SATYANANDA RATH Vs. NITYANANDA RATH

JUDGEMENT

(1.) HEARD . In this Writ Petition, the Petitioner has assailed the legality of the Order Dated 11.11.2010 passed by the Learned Civil Judge (Sr. Divn.), Kendrapara in O.S. No. 204 of 1989 rejecting Petitioner's application to issue warrant against PW.3 in exercise of power under Order 16, Rule 10(3) of the Code of Civil Procedure for non -compliance of the summons of the Court to appear for further cross -examination.

(2.) PETITIONER is the Plaintiff and Opp. Parties are the Defendants in the suit. It is submitted that in order to prove the will, initially Plaintiff obtained hand summons from the Court for appearance of PW.3, who happens to be a Moharior in Rajkanika and accordingly on 30.9.2010. P.W.3 filed affidavit evidence and he was crossed examined in part. Thereafter, suit was adjourned for further cross examination of PW.3 to 8.10.2010. Though summons was issued to PW.3. On 4.11.2010, he did not appear in Court for further cross -examination. In such circumstances, Petitioner filed petition for issuance of warrant for appearance of P.W.3. It is contended that in passing the impugned order the Learned Court below has erroneously observed that the Plaintiff himself produced P.W.3 as witness. P.W.3 appeared as a witness on behalf of the Plaintiff on 30.9.2010 in response to summons issued by Court. It is further contended that in passing the impugned order the Learned Court below has not taken note of provision under Sub -rule 3 of Rule 10 of Order 16 of the Code of Civil Procedure and thereby has not exercised the jurisdiction vested in it.

(3.) EVIDENCE on behalf of Defendants be deferred till fresh order as directed is passed by the Learned Court below.