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2007 DIGILAW 196 (ORI)

Radhu Mishra v. Akura Apata

2007-03-20

A.S.NAIDU

body2007
JUDGMENT A. S. NAIDU, J. : The order dated 3.8.2004 vide Annexure-6, passed by the learned Civil Judge (JD), 2nd Court, Cuttack in Civil Suit No. 253 of 2002 is assailed in this Writ Petition by the defendant in that suit. 2. The aforesaid Civil suit has been filed by the present opposite party for cancellation of a sale deed. In the said suit a petition was filed on by the plaintiff-opposite party praying to summon the concerned Amin of the office of the Tahasildar, Niali for giving evidence with regard to a report said to have been submitted by him earlier during consolidation proceeding. The Court below by order dated 1.5.2004 rejected the said prayer on the ground that the name of the concerned Amin was not stated in the petition. However, the Court below granted liberty to the plaintiff-opposite party to file a fresh petition. A subsequent petition filed by the plaintiff for the self-same relief was gain rejected by the Court below by order dated 10.5.2004 on some technical ground. Thereafter the plaintiff filed a third petition on 28.6.2004 styling the same as one under Order 16, Rule 1(3) of the Code of Civil Procedure. Again the said petition was rejected by the Court below on the ground that the provisions of law were not correctly mentioned therein. Thereafter a petition was filed furnishing the name of the concerned Amin sought to be summoned to give evidence in Court on the ground that the same would be very much necessary for effectual adjudication of inter se dis¬putes. The Court below allowed the prayer and directed the plain¬tiff-opposite party to deposit a sum of Rs. 300.00 within four days to meet the expenses for service of summon on the said Amin through special messenger. 3. According to the learned counsel for the defendant-petitioner, the very same prayer of the plaintiff-opposite party having been rejected by the Court below thrice, the said Court should not have allowed the relief on the fourth occasion. He stated that entertaining petition after petition for self-same prayer was illegal. It is alleged that the suit is pending for the last five years and only with an avowed oblique motive to delay the hearing the plaintiff resorted to such tactics. 4. The submission of the learned counsel for the defendant-petitioner was strongly repudiated by the learned counsel for the plaintiff-opposite party. It is alleged that the suit is pending for the last five years and only with an avowed oblique motive to delay the hearing the plaintiff resorted to such tactics. 4. The submission of the learned counsel for the defendant-petitioner was strongly repudiated by the learned counsel for the plaintiff-opposite party. It is submitted that due to lack of experience of the learned counsel for the plain¬tiff-opposite party a full-fledged petition could not be filed, for which the earlier petitions filed by the plaintiff-opposite party had been rejected by the Court below. But then for the laches of the counsel a party should not suffer. According to him, in fact the report of the Amin, sought to be proved is available on record and for that purpose the Amin concerned is to be examined in the suit. Considering the matter in correct per¬spective the Court below has allowed the prayer. 5. I have heard learned counsel for the parties at length and perused the materials available on record. This Court feels that only because a petition has been filed quoting wrong provision of law, the same cannot be rejected. Law is no more res integra that if a Court has jurisdiction to pass an order a wrong provision of law cannot stand in the way. Quoting a wrong provision of law in the petition was a technical defect and while rejecting the petition successively thrice, it has subsequently allowed the prayer exercising jurisdiction under the correct provision of law. That apart, as it appears from the impugned order, examination of the concerned Amin as a witness in the suit would facilitate the Court to effectually adjudicate the suit. Further, examination of the Amin to prove his report submitted earlier which is already on record would not cause any prejudice or miscarriage of justice to defendant-petitioner. A discretion having been exercised by the Court below for effectual adjudica¬tion of the suit, this Court feels that it should be slow to interfere with the order by exercising jurisdiction under Article 227 of the Constitution of India, more so because the order is neither absurd nor is there any error on the face of the record. 6. For the aforesaid reasons this Court declines to inter¬fere with the impugned order and dismisses this Writ Petition. 6. For the aforesaid reasons this Court declines to inter¬fere with the impugned order and dismisses this Writ Petition. This Court however directs the Court below to dispose of the Civil suit as expeditiously as possible and grants liberty to the defendant-petitioner to adduce his rebuttal evidence, if so ad¬vised. Petition dismissed.