Smt. Laxmi Bai Salate and Others vs Smt. Lata Pandeya and Others

Rajendra Menon, Judge

Challenging an interlocutory order dated 20.9.2012, passed by 1st Additional District Judge, Sagar in Civil Suit No. 16-A/2011, rejecting the prayer made by the petitioners in an application filed u/s 138 of the Evidence Act, for recalling certain witnesses for cross-examination, this writ petition has been filed. Respondent No. 1 Smt. Lata Pandeya has filed the suit in question for partition of the property, the parties are related to each other and it is the case of the petitioners that their father Late Anandlal Salate was the sole owner of the property, he has constructed the property on his own, it is not ancestral property and, therefore, the plaintiffs have no right to the suit property. On the contrary, the plaintiffs claimed the suit property to be ancestral property and staked their claim to 1/6th share of the property. Be it as it may be, various defendants are there in the suit and it is seen that defendant Nos. 2 and 3 have given their statement and according to the petitioners as defendant Nos. 2 and 3 have supported the case of the plaintiffs, they want to cross-examine them and, therefore, an application was filed recalling them for cross-examination. This application has been rejected by the court by indicating that defendant Nos. 2 and 3 gave their statement when the petitioners and their counsel were present and at that point of time as they did not seek any permission to cross-examine the witnesses, the witnesses were discharged and now when the case is fixed for final arguments, it is stated that the witnesses cannot be recalled for cross-examination. On such consideration, the prayer has been rejected.

Even though learned counsel tried to emphasize that the Court should exercise discretion in accordance to law and using the inherent powers the witnesses can be recalled for re-examination and in support thereof he invites my attention to the judgment rendered in the case of K.K. Velusamy Vs. N. Palanisamy, , but I am of the considered view that in this case the learned court below has given cogent reasons for rejecting the application and, therefore, interference into the matter at this interlocutory stage in a petition under Article 227 of the Constitution is not called for. Accordingly, granting liberty to the petitioner to challenge the ground, if required, after the suit is finally decided, the writ petition stands dismissed.