMC 409 (DB) as well as AIR 2002 Raj 301.
Referring to the Family Court Rules of the State the
Division Bench of the Rajasthan High Court in para-8 of
the judgment has laid down the basic distinction between
the legal practitioner appearing as an Amicus curiae and a
lawyer/Advocate appearing for the individual party. Said
paragraph is quoted below.
"There is a basic distinction between, a legal
practitioner appearing as an amicus curiae i.e.
friend of the Court and a Lawyer/Advocate
appearing for individual party. The Family Courts
are established to settle family disputes expeditiously
without there being strict rigour or procedural law
and Evidence Act keeping an eye on conciliatory
approach to achieve socially desirable result. It is,
therefore, Legislatures have thought it proper to
restrict appearance of Lawyers/Advocates in the
proceedings, who by nature of their training, do
insist upon compliance of the procedural law and
application of strict rules of evidence. Having
considered the aims and objects and statutory
provisions of the Family Courts' Act and even giving
liberal construction, appearance permissible of legal
expert as an amicus curiae under the proviso
to Section 13 of the Act of 1984 cannot be read to
include appearance by Lawyer or Advocate.
Therefore, apparently, the Rule 22 of the Rules of
1994, permitting Lawyer/Advocate's appearance with
the permission of the Court then increases the
permissible limit provided under Statute, namely,
proviso to Section 13 of the Act of 1984."
From the discussions made in the judgment it appears that
a legal practitioner appearing as an amicus curiae is a
friend of the Court and the amicus curiae is not appointed
as a private counsel by the parties to action or to represent
them in a partisan manner and for their personal use and
benefit and that they do not have a function of taking over
conduct of a case for parties to litigation. Although the
Court may hear the communications of an amicus curiae, it
is within the discretion of the Court whether it will need
the advice given and the amicus curiae has no right to
W.P.(C) No. 38616 OF 2023
Digitally Signed // 4 //
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 01-Dec-2023 13:02:38
complain if the Court refuses to accept his suggestions.
The Law Lexicon edited by Justice Y.V. Chandrachud
describes 'amicus curiae' as a friend of the Court. It says
that an amicus curiae is one to volunteer or on invitation
of the Court instructs the Court on a matter of law
concerning which the latter is doubtful or mistaken, or
informs him on facts, a knowledge of which is necessary
for a proper disposition of the case. Amicus curiae is one
not being retained in a case volunteers to express his views
or make suggestions for information of the Court.
Chambers 21st Century Dictionary describes 'amicus
curiae' as a person not directly involved in a cause but
who gives advice about it and otherwise means, friend of
the Court.
In view of what has been discussed above, there cannot be
any doubt in mind that an amicus curiae appointed by the
Judge, Family Court, under the proviso to Section 13 of the
Act is only a friend of the Court and is required to assist
the Court in matters of fact and law as and when required
by the Court and cannot act as a lawyer/advocate engaged
by a party to defend cases. In other words, an amicus
curiae cannot do all such acts as usually done by an
Advocate retained by a party in a judicial proceeding and
his role is limited to rendering assistance to the Court in
matters of facts and law whenever required by the Court."
He, therefore, submits that the Amicus Curiae could have cross-
examined the PW-1 in her absence.
3.1 He further submits that no question with regard to the
marriage of PW-1 was put by her counsel. Hence, learned Judge,
Family Court being erred in law and facts held that the proposed
questions have already been answered. It is submitted that the
delay in filing the petition occurred as the Petitioner had moved
this Court in MATA No.96 of 2021, which was disposed of on
13th July, 2023. These aspects were not taken into consideration
by learned Judge, Family Court, while adjudicating the petition.
Hence, the impugned order is not sustainable and hence liable to
W.P.(C) No. 38616 OF 2023
Digitally Signed // 5 //
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 01-Dec-2023 13:02:38
be set aside. PW-1 should be recalled for cross-examination by
the present Petitioner (Respondent in the CP).
4. Mr. Mohanty, learned counsel, who has entered
appearance for the Opposite Party through Caveat, submits that
he has not obtained complete instruction. A copy of the writ
petition is only served on him last evening. He, however, submits
that while disposing of the MATA, this Court has specifically
directed that the Petitioner (Appellant in the Appeal) should
appear before learned Judge, Family Court, Bhubaneswar on 18th
July, 2023 along with evidence in affidavit on the date of
appearance. It was further directed that on 18th July, 2023, the
matter shall be taken up by learned Judge, Family Court and the
Opposite Party should be given an opportunity for cross-
examination. This Court also directed that the Civil Proceeding
should be disposed of within a period of three months from the
date of appearance. Without respecting the direction of this
Court, the Petitioner is filing several applications to delay the
proceeding. The Petitioner has already been examined in the
matter and the CP is posted for further evidence on behalf of the
present Petitioner.
4.1 It is his submission that the impugned order is justified,
inasmuch as, a party should not be allowed to patch up the lacuna
by recalling a witness. Further, the application for recall of PW-1
was filed after a delay of more than four years. Hence, he prays
for dismissal of the writ petition.
5. Considering the submissions made by learned counsel for
the parties, this Court finds that the PW-1 was examined in
W.P.(C) No. 38616 OF 2023
Digitally Signed // 6 //
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 01-Dec-2023 13:02:38
March, 2019 and she was cross-examined and discharged. It
appears that the Opposite Party while cross-examining the PW-1
had put certain questions as well as suggestions. Thus, it is not
correct to allege that only suggestions were put to PW-1 in her
cross-examination. It is, however, not clear as to who made such
suggestions, viz; either the Advocate engaged by the Petitioner or
she herself cross-examined PW-1. Although it is alleged that the
Petitioner was absent on the date of cross-examination of PW-1,
but there is no material to that effect. Thus, the case law in
Sadhana Patra (supra) is of no assistance to the Petitioner
6. Be that as it may, by the time the petition for recall of
PW-1 was filed more than four years had already elapsed. Of
course, during that period the Petitioner had filed MATA No.96
of 2021, which was disposed of on 13th July, 2023. Excluding the
period of pendency of MATA before this Court, there is still
delay of more than two years in filing the application for recall of
PW-1. No such plea with regard to alleged inadequate cross-
examination of PW-1 was taken in the MATA. Taking into
consideration the materials available on record, this Court while
disposing of the MATA, directed that the Petitioner should
appear on 18th July, 2023 along with her evidence in affidavit. In
the meantime, the Petitioner has already been examined and the
CP is pending for further evidence on behalf of the Petitioner
(Respondent therein).
6.1 Law is well-settled that the power to recall a witness
should be used sparingly in exceptional cases, where the Court
feels that there is ambiguity in the evidence of a witness and that
actual prejudice has been caused to a party seeking for recall of a
W.P.(C) No. 38616 OF 2023
Digitally Signed // 7 //
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 01-Dec-2023 13:02:38
witness. In the instant case, no such case is made out by the
Petitioner. The Petitioner has tried to make out a case on mere
technicality to wipe out the cross-examination of PW-1 by
recalling the witness. Such an attempt should not be encouraged.
Since the Civil Proceeding is targeted, the Petitioner should
cooperate with learned Judge, Family Court for early disposal of
the Civil Proceeding.
7. In view of the above, I find no infirmity in the impugned
order. Accordingly, the writ petition stands dismissed.
Issue urgent certified copy of the judgment on proper
application.
(K.R. Mohapatra)
Judge
s.s.satpathy
W.P.(C) No. 38616 OF 2023
