SUDAM SAHOO Vs. DISTRICT JUDGE, CUTTACK AND ORS.

JUDGEMENT

(1.) This writ petition has been filed assailing the impugned orders under Annexures -3 and 4 passed by the learned Civil Judge (Senior Division), Second Additional Court, Cuttack as well as the District Judge, Cuttack in the matter of an application at the instance of the plaintiff debarring defendant No. 3 to cross - examine the witness of defendant No. 1 and consequently to delete the cross -examination already recorded on behalf of defendant No. 3.

(2.) The short fact involved in the case is that petitioner as plaintiff filed Title Suit No. 591 of 1990 praying therein for a decree with a declaration to the effect that Registered Sale Deed No. 4679 dated 8.11.1989 executed by opposite party No. 3 in favour of opposite party No. 5 as void and inoperative in the eye of law. After filing of the written statement separately by opposite party Nos. 3 and 5, trial was commenced. During evidence, the opposite party No. 3 i.e. defendant No. 1 examined his power of attorney selling his share in favour of opposite party No. 5 (the defendant No. 3 in the court below) involving a sale deed sought for declaring as bad. After the examination -in -chief of D.W.1 is over finding the trial court permitting the defendant No. 3 i.e. Opposite party No. 5 to cross examine the D.W.1, the plaintiff/petitioner filed a petition seeking a direction from the trial court debarring the opposite party No. 5 i.e. defendant No. 3 from cross examining the of D.W.1. The said petition was heard by the trial court and the trial court after considering the contention of the plaintiff as well as the contesting defendant No. 3 -present opposite party No. 5 by order dated 27.11.1997 even though appreciated the contentions of the petitioner, but while disposing the application by the impugned order allowed the defendant No. 3 to put question to the witnesses converted the portion already recorded in cross -examination, as chief at the instance of defendant No. 3. Being aggrieved by the said order, the petitioner preferred Civil Revision No. 164 of 1997. The revisional authority disposed the revision dismissing the same.

(3.) In assailing the impugned orders vide Annexures -3 and 4, Sri Dash, learned counsel appearing for the petitioner contended that since defendant No. 3 is the purchaser of the property belonging to defendant No. 1 by virtue of a power of attorney from the defendant No. 1 and having filed a written statement in the line of the written statement of defendant No. 1, there was no adversary between defendant No. 1 as well as defendant No. 3 and it is in this context, urged that the courts below have not only failed to appreciate the above factual background of the case vis   -vis considering the claim of the defendant No. 3 for cross -examination of D.W.1 also failed in appreciating the provisions contained in Sec. 138 of the Indian Evidence Act, 1872. Sri Dash, learned counsel also contended that both the courts below have failed to appreciate the judgments so cited by the plaintiff in both the courts below in the case of Hussens Hasanali Pulavwala v/s. Sabbirbhai Hasanali Pulavwala & others, : A.I.R. 1981 Gujarat 190 and it is under the circumstances contended that both the courts below passed the impugned orders not only contrary to the provisions in the Code of Civil Procedure but also otherwise contrary to the settled position of the land.