SUBASH CHANDRA MOHAPATRA Vs. AMITA PANDA AND OTHERS

JUDGEMENT

(1.) This petition challenges the order dated 19.9.2009 passed by the learned Civil Judge (Senior Division), Balasore in C.S. No.341/437 of 2000 -I/2004; whereby and whereunder the learned trial court rejected two petitions of the defendant no.1 -petitoner to recall P.W 1 and D.W.1 for further cross -examination.

(2.) Opposite party no.1 as plaintiff instituted the suit for partition impleading the petitioner and opposite parties 2 to 8 as defendants. Pursuant to issuance of summons, the petitioner who was defendant no.1 entered appearance and filed written statement stating therein that the suit schedule property has already been partitioned by means of a partition deed dated 18.8.1984. Defendant -opposite party no.3 filed a written statement stating that the suit schedule property has not been partitioned. To prove the case, the plaintiff examined herself as P.W.1 and Defendant no.3 examined herself as D.W.1. Both the witnesses have been cross - examined by defendant no.1. While the matter stood thus, two petitions had been filed by defendant no.1 under Order 18 Rule 17 CPC to allow defendant no.1 for further cross -examination of P.W.1 and D.W.1. It is stated that on the day of cross -examination of P.W.1 by the advocate for defendant no.1, the defendant no.1 was absent. Due to lack of instruction by defendant no.1, some material questions could not be put to P.W.1. Those questions are necessary to be asked through further cross - examination of P.W.1. The same plea was taken in the second petition filed to recall D.W.1. Learned trial court came to hold that the plea taken by defendant no.1 that on the date of cross -examination, defendant no.1 was absent in the court for which proper instruction was not given to the advocate, can hardly be believed and accepted, since the learned advocate for the defendant no.1 did not raise any objection at the time of cross - examination of D.W.1. He further held that on perusal of the schedule of questions mentioned in the petition, it transpires that they are not very much essential for just decision of the suit. Held so, learned trial court rejected two petitions filed by defendant no.1 for further cross -examination of P.W.1 and D.W.1.

(3.) Heard Mr.Prusty, learned counsel for the petitioner and Mr.Panda, leaned counsel for the opposite party no.1.