PALIA BEWA Vs. PARBATI KUMARI

JUDGEMENT

(1.) Plaintiff is the petitioner challenging the order of the learned Munsif D/- 15-2-1985 allowing the prayer of defendant 12 to recall the plaintiff for cross-examination by him.

(2.) Plaintiff's suit (T. S. No. 63 of 1984) is one for injunction against defendants 1 to 11 not to put up any construction and interfere with possession of the plaintiff over the disputed property. According to the plaint case, in a partition between father of the plaintiff and his co-sharer (defendant 11), the disputed property fell to the share of plaintiff's father and he executed a registered deed of gift in favour of the plaintiff. Defendants 10 and 11 without having any right, title or interest over the same have executed sale-deeds in favour of defendants 1 to 9 who are threatening to put up construction and hence plaintiff's suit for injunction. 2A. After the trial began and plaintiff had given her evidence, an application was filed by four persons to be impleaded as party-defendants claiming that they were vitally interested in the suit and were necessary parties to the suit. The learned Munsif by order D/-13-12-1984 allowed the said prayer and added them as defendants 12, 13, 14 and 14/a. Thereafter, defendants 12 filed a petition to summon the plaintiff who is P. W. 4 to cross-examine her since her evidence was over by the time defendant 12 was added as party. The learned Munsif on consideration of the said application has allowed the prayer by the impugned order D/- 15-2-1985 which is being challenged in this revision by the plaintiff.

(3.) According to Mr. Ram, the learned counsel for the plaintiff-petitioner, the plea of defendant 12 is one and the same as that of defendants 10 and 11 and defendants 1 and 11 having elaborately cross-examined the plaintiff, to permit defendant 12 again to cross-examine the plaintiff would be an undue harassment to the plaintiff and an abuse of the process of law. According to Mr. Ram this step is a mala fide one and is intended to nullify the evidence adduced on behalf of the plaintiff. Mr. Ram relies on the decisions of this Court in the case of Mani Dhal v. Padma Charan Dhal, (1984) 1 Orissa LR 467, in support of his contention. 3A. Mr. Dey, the learned counsel for the opposite party-defendant 12, however, submits that the order allowing defendant 12 to be impleaded as a party not having been challenged has become final and, therefore, under sub-r.(5) of R.10 of O.1, Civil P. C. the suit must be deemed to have begun against defendant 12 and, therefore, he has all the rights including asking for recalling of the witnesses already examined on behalf of the plaintiff for further cross-examination. He further submits that allowing a witness to be recalled for further cross-examination does not amount to "any case which has been decided" within the ambit of S.115(1), Civil P.C., and, therefore, this Civil Revision is not entertainable. On merits, Mr. Dey submits that the plea of defendant 12, as would appear from the written statement filed by him, is something different than the plea advanced by defendants 10 and 11 and in that view of the matter, refusing defendant 12 to cross-examine the plaintiff would amount to negation of his right and would make the order allowing him to be impleaded as a party wholly infructuous.