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2009 DIGILAW 134 (GAU)

Kailash Chandra Sarma v. Biraj Krishna Das

2009-02-24

T.NANDAKUMAR SINGH

body2009
ORDER T. Nandakumar Singh, J. 1. Heard Mr. R. Sarma, learned Counsel appearing for the petitioner as well as Mr. S. Sarma, learned Counsel for the respondents. 2. By this revision petition, the petitioner/plaintiff is assailing the order dated 8-5-2008 passed by the learned Munsiff No. 3, Kamrup, Guwahati in Title Suit No. 167 of 2006 debarring the petitioner/plaintiff from cross-examination of the D.W. No. 2, Sri Diju Kalita and D.W. No. 4, Sri Robin Goswami. 3. On hearing the submission of the learned Counsel appearing for the parties, it appears that D.W. No. 3 was partly cross-examined on 28-3-2008 and further examination of the D.Ws. was fixed on 8-5-2008. On 8-5-2008, D.W. No. 3 did not appear before the Court for further cross-examination. On that day a petition No. 940 of 2008 was filed by the respondents/defendants which was supported by a medical certificate that the D.W. No. 3 could not appear before the Court for further cross-examination due to illness. On that day, i.e. on 8-5-2008, the D.W. No. 2, Sri Diju Kalita and, D.W. No. 4. Sri Robin Goswami appeared before the Court. The petitioner/plaintiff instead of cross-examining the D.W. Nos. 2 and 4, who were present before the Court, filed an application for adjournment of the cross-examination on the ground that the petitioner/plaintiff was not prepared for cross-examination of the D.W. Nos. 2 and 4. 4. Section 135 of the Indian Evidence Act, 1872 provides that the order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the Court. 5. Order XVII, Rule 1(2) Proviso (a) of the CPC states that when the hearing of the suit has commenced, it shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds that, for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary. 5. Order XVII, Rule 1(2) Proviso (a) of the CPC states that when the hearing of the suit has commenced, it shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds that, for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary. Further proviso (e) to Order XVII Rule 1(2) of the CPC provides that where a witness is present in Court but a party or his pleader is not present or the party or his pleader, though present in Court, is not ready to examine or cross-examine the witness, the Court may, if it thinks fit record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be, by the party or his pleader not present or not ready as aforesaid. It is also clear under Proviso (b) to Order XVII, Rule 1(2) of the CPC that no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party. 6. From the conjoint reading of Section 135 of the Indian Evidence Act, 1872 and the Provisos (a), (b) and (e) to Order XVII Rule 1(2) of the CPC it is clear that the examination of the witness in attendance is to be continued and in the case of failure on the part of the concerned party to examine or cross-examine the witness appeared before the Court, it is the bounden duty of the Court to record the statement of the witness and pass further order as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness. 7. As stated in Section 135 of the Indian Evidence Act, 1872 that in the absence of any law by the discretion of the Court, it would be the second exercise of discretion of the learned Trial Court that the cross-examination of the witnesses, whose examination had already been started, if possible, shall be allowed to be completed before starting cross-examination of the other witnesses. In the present case, on 8-5-2008 D.W. No. 3, who was examined partly, could hot appear before the Court due to illness for which medical certificate also filed by the respondents/defendants and as such his cross-examination was not possible. In the present case, on 8-5-2008 D.W. No. 3, who was examined partly, could hot appear before the Court due to illness for which medical certificate also filed by the respondents/defendants and as such his cross-examination was not possible. On the very day, i.e. on 8-5-2008, the D.W. Nos. 2 and 4 were present before the learned Court for cross-examination and, in case of failure on the part of the petitioner/plaintiff to cross-examine them, the learned trial Court is. required, to record the statement of the witnesses, i.e. D.W. Nos. 2 and 4 But the learned trial Court instead of recording the statement of the D W. Nos. 2 and 4, i.e. cross-examination, passed the impugned order dated 8-5-2008 debarring the petitioner/plaintiff from cross-examination of the D.W. Nos. 2 and 4. It also appears from the record that the petitioner/plaintiff instead of cross-examining the D.W. Nos. 2 and 4, whose examination-in-chief on affidavit had already filed many months ago and the copies of their examination-in-chief on affidavit were also available to the petitioner/plaintiff some months ago, filed an application for adjournment of the cross-examination of the D.W. Nos. 2 and 4. In such situation, it may not be possible to accept that the petitioner/plaintiff was not ready to cross-examine the D.W. Nos. 2 and 4, who appeared before the Court. 8. In the peculiar facts and circumstances of the case and taking into consideration of the stand taken by the petitioner/plaintiff, the respondents/defendants and also the steps taken by the learned Munsiff No. 3, it would be just and appropriate to allow the petitioner/plaintiff to complete the cross-examination on the D.W. No. 3 and cross-examine the D.W. No. 2, Sri Diju Kalita and D.W. No. 4, Sri Robin Goswami, Subject to payment of cost of Rs. 1,000/- (Rupees one thousand) to the respondents/defendants. It is made clear that the cross-examination of D.W. No. 3 and also the D.W. Nos. 2 and 4 should be completed within a period of one month from the date of appearance of the parties before the learned Trial Court. The parties are directed to appear before the learned Trial Court on 2-3-2009. 9. The revision petition is partly allowed.