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Judgment
S.K. Mishra, J
This Writ Petition has been preferred by the Petitioner-Insurance Company (Opposite Party No.2 before the Court below) challenging the order dated 29.08.2019 passed in MAC Case No.296 of 2012, vide which its prayer to recall the prosecution witness for his cross-examination was rejected based on a memo filed by the learned Counsel for the Claimant (present Opposite Party No.1) to the effect, he is unable to produce the said witness for his cross-examination.
The case of the Petitioner-Insurance Company is that, being noticed by the Court below, it could not appear in time and could not be able to file its Written Statement on the date fixed. Hence, it was set ex-parte and the Claimant (present Opposite Party No.1) lead his evidence and documents were marked as Exts.1 to 9. Knowing about the said ex-parte order, the Petitioner-Insurance Company appeared and filed an application for setting aside the ex-parte order under Order-9, Rule 7 of C.P.C. After the said Petition was allowed on 23.4.2018 by the Court below, cost being paid in terms of the said order, its Written Statement was accepted and taken into record. There after it came to its notice that during the said period, the claimant (present Opposite Party No.1) has already examined one witness. Knowing about the same, the Petitioner-Insurance Company (Opposite Party No.2 before the Court below) filed an application to recall all the prosecution witness at its cost.
In reply, learned Counsel for the Claimant (present Opposite Party No.1) opposed the said prayer made in the petition filed by the Insurance Company by filing a memo stating therein that he is unable to produce the witness for cross-examination. The Court below, without applying judicious mind, mechanically accepted the said memo, thereby debarred the present Petitioner-Insurance Company to cross-examine the prosecution witness, even though with all fairness, it was indicated in the prayer of the said petition that the said witness be recalled for his cross-examination at the cost of the present Petitioner-Insurance Company.
Though notice was duly served on the Opposite Party No.2, he goes unrepresented. Heard learned counsel for the Petitioner as well as learned counsel for the Opposite Party No-1.
Admittedly, the prosecution witness was examined before appearance of the present Petitioner-Insurance Company (Opposite Party No.2 before the Court below) and the documents were marked as Exts.1 to 9. Thereafter the petition of the Petitioner-Insurance Company was allowed recalling the ex-parte order and it was allowed to file its Written Statement subject to payment of cost.
In view of the above admitted facts on record, this Court is of the view that the Court below ought to have allowed the petition of the present Petitioner-Insurance Company giving it opportunity to cross-examine the prosecution witness. However without assigning any cogent reason, the Court below has mechanically rejected the said petition for recalling the prosecution witness for his cross-examination.
Accordingly, the order dated 29.03.2019 passed by the 3rd M.A.C.T., Dhenkanal in MAC Case No.296 of 2012 is set aside and the Court below is directed to ensure presence of the said prosecution witness at the cost of the Petitioner-Insurance Company (Opposite Party No.2 before the Court below) for his cross-examinations and proceed further in accordance with law. It is made clear, if the claimant fails to produce the said witness for his cross examination, the evidence of the said PW shall stand expunged.
A query being made by the Court, Mr. Khan, learned Counsel for the Petitioner-Insurance Company submits, MAC Case No.296 of 2012 stands posted to 4th December, 2023 for hearing.
In view of the above, the Petitioner and Opposite Party No.1 are directed to appear before the Court below on 4th December, 2023 and produce this order enabling the Court below to act in terms of the direction given above and proceed further in accordance with law. Since the claim application is of the year 2012, the court below shall do well to dispose of MAC Case No.296 of 2012 at the earliest, preferably within a period of six months from 4th December, 2023.
With the aforesaid observation and direction, the Writ Petition stands disposed of.
Urgent certified copy of this order be granted on proper application. Apart from the same, to avoid delay, parties are at liberty to act upon the digitally signed copy of this order available in the Website of this Court.
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