ASHOK KR SAHU Vs. BULU KHAN

JUDGEMENT

(1.) THIS application under Article 227 of the Constitution of India is directed against the order dated 02.03.2010 passed by the learned Civil Judge, Sivasagar, in Title Suit No.71 of 2005 rejecting the petition filed by the plaintiffs for calling for certain records and recalling the defendant No.1 for the purpose of further cross-examination.

(2.) I have heard Mr. R.L. Yadav, learned counsel appearing for the petitioners as well as Mr. G. N. Sahewalla, learned senior counsel appearing for the respondent.

(3.) THE plaintiffs filed a petition under Section 10 of the CPC on19.03.2009 for stay of their own suit being Title Suit No.71/05 in view of the pendency of Title Suit No.65/04, which was re-numbered as Title Suit No.124/07. It would appear that on receipt of the said application under Section 10 CPC, the plaintiffs of Title Suit No.124/07 filed a petition on that very date for withdrawal of their suit being Title Suit No.124/07. In fact, on that very date, that is to say, on 19.3.2009 itself, the learned Munsiff passed order permitting the plaintiffs to withdraw the suit in question. THE factum of withdrawal of the aforesaid suit was brought to the notice of the trial Court by the defendant of Title Suit No.71/05 by a petition dated 22.4.09 with a prayer that the petition dated 19.3.09 had become infru-ctuous in view of the subsequent development. THE case was posted for hearing of the aforesaid petition on 18.5.09 and on that date, the plaintiffs of Title Suit No.71/05 filed a petition numbered as 735/09 for calling for the records of Title Suit No.124/07 for the purpose of bringing on record the copy of the plaint, by way of further cross-examination of DW 1. According to the petitioners, there is discrepancy in the stand of the defendant in the written statement and the stand taken by the defendant in the plaint of T.S. No.124/07. THE defendant submitted objection to the said petition No.735/09 contending that re cross-examination is not permissible in law and therefore, the question of calling for the records does not arise at all. A petition being Petition No.1073/09 came to be filed on 14.7.2009 at the instance of the plaintiffs where they had formulated the question that the plaintiffs were going to ask on the recalling of the DW1 for further cross-examination. THE question framed was to the following effect "Whether you stated in the plaint of T.S. No.65/04 (T.S. No.124/07) that the suit land is under the exclusive possession of the plaintiff including his father since 1960". THE plaintiffs also contended that the plea of unsustainability of further cross-examination of the defendant No.1 is not tenable in law.