SUKANTI KANHAR Vs. RANJITA PATRA

JUDGEMENT

(1.) This Civil Miscellaneous Petition involves a challenge to the order under Annexure-3 passed by the learned Civil Judge (Senior Division), Phulbani in connection with Civil Suit No.1 of 2009, thereby allowing an application under Section 73 of the Indian Evidence Act at the instance of the plaintiff.

(2.) Short background involved in the case is that the opposite party as plaintiff filed Civil Suit No.1 of 2009 in the court of the Civil Judge (Senior Division), Phulbani for release of Rs.50,000/- (Rupees fifty thousand) from the petitioner-defendant therein stated to be a recovery of a hand loan to the present petitioner. The trial court by judgment dated 13.10.2009 dismissed the suit. An appeal being preferred vide R.F.A.No.15 of 2009, the appeal was disposed of on contest appears to have been with a direction for remand of the suit for fresh consideration with specific orders. It is after reopening of the suit and while the suit was in progress, an application under Order 3, Rule 1 of the Code of Civil Procedure read with Section 73 of the Indian Evidence Act was filed by the plaintiff seeking a direction from the trial court for appearance of the defendant in person in court to give her writings/signatures as desired by the handwriting expert. The request in the above application was made under the pretext that particular document was required to be sent to be sent to the handwriting expert. In obligation to the direction of the lower appellate court, the expert has submitted a comment expressing his inability to give a report under the pretext of requirement of some further signatures. This application was objected by the present petitioner under the ground of being beyond the direction of the lower appellate court. Considering the submission of both side, the trial court vide order dated 7.2.2017 accepting the case of the plaintiff-opposite party, allowed the application directing therein for appearance of the defendant before the court on 27.2.2017 for giving her specific signature to facilitate the expert opinion, under challenge in the present Civil Miscellaneous Petition by the present petitioner-the defendant in the court below.

(3.) Challenging the impugned order, Sri Udgata, learned counsel for the petitioner referring to the remand order passed by the lower appellate court and particularly for the observations made therein contended that for the clear direction of the lower appellate court, there was no scope on the part of the trial court to make a departure of the same and granting the relief impugned herein. It is further contended by Sri Udgata that for clear departure of in the direction of the trial court, the decision of the trial court should be interfered and set aside. Referring to the decisions on the principle of resjudicata and applicability of provision contained under Section 73 of the Indian Evidence Act rendered in the cases of Balaswaraswami Varu and another v. Mallidi Dorayya and others, 1972 AIR(AP) 250, State of Uttar Pradesh v. Ram Babu Misra, 1980 AIR(SC) 791, Jahurul Islam v. Abul Kalam and others, 1991 AIR(Cal) 132, Assam State Transport Corporation v. Smt. Michitribala Das, 1994 AIR(Gau) 35, Smt Ramabai and others v. Harbilas and other, 1997 AIR(MP) 90 and in the case of U.P. State Rod Transport Corporation v. State of U. P. and another, 2005 AIR(SC) 446, Sri Udgata, learned counsel contended that the impugned decision remained otherwise bad in law and unless interfered and set aside will create a bad precedent.