SANKAR NARAYAN NAIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) PETITIONER is the plaintiff. He filed Title Suit No. 44 of 1966 in the court of the munsif, Balasore, against the State of Orissa for a declaration that he did not encroach upon the disputed land and the order of eviction passed by the Tahsildar is not ex* ecutable against him. He also prayed for permanent injunction. His case was that he with one Gurbachan Singh had a canteen on the roadside land of orissa Trunk Road opposite to the Civil Court building In 1962. there was a proposal for construction of a Bus Stand Plaintiff was asked to vacate the site on which the old canteen stood and with the verbal permission of Sri K. C. Singh Deo. who was then the Collector as well as the Chairman of the Balasore Municipality, he shifted to the suit site and constructed a canteen The Collector of Balasore filed written statement challenging the aforesaid averments in the plaint. Plaintiff summoned Sri K. C. Singh Deo, Collector of Balasore, to be examined as a witness on his behalf on 2-11-66. An application was filed on behalf of the Collector to exempt his personal appearance in Court and to permit him to be examined on commission. The learned Munsif allowed the application of the Collector. Plaintiff has filed the revision against that order.

(2.) TWO questions arise for consideration in this revision, namely, (i) Was the munsif justified in allowing the Collector to be examined on commission? and (ii)Should the High Court interfere with the discretion of the trial court?

(3.) THE application on behalf of the Collector was to the effect that he was the executive head of the Government offices in the district of Balasore and had to attend to manv emergency matters, such as, general election and drought The collector in his application did not say on affidavit that he was so busy that he could not spare any time for being examined as a witness in Court. Where the state of Orissa itself is the defendant, it is the paramount duty of the Collector to examine himself on behalf of the defendant and pledge his solemn testimony in court that the averment of the plaintiff that he got his verbal permission was false deposing in Court in support of Government's stand is duty of great public importance Tn the absence of the evidence of the Collector that he did not give verbal permission, a Court of fact might accept the plaintiffs' version that a verbal permission had been granted.