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2005 DIGILAW 390 (ORI)

Sk. Mustafa v. Additional District Judge, Jajpur

2005-06-24

L.MOHAPATRA

body2005
JUDGMENT L. MOHAPATRA, J. : The above two writ applications arise out of the orders passed by the learned Additional District Judge, Jajpur in two different Civil Revisions. Both the Civil Revisions were filed against a common judgment passed by the trial Court rejecting two applications and hence both the writ applications were heard together and are being disposed of by this common judgment. 2. The plaintiff-opposite parties filed an application under Section 151 of the Code of Civil Procedure to send the L.T.I. of Sk. Sahebjan appearing in the Service Book to any fingerprint expert outside the State for comparison with the disputed L.T.I. on the ground that the admitted L.T.I. of Sk. Sahebjan could not be compared with the disputed L.T.I. as modern technicalities of comparison are not available in the State Fingerprint Bureau. The said petition was rejected by the trial Court. Against the said order, the plaintiff-opposite parties filed Civil Revision No.39 of 1997 before the learned Additional District Judge, Jajpur. The revision having been allowed, the defendant-petitioners have filed O.J.C. No. 15812 of 1998. 3. Another applications was filed by the plaintiff-opposite parties before the trial Court under Order 18, Rule 17 of the Code of Civil Procedure for recalling the fingerprint expert for further cross-examination on the ground that the fingerprint expert had not been examined properly on scientific and technical grounds. The trial Court rejected the said petition solely on the ground that recalling the said witness will unnec¬essarily linger disposal of the suit. Challenging that part of the order of the trial Court, the plaintiff-opposite parties filed Civil Revision No.40 of 1997 before the Additional District Judge, Jajpur. Said revision having been allowed, the defendant-petitioners have filed O.J.C. No.18511 of 1998. 4. So far as O.J.C. No.15812 of 1998 is concerned, it appears form the record that the L.T.I. of Sk. Sahebjan which was marked as Ext. Z during hearing of the suit is partially faint, smudged and super-imposed. It was also found that the required number of ridges for a detailed comparison were not available. In absence of the above, the fingerprint expert could not give any opinion and this position is not disputed by either party. Sahebjan which was marked as Ext. Z during hearing of the suit is partially faint, smudged and super-imposed. It was also found that the required number of ridges for a detailed comparison were not available. In absence of the above, the fingerprint expert could not give any opinion and this position is not disputed by either party. There is also no dispute that at one point of time the Court felt the necessity of getting the L.T.I. examined in relation to the admitted L.T.I. by a fingerprint expert for deciding the issue involved in the suit. Since the first fingerprint expert could not give any opinion because of the reasons stated above, I am of the view that the application filed under Section 151 of the Code of Civil Procedure by the plaintiff-opposite parties should have been allowed by the trial Court. On perusal of the revisional order, I find that the revisional Court has given cogent reasons for allowing the revision and directing examination of the L.T.I. by another fingerprint expert who has got the technical know-how in examination of the said L.T.I. which is partially faint, smudged and super-imposed, I, therefore, do not find any reason to interfere with the revisional order. Accordingly, O.J.C. No.18512 of 1998 being devoid of any merit is dismissed. 5. So far as O.J.C. No.15811 of 1998 is concerned, it appear that the application filed under Order 18, Rule 17 of the Code of Civil Procedure for recalling the fingerprint expert for further cross-examination was rejected by the trial Court and in revision, the same has been allowed. Form the order passed by the trial Court it appears that the petition was rejected solely on the ground that there shall be delay in conclusion of the suit. Whether or not there was any necessity of recalling the witness had not been examined by the trial Court at all. The revisional Court allowed the revision on the ground that the counsel who cross-examined the fingerprint expert was not ready on technical aspects of examination of the fingerprint and therefore, the questions relevant for the purpose could not be asked. On the above ground, the revisional Court allowed the application. In this connection, reference may be made to a decision of this Court in the case of Punei Gaya v. Sukadeb Gaya, 33 (1991) O.J.D. 412 (Civil). On the above ground, the revisional Court allowed the application. In this connection, reference may be made to a decision of this Court in the case of Punei Gaya v. Sukadeb Gaya, 33 (1991) O.J.D. 412 (Civil). This Court in the said decision has observed that any stage of the suit means at any time before delivery of judg¬ment. If cross-examination of a particular witness is necessary for ends of justice, an order to recall the witness even after the closure of evidence will be justified. In the present case, the specific stand taken by the plaintiff-opposite parties is that due to non-preparation of the counsel on technical points, the witness could not be examined and therefore prayed for re¬calling the said witness. The revisional Court found the ground to be justified and allowed the application. I, therefore, do not find any reason to disturb the order passed by the revisional Court since for the ends of justice cross-examination of the said witness on recall is necessary. Hence, this writ application also is devoid of any merit because of the reasons stated above and accordingly the same is dismissed. 6. In the result, both the writ applications are dis¬missed. Application dismissed.