JAYARAM DAS Vs. DR. PRATAP CHANDRA DAS

JUDGEMENT

(1.) Heard.

(2.) This writ application has been filed by defendant No. 3 and 4 against the order passed on 23.4.2004 by learned Civil Judge (Senior Division), Baripada in Title Suit No. 1/30 of 2003-96, in rejecting the third application which was filed by the said defendants to recall P.W. No. 1 for further cross-examination. Learned Civil Judge while noting the contention of the defendants 3 and 4 that the documents marked Exts. 1 to 7 were filed by the defendants on the date of examination of P.W. No. 1 and therefore the said defendants claim prejudice in the event of non-affording opportunity of further cross-examination, also recorded the fact that similar application filed by the petitioners to recall P.W. No. 1 was rejected on 3.7.2001, 13.8.2001 and 20.8.2001. Admittedly, petitioner did not approach the higher forum against the above orders of rejection of such applications to recall P.W. No. 1 of for the purpose of further cross-examination. Thus, learned Civil Judge declined to entertain the present application. This Court finds no illegality in that approach, because the principle of constructive res judicata also applies to interlocutory order passed in pending proceeding (See the case of Arjun Singh v. Mohindra Kumar and others, A.I.R. 1964 S.C. 993). It is for the petitioners to find to if they can raise the contention of prejudice before the appellate Court for consideration, if an appeal is filed.

(3.) The writ petition is thus disposed of without interfering with the impugned order. Petition disposed of.