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Judgment
10 paragraphs · 462 wordsK.R. Mohapatra, J
This matter is taken up through hybrid mode.
Order dated 28th January, 2023 (Annexure-1) passed by learned Additional Senior Civil Judge, Baripada in C.S. No. 312 of 2017 is under challenge in this CMP, whereby an application to produce the case record in T.S. No.217 of 2002 for confrontation to P.W.1 has been rejected.
Mr. Bose, learned counsel for the Petitioners submits that C.S. No. 312 of 2017 has been filed for declaration and other consequential relief. T.S. No.217 of 2002 was filed by the present Petitioners for partition. During cross-examination, P.W.1 had deposed at para-19 as under:
“19. I cannot say if my father had filed T.S. 217/2002 regarding my purchased land at Baripada. I cannot say if the said suit for partition was dismissed. I do not know if I had filed a compromise petition in that case. I cannot say if I had signed on the compromise petition. I can say if I see the said documents.”
3.1 As it is stated by P.W.1 that he could say about his signature, if he sees the documents, an application was filed by the Petitioners to call for the case record in T.S. No.217 of 2002, which was rejected. It is submitted by Mr. Bose, learned counsel for the Petitioners that in the compromise petition filed in T.S. No.217 of 2002, signatures of the Defendants-Petitioners and the Plaintiff in the present suit (C.S. No.312 of 2017) are available. Thus, in all fairness, learned trial Court should have called for the said case record, which is available in the record room of the District Court. It is further submitted that the petition was rejected only on the ground that similar such application filed on 28th July, 2022 has been rejected by learned trial Court. In fact, no such application was ever filed by the Defendants-Petitioners in C.S. No.312 of 2017. The same is an error of record. As such, the impugned order under Annexure-1 is not sustainable.
Taking into consideration the submission made by learned counsel for the Petitioners, this Court is of the considered opinion that since the Petitioners raise a factual dispute stating that no application of similar nature as mentioned in the impugned order was filed earlier, the same should be brought to the notice of the Court by filing appropriate application.
Accordingly, the CMP is disposed of with a direction that in the event the Petitioners file an application to recall the order dated 28th January, 2023 (Annexure-1) passed by learned Additional Senior Civil Judge, Baripada in C.S. No.312 of 2017, the same shall be considered in accordance with law, giving opportunity of hearing to the parties concerned.
Urgent certified copy of this order be granted on proper application.
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