AMIYA KUMAR MOHANTY Vs. PAICHHA DALAI AND ORS.

JUDGEMENT

(1.) PLAINTIFF is the Petitioner. On 9 -4 -1981, lawyer for the Plaintiff being engaged in a sessions trial could not cross -examine D.W. 1 and D.W. 2. On the same day at about 11 a.m. when he filed a petition to recall the witnesses for the Defendants the same was not permitted on the ground that it would defeat the specific provision in Order 17, Rule 1(2)(c) of the Code of Civil Procedure. This order of the learned Munsif is the subject -matter of this Civil Revision.

(2.) COMMENCEMENT of the hearing of the suit started on 19 -3 -1981. On that day, P.Ws. 1 to 3 were examined. One witness though available could not be examined due to want of time. The case was posted to 26 -3 -1981 for further hearing. On 26 -3 -1981, three other witnesses for the Plaintiff were examined. As one witness could not be examined due to intervention of Dola Holidays, Plaintiff filed a petition to grant one week's time for summoning the said witness. In the ends of justice, time, was granted till 3 -4 -1981. On that day, two other witnesses for the Plaintiff were examined and prayer was made for summoning another witness. The prayer of the Plaintiff was rejected and he dosed the evidence on his side. Defendants filed a list of 7 witnesses. D.W. 1 was examined in chief. Due to want of time it was directed that the further examination would continue on 9 -4 -1981. On 9 -4 -1981 in the first hour when the case was called, it was represented on behalf of the advocate for the Plaintiff that he was engaged in sessions court and given half an hour time be would be in a position to take part in the trial of the suit. Trial court deferred the further hearing till 8 a.m. At that time, a petition was filed by the advocate for the Plaintiff for some time on account of his engagement in the Court of V Session. Observing that engagement of a counsel in another Court is not a ground for time as provided in Order 17, Rule 16(c) Code of Civil Procedure, trial court rejected the petition as it was not a good ground. It was observed that the learned Counsel should have made some arrangement when be knew about the part -bearing of the suit. It was also observed that the Court did not have any other work in hand and it could not wait indefinitely. However, 45 minutes more were given to the parties to get ready. At 9.15 a.m. again mention was made on behalf of the counsel for the Plaintiff for some more time. It was refused and the witnesses were examined on behalf of the Defendants. The case was closed and posted to 10 -4 -1981 for argument. This part of the order being material for this Civil Revision is quoted below:

(3.) AS I find from the order -sheet of the suit, no order has been passed dispensing with the cross -examination of witnesses for the Defendants by the Plaintiff. Order 17, Rule 1 has not prohibited recalling a witness for cross -examination. No adjournment was prayed for in this case. Only a small accommodation was needed. When the Courts are held in morning hours during summer, the duration of the Court is up to 12 -30 p.m. Court has already recorded that it had no other work. When at 11 a.m. the counsel for the Plaintiff approached to recall the witnesses for giving him an opportunity to cross -examine them in the interest of justice such a prayer should have been allowed. The matter would have been completely different if the learned Counsel for the Defendants would have reported that the witnesses had already left the Court. No objection seems to have been raised by the counsel for the Defendants who was heard in the matter. Only on the ground of technicalities that in view of Order 17, Rule 1(2)(c), Code of Civil Procedure, it is not proper to hold that inherent power cannot be attracted. I am of the view that the learned Munsif missed the essence in the cobweb of technicalities.