Dhruba Charan Mohanty Vs. Krushna Mohan Mohanty and anr. and Dr. Basant Kumar Mohanty and anr. - Court Judgment

Excerpt:

.....of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the..........be recalled for putting a particular question, thereafter the opposite party, i.e., the petitioner in this revision, should be provided with opportunity to cross-examine.the civil revision is accordingly not admitted and disposed of with the above observation.4. learned counsel for the petitioner states that since that proceeding has been posted to tomorrow for re-examination of p.w. 1, it will not be possible on the part of the petitioner to produce a certified copy of this order before the court below by tomorrow. learned counsel for the opposite parties also agrees to that difficulty of the petitioner. under such circumstance, it is ordered that if the petitioner shall file an application for adjournment of the proceeding for a week, that shall be considered and allowed by learned district judge by adjourning the case for a period of seven days.

Judgment:

ORDER

P.K. Tripathy, J.

P.K. Tripathy, J.

1. This Civil Revision is taken up out of turn from the weekly list on the request of learned counsel for the petitioner with the consent of learned counsel appearing for opposite party Nos. 1 and 2, who are the contesting party in the Court below.

2. Heard.

3. The short and simple question which is to be adjudicated in the application under Section 115, CPC is as to whether learned District Judge, Puri was justified in allowing the application for re-examination of P.W. No. 1 only for the limited purpose to get a categorical answer relating to the date on which he came to knowabout the existence of the 'Will'. Learned counsel for the petitioner states that the entire cross-examination made by the petitioner shall be nullified by that re-examination. This Court does not agree with that contention of the petitioner. A dispute comes to the Court for adjudication in accordance with law. One answer or other allowed to be put for clarifications cannot nullify the claim or defence of a particular party. Apart from that, the discretion which is vested in the Court below for recalling a witness for re-examination has not been exercised by the learned District Judge either illegally or arbitrarily. Therefore, the impugned order does not call for any interference. However, It is made clear that since P. W. No. 1 shall be recalled for putting a particular question, thereafter the opposite party, i.e., the petitioner in this revision, should be provided with opportunity to cross-examine.

The Civil Revision is accordingly not admitted and disposed of with the above observation.

4. Learned counsel for the petitioner states that since that proceeding has been posted to tomorrow for re-examination of P.W. 1, it will not be possible on the part of the petitioner to produce a certified copy of this order before the Court below by tomorrow. Learned counsel for the opposite parties also agrees to that difficulty of the petitioner. Under such circumstance, it is ordered that if the petitioner shall file an application for adjournment of the proceeding for a week, that shall be considered and allowed by learned District Judge by adjourning the case for a period of seven days.