Priyabrata Roy & Anr vs Akhil Bandhu Roy

Sabyasachi Bhattacharyya, J

The present challenge has been preferred by the defendants in a suit for declaration and injunction. On the prayer of the defendants/petitioners, the examination of an elderly witness was permitted de bene esse.

However, since the plaintiff was going on taking adjournments while cross-examining the said witness, the cross-examination was closed by the commissioner. Thereafter the plaintiff filed an application under Section 151 of the Code of Civil Procedure for permission to complete the cross-examination upon recalling the order of closure. The trial court insisted first for submission of the report by the commissioner and, upon perusal of such report, permitted the plaintiff/opposite party to complete such cross-examination, thereby allowing the application under Section 151 of the Code.

The learned advocate appearing on behalf of the petitioners argues that it will be evident from the commissioner's report that extensive cross-examination was held and upon failure of the plaintiff to complete cross-examination of his own volition, such cross examination was closed. It is further argued that the essence of Order XVIII Rule 16 of the Code of Civil Procedure will be frustrated in the event cross-examination goes on for an indefinite period.

Although there is substance in the submission advanced on behalf of the petitioners that evidence in the nature of de bene esse has to be completed at an early date due to the implicit urgency involved in such cases, since the trial court exercised its judicial discretion to permit cross-examination and directed to complete the same, this court is reluctant to exercise its judicial power under Article 227 of the Constitution of India. However, in the fitness of things, there ought to be a direction to complete the cross-examination within a limited period.

Accordingly, the revisional application bearing C.O. 2727 of 2019 is disposed of without interfering with the impugned order, but directing the trial court to fix a specific date on which the plaintiff/opposite party shall complete the cross-examination of the witness in question. In the event, such cross-examination is not completed on the scheduled date, the trial court shall close further cross-examination of the said witness.

There will be no order as to costs.

Photostat certified copy of this order, if applied for, will be made available to the applicant within a week from the date of putting in the requisites.