KHIRODINI MALLICK Vs. RAMESH SOREN AND ORS.

JUDGEMENT

(1.) Order dated 02.03.2016 passed by the learned 2nd Additional Civil Judge (Senior Division), Bhubaneswar in C.S. No. 408 of 2010 allowing an application filed under Order 18 Rule 17, CPC read with Ss. 137 and 138 of the Indian Evidence Act, 1872 (for short, 'the Act') filed by the plaintiff to recall PW -1 for reexamination for the purpose of producing and proving the office copy of the letter dated 02.06.2003 is under challenge in this CMP.

(2.) Civil Suit No. 408 of 2010 has been filed for declaration that the registered Power of Attorney bearing No. 170 of 1991 executed by the plaintiff in favour of defendant No. 2 is void and non est and consequently Registered Tripartite Deed No. 86 of 2004 is void and non est and further declaration that the said deed does not confer any right, title and interest in favour of defendant No. 3 in respect of the suit property. He also prayed for permanent injunction restraining the defendant No. 3 from exercising any power pursuant to the Registered Tripartite Deed No. 86 of 2004.

(3.) The defendants filed their respective written statement and contested the suit. On closure of evidence of PW -1, the plaintiff filed an application under Order 18 Rule 17, CPC read with Ss. 137 and 138 of the Act to recall PW -1 for reexamination in order to produce and prove the office copy of the letter dated 02.06.2003. In the said application, the plaintiff referring to paragraph -4 of the deposition contended that pursuant to the execution of the Power of Attorney, the defendant No. 3 did not arrange any customer till 2003. He did not act upon the terms and conditions of the Power of Attorney. Hence, the plaintiff informed the defendant No. 2 that he had left with no option but to cancel the Power of Attorney and on 28.01.2003 through registered instrument No. 113 of 2003, the plaintiff cancelled the Power of Attorney No. 170 of 1991 informing the same orally to defendant No. 2 so also in writing through his Advocate on 02.06.2003 by registered post. He also averred in the said petition that such an averment is also available in the plaint. Inadvertently, the said letter could not be produced and marked as exhibit though the same is available with the plaintiff. He further contended that the said letter is a vital document and the plaintiff will be highly prejudiced if the prayer to recall PW -1 to produce and prove said letter dated 02.06.2003 is not granted.