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2016 DIGILAW 893 (MP)

Nagar Palika Parishad Bhind v. Ashok Kumar

2016-10-04

J.K.MAHESHWARI

body2016
ORDER 1. This petition under Article 227 of the Constitution of India has been filed being aggrieved by an order dated 10.7.2015 for calling one R. S. Chhari witness of the defendant who submitted his affidavit for cross-examination. In the order impugned, the trial Court has specifically mentioned that looking to the pleading and the evidence brought on record, the said person was appointed as Chief Municipal Officer in front of whom, the house was demolished. The Government has not produced any map or evidence, in their defence to arrive at the conclusion. However, the Court in its opinion, found the evidence of the said person would be relevant, therefore, directed him to remain present before the Court for cross-examination. 2. Learned counsel for the petitioner has strenuously urged that the application was filed under Order 8 rule 7A of the CPC, which provision has already been deleted with effect from 1.7.2002, however, the said application was not maintainable and the jurisdiction exercised by the Court on the application by passing the order impugned is in excess of the jurisdiction which is not conferred on it, therefore, interference in exercise of power under Article 227 of the Constitution of India is warranted in this petition. 3. On the other hand, learned counsel for the respondents, placing reliance on a judgment of the apex Court in the case of K. K. Velusamy v. N. Palanisamy, reported in (2011)11 SCC 275 , has urged that the apex Court has dealt with the same issue and observed that even after deletion of the provisions of Order 18 rule 7A of IPC for further examination, cross-examination or to adduce additional evidence on the material though such provision is already deleted, the power can be exercised under section 151 of the CPC. In that view of the matter if assigning the reason by the Court, the power of section 151 of CPC has been exercised that do not warrant interference by this Court. 4. In that view of the matter if assigning the reason by the Court, the power of section 151 of CPC has been exercised that do not warrant interference by this Court. 4. After hearing learned counsel for the parties and on perusal of the facts of the present case so also looking to the reasoning as assigned in the order impugned by the trial Court, it is apparent that R. S. Chhari was a person appointed as Chief Municipal Officer at the relevant point of time to the subject to which the suit was filed, no clarification either by the council or by the State Government is available with respect to the subject matter of the suit, however, the said witness i.e. Chief Municipal Officer was present on spot has been directed to call for cross-examination in view of filing of his affidavit under Order 18 rule 4 of the Code of Civil Procedure. 5. At this stage, Shri S. P. Jain, learned counsel for the petitioner has stated across the bar that R. S. Chhari has now attained the age of superannuation and Council is unaware regarding his whereabouts, however, the said witness cannot be kept present for cross-examination in the Court, therefore, also the order impugned may be set aside. 6. On perusal of the judgment of K.K. Velusamy (supra), in my considered opinion, in all three stages i.e. for further examination, cross-examination or to adduce additional material or evidence the witness can be calleld by the Court. The Court has exercised the power under section 151 of CPC, however deletion of the provisions of Order 18 rule 7A of CPC from the original text do not warrant interference looking to the reasoning which appear to be judicious in the facts of the case. 7. In view of the aforesaid, if the affidavit has been filed by one of the witnesses of the defendant who is not present for cross-examination, the Court has rightly directed to bring the said witness or to make him available for cross-examination, in my considered opinion, the said power has been exercised under section 151 of CPC exercising the discretion judiciously. In such cases, invocation of power under Article 227 of the Constitution of India is not available to the petitioner. In that view of the matter, this petition is devoid of merits hence it is dismissed. 8. In such cases, invocation of power under Article 227 of the Constitution of India is not available to the petitioner. In that view of the matter, this petition is devoid of merits hence it is dismissed. 8. However, it is observed that in case the whereabouts of the witness who was called for cross-examination is not made available by the defendant then it is the duty of the Court to call him on the details submitted by the parties. S. P. Jain for petitioner; Dwarkadheesh Bansal for respondent No.3; Kamal Jain, Government Advocate for respondent No.4/State.