p. 1 IN THE HIGH COURT OF ORISSA AT CUTTACK C.M.P. No.921 of 2024 Pratimarani Patra … Petitioner Mr. T.K. Mishra, Advocate -Versus- Dillip Hali & others … Opposite parties Mr. A.P. Bose, Advocate (O.P. No.1) CORAM: MR. JUSTICE R.K. PATTANAIK Order No. ORDER 08.05.2025 06. 1. Heard Mr. Mishra, learned counsel for the petitioner and Mr. Bose, learned counsel for opposite party No.1. 2. Instant petition is filed by the petitioner challenging the impugned decision vide order dated 5th August, 2024 passed in C.S. No.570 of 2022 by the learned Civil Judge, Bhubaneswar on the grounds stated therein. 3. Pursuant to the Court’s order dated 24th April, 2025, Mr. Mishra, learned counsel for the petitioner produced copies of depositions of the witnesses examined as P.Ws.1 & 2 before the learned Court below from the side of opposite party No.1 and the same is gone through. 4. Mr. Mishra, learned counsel for the petitioner submits that W.S. was filed with an advance petition before the learned Court below and under the impression that the pleading to be on record, p. 2 hearing of the suit was commenced and proceeded with and finally, upon closure of evidence from the side of opposite party No.1, when an application to adduce evidence from the side of the petitioner was moved, it was declined in absence of any such pleading. The submission of Mr. Mishra, learned counsel is that the petitioner was clearly under the impression that the W.S. was filed with an advance petition, hence, therefore, the learned Court below having taken judicial notice of the same could not have disallowed him from leading evidence upon such an application received under Annexure- 3 series followed by the impugned order dated 5th August, 2024 i.e. Annexure-5. The further submission is that the W.S. was filed within time, when the learned Court below was moved advancing the date of hearing of the suit but thereafter, acceptance of the same was declined on the ground that it was beyond the statutory period prescribed in Order 8 Rule 9 CPC. The contention of Mr. Mishra, learned counsel is that the learned Court below erred in not allowing the petitioner to adduce evidence on the premise that there is no pleading on record, when it had already been filed advancing the suit. While contending so, Mr. Mishra, learned counsel, in support of the contention advanced, relies on a decision in Kailash Vrs. Nanhku and others (2005) 4 SCC 480 and also an order of the Apex Court in Civil Appeal No.3788 of 2022 dated 9th May, 2022 with the submission that the W.S, filed with an advance petition, should have accepted by the learned Court below necessarily with cost being imposed. 5. Mr. Bose, learned counsel for opposite party No.1, on the other hand, vehemently opposed the contention of Mr. Mishra, learned counsel for the petitioner on the ground that mere filing of an advance petition with the W.S. could not have entitled the p. 3 petitioner demanding its acceptance and therefore, learned Court below declined the evidence to be adduced from his side. For the negligence and gross misconduct on the part of the petitioner and for the fact that such an advance petition was never brought on record for hearing and orders, even though, it has been taken cognizance by the learned Court below, the same since was to be relied upon and referred to long after the statutory period is over, the same could not have been entertained and rightly therefore, it was declined vide Annexure-5. 6. In Kailash (supra), the Apex Court, while considering the intent and purport of the Order 8 Rule 1 CPC held the provision to be directory. Such is the settled position of law, which is admitted by Mr. Bose, learned counsel for opposite party No.1. The fact remains, the W.S. was filed with an advance petition before the learned Court below and as it appears, the same was never pressed in to service and remained so, till such time, the petitioner was to lead evidence in the suit. The contention is that such filing of W.S. was within time and limitation had it been accepted by the learned Court below with the advance petition filed. But the W.S. could not be accepted and fairly enough, it was on account of default of the petitioner. The Court further finds that the petitioner cross-examined the witnesses, namely, P.Ws.1 & 2 apparently under the impression that the W.S. was filed. It is contended by Mr. Mishra, learned counsel for the petitioner that the examination of the witnesses from the side of opposite party and cross-examination in the hands of the petitioner is in no way or in any manner inconsistent with the pleading filed and received by learned court below. 7. Having regard to the facts pleaded on record and the submissions of the learned counsel for the respective parties, this p. 4 Court is of the view that the W.S. was though filed before but by inadvertence or mistake on the part of the petitioner, it could not be brought on record. But, the impugned order i.e. Annexure-5 reveals that such filing of the W.S. was with an advance petition shown with an entry in a Register maintained by learned court below. Against the aforesaid backdrop and notwithstanding the fact that hearing of the suit is proceeded to a considerable extent with examination of witnesses, namely, P.Ws.1 & 2, the Court is of the view that the W.S. filed by the petitioner should be subject to cost and liberty in favour of opposite party No.1 to recall any of such witnesses for further examination. The Court reaches at the above conclusion in view of the settled position of law as enunciated in Kailash (supra) vis-à-vis Order 8 Rule 1 CPC and for the view that acceptance of the W.S. of the petitioner could be suitably compensated in terms of cost payable to opposite party No.1. The Court is of the ultimate view that the aforesaid aspects of the case have not been taken cognizance of by the learned Court below, while declining to accept the W.S., hence, therefore, the impugned order at Annexure-5 is liable to be interfered with in the interest of justice. 8. Accordingly, it is ordered. 9. In the result, CMP stands allowed. As a necessary corollary, the impugned order dated 5th August, 2024 passed in C.S. No.570 of 2022 by the learned Civil Judge, Bhubaneswar as at Annexure-5 is hereby set aside with a direction to accept the W.S. of the petitioner allowing the liberty in favour of opposite party No.1 to recall any of such witnesses examined, in the meanwhile and thereafter, to proceed and dispose of the suit as per and in accordance with law. It is further directed that the above order shall be given effect to subject to payment of costs of Rs.5,000/- (Rupees Five Thousand only) to be p. 5 received by opposite party No.1 only. It is observed that the learned Court below shall do well to expedite the closure of the trial at the earliest preferably within a period of two months from the date of receipt of a copy of the order. 10. Issue urgent certified copy as per rules. (R.K. Pattanaik) Judge Alok