JUDGMENT :

In this application under Article 227 of the Constitution, the petitioners being the legal representatives of the original defendant no.4 coming to be substituted as defendant no. 4(a) to 4(d) in T.S. No. 43 of 1991 impeach the order passed by the learned Civil Judge (Senior Division), IInd Additional Court Cuttack, in the said suit rejecting their petition to expunge the evidence of P.W.3 on record for being eschewed from consideration in deciding the suit.

2. It may be stated that one Kasinath was the original plaintiff. On his death, the present opposite parties no. 1 to 5 having came to be substituted, are pursuing the suit.

3. The suit is one for partition and the subject matter of the same are the property described in schedule ‘B’ and ‘C’ of the plaint. In so far as schedule ‘B’ property is concerned, there remains no such dispute with regard to its nature and thus there stands no contentious issue on the score that the schedule ‘B’ property is liable to be partitioned. The dispute centers round the properties described in scheduled ‘C’ of the plaint. When the plaintiffs claim it to be the joint family property liable for partition amongst the members of the family entitling them with their share as per law, these petitioners representing the branch of defendant no.4 with defendants no. 11, 13 to 16 and 17 claim it to be the self acquired and thus exclusive property of Brandaban, one amongst the four brothers being the one of the sons of common ancestor Krushna.

For better appreciation, it may be also stated that when Kasinath’s branch claim the said property as such to be the joint family property liable for partition amongst the members of the family in accordance with the share that they are legally entitled to get, the members of the branch of Brundaban except one seriously contest that factual aspect in further claiming the same as the exclusive property of Brundaban not available in the hands of all the members of other branches of the family. The members of other two branches having been splintered go to support.

4. The hearing of the suit commenced with the examination of the witnesses on behalf of the plaintiffs. The stage arrived when the plaintiffs citing the defendant no.3 as a witness on their behalf brought him to the witness box as P.W.3. His examination-in-chief continued on few days whereby as finds mention in his deposition eleven paragraphs have been so recorded. After that, the defendants supporting the plaintiffs and not contesting the claim as laid by the plaintiffs when declined to cross-examine the said witness, the term came for these petitioners (defendants) to cross-examine. The cross-examination commenced from 20.09.2001. The cross-examination has been made on 10.10.2001, 11.10.2001, 12.10.2001, 16.10.2001, 17.10.2001, 16.11.2001, 20.11.2001, 21.11.2001, 22.11.2001, 23.11.2001, 28.11.2001, 03.12.2001 and 04.12.2001. The cross-examination was made on thirteen dates beginning from third week of September, 2001 to first week of December, 2001.

At this juncture, it may be indicated that after the cross-examination continued on five dates followed by recording of eight paragraphs and then the recording of evidence of P.W.3 stood closed.

It is submitted at the Bar that on one date prior to 16.11.2001 when the witness (P.W.3) was to be further cross-examined as earlier fixed, since there came no response from these petitioners who were then cross-examining, the evidence of P.W.3 had been closed. However, these petitioners again prayed to recall P.W.3 for further cross-examination. It having been permitted the recording of evidence of P.W.3 was taken up on 16.11.2001 first after said recall. Then again it continued on 20.11.2001, 21.11.2001, 22.11.2001, 23.11.2001, 28.11.2001 and 03.12.2001.

Thereafter on account of absence of Presiding Officer the case faced few adjournments and when it was fixed to 04.01.2002, memos were filed intimating the factum of death of that witness in the meantime.

5. In