KAMALAKANTA PARIDA Vs. SAROJ BADAN PARIDA

JUDGEMENT

(1.) ORDER under Annexure - 3 to the writ application passed by the learned Civil Judge (Senior Division), Bhadrak, in Probate Case No.20 of 2008/401 of 2009 allowing an application under Order - 18, Rule - 16 CPC filed by the petitioners in the said Probate Case to examine one of the witnesses, namely, Benudhar Pati before recording the evidence of the other witnesses, is under challenge.

(2.) WHEN a partition suit was proceeding between the parties, an amendment was sought for, consequent upon a probate proceeding being filed to the writ application, was filed before this Court in connection with the said amendment petition registered as W.P.(C) No.17001 of 2009 by the present petitioners, which was disposed of by this Court by order dated 01.11.2010 directing the learned trial court to dispose of the application for amendment filed by the plaintiff within a period of two weeks. It was further directed that in the event, the amendment is allowed, the learned trial court shall try the partition suit as well as the Probate Misc. Case together, as both the cases involve a cover issue. In the meanwhile, the petition for amendment of the plaint was allowed.

(3.) MR . Dayananda Mohapatra, learned counsel for the petitioners brings to the notice of the Court that the impugned order is ex facie unsustainable, in view of the fact that the court, while considering the application under Order - 18, Rule - 16 CPC, has to record sufficient reasons for its satisfaction to form the basis for allowing such an application, which is in departure of the usual procedure prescribed under the Code, inasmuch as, only by considering the age factor of a person and without considering as to whether the said person is a necessary witness to be examined in the case and/or to be examined for any other sufficient cause, cannot mechanically pass the order, without assigning any reason whatsoever for exercising jurisdiction under the said provision, as has been done in the instant case and, therefore, the impugned order is clearly unsustainable and liable to be set aside.