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2020 DIGILAW 16 (CAL)

Tapas Kumar Dutta v. Piyali Dutta @ Ghosh

2020-01-03

MANOJIT MANDAL

body2020
JUDGMENT Manojit Mandal, J. - This application is at the instance of the petitioner and is directed against the Order No. 59 dated 30.03.2019 passed by the Court of the learned Additional District Judge, 3rd Court, Barasat, in connection with Mat. Suit No. 29 of 2013 thereby rejecting an application filed by the petitioner praying for time to cross-examine the PW 3. 2. The opposite party/respondent instituted the suit for dissolution of marriage against the petitioner under Section 27(1)(b) and (d) of the Special Marriage Act, 1954, being Matrimonial Suit No. 948 of 2013 before learned District Judge, Barasat, North 24-Parganas. Subsequently, the same was transferred to the Court of learned Additional District Judge, 3rd Court, Barasat, for disposal. 3. The petitioner appeared in this suit and contested the same by filing written objection. The matter was duly proceeded on before the learned Additional District Judge, 3rd Court, Barasat. On 02.07.2018, PW 2 and PW 3 were produced and their examinations-in-chief were recorded but the PW 2 and PW 3 were not cross-examined by the learned Advocate appearing for the petitioner. On 30.03.2019 was fixed for crossexamination of PW 2. 4. On 30.03.2019 both the parties of this suit were present. The opposite party/respondent was present on that date along with PW 3. PW 2 did not appear on 30.03.2019. The PW 3 was cross-examined by the petitioner and the petitioner filed an application with a prayer to defer the cross examination of PW 3 for that day only and the said application filed by the petitioner was rejected by the learned Additional District Judge, Barasat, North 24-Parganas. Being aggrieved, this application has been preferred. 5. Having heard the learned Advocates appearing on behalf of the parties and on perusal of the materials on record, I am of the view that the principles of natural justice require that adequate and fair opportunity is to be granted to all the parties to a litigation for cross-examination of witnesses. The absence of opportunity of cross-examination to the petitioner would have certainly caused serious prejudice to the rights of the petitioner as without the cross-examination of PW 3, his evidence would have been held against the petitioner being unchallenged and unrebutted. 6. In my opinion, a chance may be given to the petitioner to crossexamine the PW 3 for the ends of justice. 6. In my opinion, a chance may be given to the petitioner to crossexamine the PW 3 for the ends of justice. But, I am inclined to saddle the application with cost of Rs. 8,000/-(Rupees Eight Thousand) only to be paid by the petitioner to the opposite party. 7. Learned Additional District Judge, 3rd Court, Barasat, is, therefore, requested to fix a date for cross-examination of PW 3 in presence of both the parties and for payment of cost of Rs. 8,000/-(Rupees Eight Thousand) only to be paid by the petitioner to the opposite party. 8. Such date must be fixed within fifteen days from the date of the communication of this order. If on that day the petitioner fails to crossexamine the PW 3, no further chance should be given. The learned Additional District Judge, 3rd Court, Barasat, North 24-Parganas is also requested to proceed with expeditious hearing of the rest of the suit. 9. With the above observation, the present revisional application is disposed of. 10. The parties shall bear their own costs for this revisional application and petitioner shall pay the costs as imposed in this order. 11. Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.