SIVAJI SAHA Vs. SHAHMD FARID

JUDGEMENT

(1.) The appellant is tenant for whose ejectment the respondents filed Title Suit No. 184/ 2001 on the grounds set forth in the plaint (copy appended as Annexure-1). The appellant appeared in the suit, filed written statement (copy appended as Annexure-2) and contested the suit. The parties lead evidence in support of their respective cases. The suit was fixed for argument. On behalf of the plaintiffs-respondents arguments were completed. The appellant's argument commenced. During the argument, the appellant's counsel placed reliance on statement made by PW 1 (Plaintiff No. 2) in her cross-examination which was to the effect that the cheques, which were handed over by the appellant, were not encased. The plaintiff filed an application under Section 153 CPC read with Section 151 CPC praying that the words "satya no-hoi" which were omitted to be recorded by the Court, which was stated by the PW 1 during her cross-examination, about which the plaintiffs came to know only on yesterday (i.e. June 6, 2003). The appellant filed an application under Order 19 Rule 2 CPC read with Section 151 CPC to allow him to cross-examine the plaintiff No. 2 to bring out the true facts for effective adjudication of the issues involved. An objection was filed against this application under Order 19 Rule 2. The trial court by order dated August 10,2004 (copy appended as Annexure-11) decided to re-examine PW1 giving liberty to the appellant to cross-examine PW1. The appellant assailed the validity of this order in W.P.(C) No. 7235/04 under Article 227 of the Constitution of India. A learned Single Judge of this Court vide order dated 11.10.2004, which is under challenge in this appeal, held the order dated August 10, 2003 to be a proper order for re-examination of PW 1 with liberty to cross-examine her, limited to the point raised.

(2.) Mr. S. P. Roy, learned counsel appearing for the appellant, strenuously tried to convince us that the learned Judge has committed errors in dismissing the writ petition in not appreciating that the learned court below could not pass such an order. Learned counsel also relied upon the following decisions: (i) Jeet Mohinder Singh V. Harminder Singh, (2004) 6 SCC 26; (ii) Smt. Surindr Kaur V. Karambir Singh, AIR 2004 P &H 337; (iii) Balakrishna Sivappa Shetty V. Mahesh Nenshy Bhakta, AIR 2003 Bombay 293; and (iv) Rudreswar Dihingia V.PunduMura, AIR (1989) (Gau) 118 NOC.

(3.) We asked a question to Mr. Roy that an appeal being creature of statute, how this appeal has been filed without stating the provision under which it is filed against the order passed by learned Single Judge in the writ petition under Article 227 of the Constitution of India.