Gauhati High Court
Purabi Borah Das vs Kiran Saikia on 15 June, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
CRP 80 of 2017
PURABI BORAH DAS .....Petitioner
-Versus-
KIRAN SAIKIA .....Respondent
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA Advocates for the Petitioners : Mr. M. Biswas, Mr. G.J. Saikia.
Advocates for the Respondents : Mr. G.N. Sahewalla, Sr. Adv.
: Mr. D. Senapati, Md. Aslam, Ms. B. Sarma,
Date of hearing and Order : 15.06.2017
JUDGMENT AND ORDER (Oral)
Heard Mr. M. Biswas, learned counsel for the petitioner as well as Mr. G.N. Sahewalla, learned senior counsel assisted by Ms. D. Swami, learned counsel appearing for the respondent.
2) By filing this application under Article 227 of the Constitution of India, the petitioner had challenged the impugned order dated 20.01.2017 passed by the learned Additional District Judge-II (FTC), Tinsukia in T.S. (Election) No. 33/2015. By the said order, petition No. 2292/2016 filed by the respondent herein (petitioner in the election petition case) was allowed by directing the Returning Officer/sub-Divisional Officer, Margharita to produce the Ballot Papers Accounts submitted by the Presiding Officer and the final result sheet to the court in a sealed packet to enable the petitioner to prepare and file her evidence in affidavit.
CRP 80/2017 Page 1 of 173) The petitioner herein was elected as a Ward Commissioner of ward No. 6 of Dibgoi Town Committee as a candidate of the Indian National Congress, defeating the respondent herein who was a candidate of Bhartiya Janta Party by a margin of one vote. The respondent who was the defeated candidate, filed a proceeding for challenging the election of the petitioner as a Ward Commissioner under the provisions of Section 16 of the Assam Municipal Act, 1956 read with Rule 101, 102, 103 and 104 of the Rules for the Election of Commissioners of Municipal Boards under the Assam Municipal Act, 1956. The said proceeding was numbered as T.S.(Election) No. 33/2015. The petitioner appeared in the said proceeding and contested the suit. The following prayers are made in the said election petition:
a. To admit this petition and to issue notice to the respondents to show cause as to why the petition shall not be allowed. b. To direct the concerned authorities to produce all the papers including all the ballot papers of Ward No. 6 of Digboi Town Committee in sealed condition.
c. To grant leave to the petitioner to adduce evidence in support of this case.
d. To grant to amend the petition or to add further facts as and when required in the interest of justice.
e. To cause verification of the ballot papers by the Ld. Court and to cause recounting of ballot papers after scrutiny of all the ballot papers and to declare the result of the election of Ward No. 6 of Digboi Town Committee afresh and to declare the earlier result as null and void and cancelled.
4) On an earlier occasion, the petitioner had approached this Court by filing W.P.(C) No. 6309/2016 when the learned court below had allowed one interlocutory application whereby the recounting of votes was directed. At that CRP 80/2017 Page 2 of 17 time, this Court by order dated 06.10.2016, had allowed the writ petition, by setting aside the order dated 17.09.2016, inter-alia, on noting that in the election petition itself there was a prayer for recounting and thus, interim prayer was same as that of the final prayer which could have been availed by the election petitioner only when she would have succeeded in the proceedings. In the context of what was stated in the said order, the order impugned therein was set aside, directing the learned court below to take up the matter expeditiously on day to day basis and shall dispose of the same after affording adequate opportunity of adducing evidence of both the sides.
5) Thereafter, by filing petition No. 2292/2016 on 01.11.2016, the respondent herein had prayed before the learned court below to pass necessary orders directing the Returning Officer/Sub-Divisional Officer, Margharita to produce the Ballot Papers Accounts submitted by the Presiding Officers and the Final Result Sheet to enable the petitioner to prepare and file her evidence in affidavit for the ends of justice. The petitioner herein had filed her written objection on 17.11.2016 and the learned Additional District Judge-II (FTC), Tinsukia upon hearing the counsel for both sides, vide an order dated 20.01.2017, allowed the prayer by directing the said documents to be produced in a sealed packet to enable the petitioner to prepare and file her evidence-in-
affidavit. The said order dated 20.01.2017 is assailed herein.
6) The learned counsel for the petitioner submits that as prayer (b) of the election petition contains a prayer to direct the authorities to produce the papers including all the ballot papers of Ward No. 6 of the Dibgoi Town Committee in a sealed condition, on the same ratio of the judgment passed by this Court in the earlier writ petition between the parties i.e. W.P.(C) 6309/2016, as the prayer to produce all the papers is one of the main relief, an order in the said interlocutory application could not have been passed by the learned court below. It is further submitted that in the present case issues were framed by the learned trial court on 16.09.2015. Therefore, under the provisions of Order XVI CRP 80/2017 Page 3 of 17 Rule 1(1) of the CPC (herein referred to as the 'CPC' for short), it was incumbent on the respondent to file a list of witnesses whom they proposed to call either to give evidence or to produce documents not later than 15 days from the date on which the issues have settled. It is submitted that as the application to call for the Ballot Papers Accounts and the Final Result Sheet was filed beyond the limitation prescribed in Order XVI Rule 1(1) CPC, the order allowing the prayer is not sustainable when no list of witness was submitted by the respondent. It is further submitted that unless the list of witness was filed, the respondent could not have obtained an order within the meaning of Order XVI Rule 2 CPC to issue summons securing the attendance of a witness to produce the records.
7) By relying on the provisions of Order XVI Rule 1(3) CPC, it is submitted that unless the sufficient cause is shown for the omission to mention the name of list of witness, a civil court would not have the power to issue summons of production of witness to produce the documents at a belated stage. It is further submitted that the provisions of Order XVI Rule 6 CPC is not in derogation of the provisions of Order XVI Rule 1 CPC and unless the conditions of Rule 1 of Order XVI is complied with, no order to issue summons for production of documents under Order XVI Rule 6 CPC is permissible. In support of his submission, the learned counsel for the petitioner has relied on the following case citations, (i) Vidhyadhar v. Manikrao and another, (1999) 3 SCC 573 , (ii) Gauranga Mandal and Ors. v. Debadas Sarkar, (2012) 5 GLT 144 and (iii) Mange Ram v. Brij Mohan and Ors., (1983) 4 SCC 36. The relevant paragraphs on which he has placed reliance is quoted below:
(i) Vidhyadhar v. Manikrao and another (supra):
"31. These two Rules read together clearly indicate that it is open to a party to summon the witnesses to the Court or may, without applying for summons, bring the witnesses to give evidence or to produce documents. Sub-rule (3) of Rule 1 provides that although the name of a witness may not find place in the list CRP 80/2017 Page 4 of 17 of witnesses filed by a party in the Court, it may allow the party to produce a witness though he may not have been summoned through the Court. Rule 1A which was introduced by the CPC (Amendment) Act, 1976 with effect from 1.2.1977 has placed the matter beyond doubt by providing in clear and specific terms that any party to the suit may bring any witness to give evidence or to produce documents. Since this Rule is subject to the provisions of Sub-rule (3) of Rule 1, all that can be contended is that before proceeding to examine any witness who might have been brought by a party for that purpose, the leave of the Court may be necessary but this by itself will not mean that Rule 1A was in derogation of Sub-rule (3) of Rule 1. The whole position was explained by this Court in Mange Ram v. Brij Mohan and Ors. , in which it was held that Sub-rule (3) of Rule 1 and Rule 1A operate in two different areas and cater to two different situations. It was held:
There is no inner contradiction between Sub-rule (1) of Rule 1 and Rule 1A of Order XVI. Sub-rule (3) of Rule 1 of Order XVI confers a wider jurisdiction on the Court to cater to a situation where the party has failed to name the witness in the list and yet the party is unable to produce him or her on his own under Rule 1A and in such a situation the party of necessity has to seek the assistance of the Court under Sub-rule (3) to procure the presence of the witness and the Court may if it is satisfied that the party has sufficient cause for the omission to mention the name of such witness in the list filed under Sub-rule (1) of Rule 1, the Court may still extend its assistance for procuring the presence of such a witness by issuing a summons through the Court or otherwise which ordinarily the Court would not extend for procuring the attendance of a witness whose name is not shown in the list.CRP 80/2017 Page 5 of 17
Therefore, Sub-rule (3) of Rule 1 and Rule 1A operate in two different areas and cater to two different situations."
(ii) Gauranga Mandal and Ors. (supra):
"11. From the aforesaid judgments of the Supreme Court, it is apparent that Rule 1a enables any party to suit to bring any witness to give evidence or to produce documents without submitting a list of witness and without applying for summons. It also follows that for application of sub-rule (3) of Rule (1), a list of witnesses must have been filed in terms of Sub-rule (3) of Rule 1 and application of sub-rule (3) of Rule 1 cannot arise in a case where no such list of witnesses had been filed."
(iii) Mange Ram (supra):
"8. Sub-rule (1) of Rule 1 of order XVI casts an obligation on every party to a proceeding to present a list of witnesses whom it t proposes to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court. Sub-rule (2) requires that the parties seeking the assistance of the Court for procuring the attendance of a witness must make an application stating therein the purpose for which the witness is proposed to be summoned. Sub-rule (3) confers a discretion on the Court to permit a party to summon through Court or otherwise any witness other than those whose names appear in the list submitted in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list. Rule 1A in its amended form in force since 1977 enables a party to bring any witness to give evidence or to produce documents but this enabling provision is subject to the provision contained in sub-rule (3) of Rule 1 of order XVI. If a CRP 80/2017 Page 6 of 17 reference to Rule 22 of the High Court Rules is recalled at this stage, it merely reenacts sub-rule (2) of Rule 1 of order XVI."
"9. If the requirements of these provisions are conjointly read and properly analysed, it clearly transpires that the obligation to supply the list as well as the gist of the evidence of each witness whose name is entered in the list has to be carried out in respect of those witnesses for procuring whose attendance the party needs the assistance of the Court. When a summons is issued by the Court for procuring the presence of a witness, it has certain consequences in law. If the summons is served and the person served fails to comply with the same, certain consequences in law ensue as provided in Rule 10 of order XVI. The consequence is that where the witness summoned either to give evidence or to produce documents fails to attend or to produce the documents in compliance with such summons, the Court on being satisfied of the service as provided therein and is further satisfied that the person has without lawful excuse failed to honour the summons, the Court may issue is a proclamation requiring him to attend to give evidence or to produce the document at a time and place to be named therein; and a copy of such proclamation shall be affixed in the manner therein provided. Simultaneously, the Court may, in its discretion, issue a warrant, either with or without bail, for the arrest of such person, and may make an order for the attachment of his property for such amount as it thinks fit. Even if thereafter the witness fails to appear, the Court may impose upon him such fine not exceeding five hundred rupees as it thinks fit, having regard to his condition in life and all the circumstances of the case, and may order his property, or any part, thereof, to be attached and sold as provided in Rule 12 of order XVI. In view of this legal consequence ensuing from the issuance of a summons by the CRP 80/2017 Page 7 of 17 Court and failure to comply with the same, the scheme of Rules 1, 1A of order XVI and Rule 22 of the Rules framed by the High Court clearly envisaged filing of a list only in respect of witnesses whom the parties desire to t examine and procure presence with the assistance of the Court. There, however, remains an area where if the party to a proceeding does not desire the assistance of the Court for procuring the presence of a witness, obviously the party can produce such witness on the date of hearing and the Court cannot decline to examine the witness unless the Court proposes to act under the proviso to sub- sec. (1) of Sec. 87 of the '1951 Act' which enables the Court for reasons to be recorded in writing, to refuse to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings. It, therefore, unquestionably transpires that the obligation to supply the list of witnesses within the time prescribed under sub-rule (1) of Rule 1 of order XVI is in respect of witnesses to procure whose presence the assistance of the Court is t necessary. And this ought to be so because the Court wants to be satisfied about the necessity and relevance of the evidence of such witness whose presence will be procured with the assistance of the Court. This not only explains the necessity of setting out the names of witnesses in the list but also the gist of evidence of each witness. If mere omission to mention the name of a witness in the list envisaged by sub-rule (1) of Rule 1 of order XVI would enable the Court to decline to examine such witness, Rule 1A of order XVI would not have omitted to mention that only those witnesses kept present could be examined whose names are mentioned in the list envisaged by sub-rule (1) and who can be produced without the assistance of the Court. Viewed from this CRP 80/2017 Page 8 of 17 angle, Rule 1A becomes wholly redundant. If it is obligatory upon the party to mention the 1 names of all witnesses irrespective of the fact whether some or all of them are to be summoned and even the names of those whom the party desires to produce without the assistance of the Court are also required to be mentioned in the list on the pain that they may not be permitted to be examined, Rule 1A would have given a clear legislative exposition in that behalf and the marginal note of Rule 1A clearly negatives this suggestion. Marginal note of Rule 1A reads as 'Production of witnesses without summons' and the rule proceeds to enable a party to bring any witness to give evidence or to produce documents without applying for summons under Rule 1. If it was implicit in Rule 1A that it only enables the party to examine only those witnesses whose names are mentioned in the list filed under sub rule (1) of Rule 1 whom the party would produce before the Court without the assistance of the Court, it was not necessary to provide in Rule 1A that the party may bring any witness to give evidence or to produce documents without applying for summons under R Rule 1. Rule 1A of order XVI clearly brings to surface the two situations in which the two rules operate. Where the party wants the assistance of the Court to procure presence of a witness on being summoned through the Court, it is obligatory on the party to file the list with the gist of evidence of witness in the Court as directed by sub-rule (1) of Rule 1 and make an application as provided by sub-rule (2) of Rule 1. But where the party would be in a position to produce its witnesses without the assistance of the Court, it can do so under Rule 1A of order XVI irrespective of the fact whether the name of such witness is mentioned in the list or not."CRP 80/2017 Page 9 of 17
"10. It was, however. contended that Rule 1A is subject to sub-rule (3) of Rule 1 and therefore, the Court must ascertain how far sub-rule (3) would carve out an exception to the enabling provision contained in Rule 1A. There is no inner contradiction between sub-rule (1) of Rule 1 and Rule 1A of Order XVI. Sub-rule (3) of Rule 1 of Order XVI confers a wider jurisdiction on the Court to cater to a situation where the party has failed to name the witness in the list and yet the party is unable to produce him or her on his own under Rule 1A and in such a situation the party of necessity has to seek the assistance of the Court under sub-rule (3) to procure the presence of the witness and the Court may if it is satisfied that the party has sufficient cause for the omission to mention the name of such witness in the list filed under sub-rule (1) of Rule 1, the Court may still extend its assistance for procuring the presence of such a witness by issuing a summons through the Court or otherwice which ordinarily the court would not extend for procuring the attendance of a witness whose name is not shown in the list. Therefore, sub-rule (3) of Rule 1 and Rule 1A operate in two different areas and cater to two different situations."
8) Per-contra, the learned senior counsel for the respondent has made a short submission. It is submitted that as the respondent is required to prove his own case, he had merely sought for collection of documents, which is wherein the scope of Order XIII Rule 10 CPC read with provisions of Order XVI Rule 6 CPC. He has submitted that documents on record is the essential for proving her case and ordinarily such a prayer to call for the records ought not to be refused as it the duty of the court to find out the truth and therefore, the procedural aspects of calling for the record should be dealt not in very strict interpretation, but the procedural chain should not act as a fetter for the court so as to prevent it to arrive at the truth. In support of his contention, the learned senior counsel CRP 80/2017 Page 10 of 17 for the respondent has relied on the case of Lakshmi and another v. Chinnammal Alias Rayyammal and Ors., (2009) 13 SCC 25. He has placed reliance on paragraphs 13, 17 to 21.
"13. If bringing on record a document is essential for proving the case by a party, ordinarily the same should not be refused; the Court's duty being to find out the truth. The procedural mechanics necessary to arrive at a just decision must be encouraged. We are not unmindful of the fact that the court in the said process would not encourage any fishing enquiry. It would also not assist a party in procuring a document which he should have himself filed.
17. In a Civil Suit, a document has to be proved. The report of an expert is also required to be brought on record in terms of the provisions of the Indian Evidence Act. Having regard to the provisions contained in Order XIII, Rule 8 of the Code, the Civil Court would furthermore be entitled to substitute the original document by a certified copy. We, therefore, fail to appreciate as to why the said original document could not be called for.
18. We may notice that a Division Bench of the Calcutta High Court in Union of India & Anr. v. The State & Anr. [1961 XLII ITR 753] held that a document may also be called for from the authorities under the Income Tax Act, stating :
"Further, it may be pointed out that Order XIII, rule 10(I) of the Civil Procedure Code does not refer to a judicial proceeding. It refers to a suit or proceeding. Even if the proceeding in connection with the issue of a search warrant under the Foreign Exchange Regulation Act be considered a non-judicial proceeding on the part of the Magistrate, such a non-judicial proceeding would still be within the scope of Order XIII, rule 10(1) of the Civil Procedure CRP 80/2017 Page 11 of 17 Code. In the circumstances, we cannot accept the contention of Mr. Dutta that as there was no proceeding before the Chief Presidency Magistrate the requisition no proceeding before the Chief Presidency Magistrate the requisition under Order XIII, rule 10 of the Civil Procedure Code made by the Income-tax Officer would not be a valid requisition."
19. In Kailash v. Nanhku & Ors. [(2005) 4 SCC 480], this Court has categorically held :
"All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice."
20. In Uday Shankar Triyar v. Ram Kalewar Prasad Singh & Anr. [(2006) 1 SCC 75], it was observed :
"17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a hand- maiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well recognized exceptions to this principle are :CRP 80/2017 Page 12 of 17
i) where the Statute prescribing the procedure, also prescribes specifically the consequence of non-compliance.
ii) where the procedural defect is not rectified even after it is pointed out and due opportunity is given for rectifying it;
iii) where the non-compliance or violation is proved to be deliberate or mischievous;
iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court.
v) in case of Memorandum of Appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant."
21. In view of the aforementioned pronouncements, we are of the opinion that the learned Trial Judge should have acceded to the prayer of the appellants herein."
9) On hearing the learned counsel for both the sides and on perusal of the materials available on record, considering the question raised in the present application, I am of the opinion that the matter can be disposed of at this admission stage to avoid any further delay in the progress of the election petition. It may be pertinent to state that by the order dated 06.10.2016 passed by this Court in W.P.(C) 6309/2016, while allowing the said writ petition, this Court has mentioned in paragraph 8 as follows:
"8. The writ petition stands allowed. The order dated 17.09.2016 is hereby set side. the learned District Judge, to whose court the election petition is pending, shall take up the matter expeditiously on day to day basis and shall dispose of the same after affording adequate opportunity of adducing evidence to both the sides.CRP 80/2017 Page 13 of 17
10) As per the liberty given by this Court granting opportunity of adducing of evidence, the respondent had filed a petition No. 2292/2016 on 01.11.2016 for production of (i) Ballot Papers Accounts submitted by the Presiding Officer and
(ii) the Final Result Sheet. As per the said petition, the same was to enable the petitioner to prepare and file her evidence in affidavit for the purpose of giving evidence in the case. The said prayer was allowed by the impugned order. At this juncture, it would be pertinent to mention that the learned counsel for the petitioner had referred to the order dated 04.04.2015 passed by the learned court below, recording that the sub-Divisional Officer (Civil), Margharita, by a letter informed the court that the ballot papers had been sent to the court.
Therefore, what was now required by the respondent was the Ballot Papers Accounts submitted by the Presiding Officer and the Final Result Sheet.
11) In my opinion, a direction to the Returning Officer/Sub-Divisional Officer, Margharita to produce the ballot papers cannot be read to mean that the said authority was issued a summons in the status of a witness to produce the documents. I am unable to accept the submissions made by the learned counsel for the petitioner in this regard, that the provisions of Order XVI Rule 6 CPC is not in derogation to the provisions of Order XVI Rule 1. In my opinion, I find that the provisions are differently worded, in Rule 1 of Order XVI it is categorically mentioned that the party shall present in case a list of witness whom they proposed to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in court. However, as per the language used in the provisions of Rule 6 of Order XVI CPC, it refers to "any person" may be summoned to produce a document, without being summoned to evidence. Therefore, 'any person', may include a witness under Order XVI Rule 1 CPC, but 'any person' can also include the person who is not called as a witness. Therefore, if any person is directed to produce a document, he cannot be put to position of 'a witness' within the meaning of Order XVI Rule 1 CPC. Hence, in my opinion the provisions of Order XVI Rule 6 is independent, and in addition to and not subservient to the provisions of Order XVI Rule 1 CPC and the Civil Court has CRP 80/2017 Page 14 of 17 the powers to issue direction to anyone to produce a document without any reference to the provisions of Order XVI Rule 1 CPC.
12) Insofar as the further arguments of the learned counsel for the petitioner is concerned, which is that once there is a prayer for main relief in the suit, such relief cannot be granted in an interlocutory application, for which he has referred to the ratio laid down by this Court in his previous writ petition being W.P.(C) 6309/2016. In my opinion, in the earlier round of litigation, the issue was about recounting of votes. Therefore, if a recounting is ordered to be done before hearing or before decision in the main suit, it would amount to fishing out of evidence. If that evidence comes on record, there is nothing more to be proved in a suit or in an election petition. However, the same ratio cannot be applied to further prayers like (b), (c) and (d) of the election petition. Because if that ratio is accepted then by going of the prayer made therein, the learned trial court would not be permitted to allow the amendment of the petition or even to grant permission to the election petitioner to give any evidence in respect of the case because those are also the prayers in the election petition. Therefore, in my opinion, in the present case in hand, it would lead to travesty of justice to accept the argument advanced by the learned counsel for the petitioner by equating the interlocutory prayer for recounting of votes with the other prayers made in the election petition in the present case, which relates to grant leave to the petitioner to adduce evidence in respect of his case, which is contained in prayer (c) of the election petition. As already stated earlier, this Court in W.P.(C) 6309/2016 had granted liberty to the parties to give evidence. Therefore, there is no infirmity in the impugned order, directing the production of Ballot Papers Accounts submitted by the Presiding Officer and Final Result Sheet in a sealed packet to enable the petitioner to prepare and file the evidence in affidavit.
13) Referring to the case of Lakshmi and Ors.(supra), it is apparent that as per the facts narrated in the said case, the Hon'ble Apex Court has approved the CRP 80/2017 Page 15 of 17 decision of the Hon'ble Division Bench of the Calcutta High Court in Union of India v. State, (1961) 42 ITR 753, wherein it was held that a document may also be called for from the authorities under the Income Tax Act. The relevant passage already been quoted above. In view of the said ratio of the Hon'ble Apex Court in the case of Lakshmi and Ors.(supra), notwithstanding that no provisions has been quoted in the petition No. 2292/2016 dated 01.11.2016, but the prayers made therein cannot be said to be a prayer under the provisions of Order XVI Rule 1 CPC.
14) Coming to the citations referred by the learned counsel for the petitioner, the Hon'ble Apex Court in all the three cases were confronted with the issue of summoning of witness with the assistance of the court or to production of witness without summons. The ratio laid down by the Hon'ble Apex Court and this Court in the above cited cases are well settled and are the correct proposition of law, which I have full regard. However, in the present case in hand, as the direction was for issuance of a summon only to produce the documents is not covered by the situation under Order XVI Rule 1 CPC, but covered by the provision of Order XVI Rule 6 as well as Order XIII Rule 10 CPC as appears from the case of Lakshmi and Ors.(supra), the facts of the present case is distinguishable from the facts of the above referred three cases cited by the learned counsel for the petitioner, for which the ratio in those cases are not applicable to the distinguishable facts of the present case.
15) The cumulative effect of my opinion has narrated above, is that the learned court below did not commit any error of jurisdiction warranting interference of this Court under Article 227 of the Constitution of India. Hence, this revision is liable to be dismissed.
16) Accordingly, this revision is dismissed. There shall be no order as to cost.
CRP 80/2017 Page 16 of 1717) The parties are directed to appear before the learned court of Additional District Judge-II (FTC), Tinsukia on 03.07.2017 and seek further instruction from the said learned court.
JUDGE Mkumar.
CRP 80/2017 Page 17 of 17