CRP/2/2005 of State of Sikkim Vs Tenzing Bhutia and Another on 8 December 2005

ORDER

SINC£H` a.J. [Acta.I.

Heard Mr. S.P. Wangdi, learned Advocate General assistedby Mr. Karma Thinley, learned Government Advocate for thepetitioners and Mr. A. Moulik, leaned senior counsel assisted byMr. N.G. Sherpa, leaned counsel for the respondents.

2. The order datedl7.08.2005 passed by the leamed CivilJudge, Namchi in Title Suit No. 7/2005 rejecting the prayer ofthe State-defendants, Petitioners herein for examination of thewitness Shri 8.8. Theengh, Revenue Ofricer-cum-Asstt. Director,Office of the District Collector, South District, Namchi as D.W. isthe subject matter under challenge in this Revision Petition.

3. The facts of the case in a short compass for the purpose ofdisposal of this Revision Petition are as follows: - When the learned Trial Court fixed the case, namely, TitleSuit No. 7/2005 for final argument, the State-defendants made aprayer for allowing them to examine Shri 8.a. Theengh, RevenueOfricer-cum-Asstt. Director, Office of the District Collector, SouthDistrict, Nalnchi by contending inter alia, that there are somedocuments on record which are required to be proved andexhibited by the said witness Shri 8.8. Theengh, who is an •\cpr, important witness for the defendants. However, the leamed TrialCourt rejected the prayer by holding that at such stage of thetrial the said witness cannot be examined as the Trial Courtasked the learned Government Advocate that if he did not wish toexamine the said D.W. 3 as listed in the additional list ofwitnesses and that, at the time of closing of evidence the saidwitness was not examined by the defendants and that being theposition, the same amounts to deliberate omission which cannotbe condoned at that stage of trial. This is the impugned order,the validity of it is questioned by the present petitioners in thisrevision petition.

4. The application dated 17.08.2005 filed by the defendantsspeaks that on careful examination of the records it transpiredthat the witness Shri 8.8. Theengh is yet to be examined andthere are some documents on record which are required to beexhibited by the said witness on behalf of the defendants and theinterest of the defendants would be seriously prejudiced if he isnot allowed to be examined on behalf of the defendants.

5. According to me, the learned Trial Court did not properlyconsider this specific statements made by the defendants in thesaid application dated 17.08.2005, specifically the statementsmade in paragraphs 5 and 6 of it. I am also of the view that thelearned Trial Court had also completely lost the sight of therelated previsions of the law laid down under Section 30 (b) read t.\cgrz EF-I-

with Order XVI of the Code of Civil Procedure while passing theimpugned order. At this stage a question arises as to whetherthe grant of prayer for examination of the said witness Shri a.a.Theengh as D.W. 3, a listed witness shall cause prejudice to theplaintiffs or not. According to me, no prejudice shall cause to theplaintiffs if the said witness is examined inasmuch as reasonableopportunity will be afforded to the plaintiffs to cross-exanine thesaid witness at the time of the recording of the statement of thesaid witness. Secondly, for better appreciation in the matter andfor rendering substantial justice to the parties concerned theexamination of the said witness is called for and that the realpoints in controversy between the parties shall be determined inaccordance with the law, if the said witness is examined. In viewof the above position, the petitioners-State, defendants couldmake out a case to interfere with the related findings of thelearned Trial Court made in the impugned order.

6. For the reasons, observations and disc:ussion made above,this Revision Petition is allowed with a cost of\ks.loo/-(RupeesOne hundred) only, which shall be paid by the petitioners to therespondents within a week. It is made clear that theexamination of the said witness, Shri 8.8. Theengh shall beconfined to the documents namely, Anexures P-6, P-7 and P-8 inC.M.A. No. 33/05 and proof of it only.

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7. I,et a copy of this order be communicated to the learnedTrial Court by the Registry of this Court immediately.

1,cifei( N.S. Sin8h IChief Justice (Acting|08.12.2cO5

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