BENUDHAR DAS Vs. BABURAM DAS

JUDGEMENT

(1.) An interesting question relating to the power of the Court to examine witness while dealings with an application under O. 39, R. 1 of the Code of Civil Procedure, 1908 (in short 'the Code') requires resolution.

(2.) By the impugned order the learned Subordinate Judge, Kendrapara held that such scope did not exist, which has brought two of the defendants before this Court. The resolution does not very much depend on the factual controversy.

(3.) The background in which the order was passed is that the plaintiffs who are opposite parties Nos. 1 to 3 in this revision application filed Title Suit No. 3 of 1990 in the Court of the Subordinate Judge, Kendrapara, praying for a decree to declare that title over the suit land, confirmation of possession and permanent injunction against four defendants (the two petitioners and opposite parties Nos. 4 and 5) and one Sachidananda Mohanty, defendant No. 5. They also filed an application under O. 39, Rules 1 and 2 of the Code praying for temporary injunction against the defendants 1 to 4. There was resistance to the application for temporary injunction; and the defendants filed an application to examine Sachidananda Mohanty (defendant No. 5). According to the defendants 1 to 4, they have purchased the land by registered sale deed dated 3-5-1988 from Sachidananda Mohanty, and the plaintiffs had got a sham sale deed executed by impersonation. Sachidananda Mohanty is not a party in the application for injunction. The prayer to examine the said Sachidananda Mohanty was refused by the learned Subordinate Judge on the ground that while dealing with an application under O. 39, Rules 1 and 2 of the Code, there was no scope for such examination and the application had to be disposed of on perusal of the petitioner and objection if any and on consideration of the documents if any filed by the parties.