THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Extra Ordinary Jurisdiction)
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SINGLE BENCH: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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W.P. (C) No. 15 of 2023
Smt. Shova Gurung,
W/o Shri Saran Kumar Gurung,
R/o Jorethang Bazar, District Namchi,
P.O. Naya Bazar, P.S. Jorethang,
Sikkim-737 121.
..... Petitioner
Versus
1. Shri Siddharth Raj Gurung,
S/o Late Keshab Chandra Gurung
R/o Jorethang Bazar,
P.O. Naya Bazar, P.S. Jorethang,
District Namchi, Sikkim-737121.
2. The Secretary,
Urban Development & Housing Department,
Government of Sikkim,
District-Gangtok,
Sikkim-737101.
3. District Collector,
Office of the District Collectorate,
District Namchi, Sikkim-737126.
4. Sub-Divisional Magistrate,
Jorethang Sub-Division
Opposite Green Park
District-Namchi, Sikkim-737121.
.....Respondents
Petition under Article 227 of the Constitution of India.
Impugned order dated 18.04.2023 passed by the learned Civil Judge,
Jorethang Sub-Division, District Namchi in Title Suit No.02 of 2018 Smt.
Shova Gurung versus Siddharth Raj Gurung and 3 Ors.
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Appearance:
Mr. B. Sharma, Senior Advocate with Mr. B.N. Sharma,
Mr. Safal Sharma and Ms. Shreya Sharma, Advocates for
the Petitioner.
Ms. K. D. Bhutia, Ms. Subaksha Pradhan and Mr. Alex
Basnet, Advocates for the Respondent No.1.
2
W.P. (C) No. 15 of 2023
Shova Gurung vs. Siddharth Raj Gurung & Ors.
Mr. Shakil Raj Karki, Assistant Government Advocate for
Respondent Nos. 2 to 4.
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Date of hearing : 03.08.2023 & 07.08.2023.
Date of judgment : 07.08.2023
J U D G M E N T (ORAL)
Bhaskar Raj Pradhan, J.
1. The plaintiff has filed Title Suit No. 02 of 2018 against
Siddharth Raj Gurung-her nephew, Secretary, UD&HD,
District Collector and Sub-Divisional Magistrate as
defendants in the same order. It seeks a decree of
confirming her possession of the suit premises; a
declaration that defendant no.1 has no connection with
Schedule 'B' premise and the premises shown in A to F of
Annexure-7 and a decree restraining the defendant no.1
from entering and interfering with the possession of the
plaintiff over Schedule 'B' premise.
2. The plaint reflects that most of her grievances are
against the defendant no.1. The plaintiff did not assert that
defendant nos. 2 to 4 were adverse parties. In fact reading
paragraph 33 (A) of the plaint, three things are certain i.e. -
(i) that defendant nos.2 to 4 are performa defendants;
(ii) no prayers were sought for against the proforma defendants; and
(iii) that defendant nos. 2 to 4 had initiated proceedings to set right the record however, the file remained pending because of pendency of the suit.
3
W.P. (C) No. 15 of 2023 Shova Gurung vs. Siddharth Raj Gurung & Ors.
3. During the trial the plaintiff preferred an application
seeking a direction upon the defendant no.1 to cross
examine the witnesses of defendant nos. 3 and 4 first to be
followed by cross-examination by the plaintiff. In the
application it was pleaded that the defendants were
contesting parties and as such cross-examination of the
witness of defendant nos.3 and 4 has to be done by the
defendant no.1 first as they were sailing in the same boat.
It was also pointed out that witness Shri. D.B. Rasaily cited
by defendant nos.3 and 4 earlier was cited as witness by
defendant no.1 and when he was cited by defendant nos. 3
and 4 later, defendant no.1 dropped his name thus proving
that there was collusion between the defendants.
4. The learned Trial Judge, Jorethang Sub-Division,
South Sikkim vide impugned order dated 18.04.2023
rejected the application dated 23.03.2023 filed by the
plaintiff on the reasons stated therein.
5. Section 138 of the Indian Evidence Act, 1872
provides:
"138. Order of examination.- witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.
The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witnesses testified on his examination-in-chief. Direction of re-examination.-the re-examination shall be directed to the explanation of matters 4 W.P. (C) No. 15 of 2023 Shova Gurung vs. Siddharth Raj Gurung & Ors.
referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re- examination, the adverse party may further cross- examine upon that matter."
6. Section 138 makes it absolutely clear that the cross
examination is done by an adverse party and not by anyone
else.
7. The plaintiff while preferring the application before the
learned Trial Judge nor in his pleadings while approaching
this court under Article 227 of the Constitution of India has
asserted anything with regard to the written statement filed
by the defendant nos. 2 to 4. It has been stated at the bar
that written statements have been filed separately by
defendant no.1 and defendant no.2 and jointly by
defendant nos. 3 and 4. The written statements have not
been filed by the plaintiff in the present proceedings.
8. The pleadings in the plaint as stated above however
does not support the plaintiff's case in the application that
defendant nos. 3 and 4 are sailing in the same boat. It is
the specific case in the plaint that defendant no. 3 and 4
are only proforma defendants and no prayers are sought for
against them. In fact the plaint unequivocally pleads that
the defendant nos. 2 to 4 have already initiated proceedings
to set the record right vide letter dated 28.06.2017 which
remained pending due to the pendency of the suit. 5
W.P. (C) No. 15 of 2023 Shova Gurung vs. Siddharth Raj Gurung & Ors.
9. Thus no ground has been made out by the plaintiff to
exercise the power under Article 227 of the Constitution of
India to interfere with the impugned order.
10. It is for the trial court in consideration of the facts and
circumstances of the case to ensure justice is done and in
that view of the matter decide on the sequence of
examination of the witnesses and cross-examination
thereof. Keeping in mind the provision of the law, if on a
reading of the plaint and the written statements the trial
court is of the view that the stand taken by any of the
defendant nos.2, 3 and 4 is also adverse to the stand taken
by the plaintiff it is open for the trial court to sequence the
cross-examination of witnesses to ensure no party before it
is prejudiced.
11. The writ petition is dismissed with no orders as to
costs.
( Bhaskar Raj Pradhan )
Judge
Approved for reporting : Yes
Internet : Yes
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