RADHU MISHRA Vs. AKURA APATA

JUDGEMENT

(1.) THE order dated 3.8.2004 vide Annexure -6, passed by the learned Civil Judge (JD), 2nd Court, Cuttack in Civil Suit No. 253 of 2002 is assailed in this Writ Petition by the defendant in that suit.

(2.) THE aforesaid Civil suit has been filed by the present opposite party for cancellation of a sale deed. In the said suit a petition was filed on by the plaintiff -opposite party praying to summon the concerned Amin of the office of the Tahasildar, Niali for giving evidence with regard to a report said to have been submitted by him earlier during consolidation proceeding. The Court below by order dated 1.5.2004 rejected the said prayer on the ground that the name of the concerned Amin was not stated in the petition. However, the Court below granted liberty to the plaintiff -opposite party to file a fresh petition. A subsequent petition filed by the plaintiff for the self -same relief was gain rejected by the Court below by order dated 10.5.2004 on some technical ground. Thereafter the plaintiff filed a third petition on 28.6.2004 styling the same as one under Order 16, Rule 1(3) of the Code of Civil Procedure. Again the said petition was rejected by the Court below on the ground that the provisions of law were not correctly mentioned therein. Thereafter a petition was filed furnishing the name of the concerned Amin sought to be summoned to give evidence in Court on the ground that the same would be very much necessary for effectual adjudication of inter se disputes. The Court below allowed the prayer and directed the plaintiff -opposite party to deposit a sum of Rs. 300.00 within four days to meet the expenses for service of summon on the said Amin through special messenger.

(3.) THE submission of the learned counsel for the defendant -petitioner was strongly repudiated by the learned counsel for the plaintiff -opposite party. It is submitted that due to lack of experience of the learned counsel for the plaintiff -opposite party a full -fledged petition could not be filed, for which the earlier petitions filed by the plaintiff -opposite party had been rejected by the Court below. But then for the laches of the counsel a party should not suffer. According to him, in fact the report of the Amin, sought to be proved is available on record and for that purpose the Amin concerned is to be examined in the suit. Considering the matter in correct perspective the Court below has allowed the prayer.