Gauhati High Court
Dilip Saikia vs Sahdew Sahu And 3 Ors on 19 January, 2022
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GAHC010050752021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/29/2021
DILIP SAIKIA
S/O BHADRESWAR SAIKIA, R/O VILL. BORALIGAON, P.O. BORBHGIA, P.S.
KALIABOR, IN THE DIST. OF NAGAON, ASSAM, PIN 782138
VERSUS
SAHDEW SAHU AND 3 ORS
S/O LATE NEWL SAHU, R/O VILL. DARIGAJI, P.O. BORBHOGIA, P.S.
KALIABOR, IN THE DIST. OF NAGAON, PIN 782138
2:SMTI LAXMI MURA TANTI
W/O SRI KAMAL TANTI
R/O ROUMARI BILL
P.O. MISSA
P.S. KALIABOR
IN THE DIST. OF NAGAON
ASSAM
PIN 782138
3.1:SUMESWAR LOHAR (SON MAJOR)
S/O LATE SABITA MURA LOHAR AND GRANDSONS AND D/O LATE
GUNARAM MURA
R/O VILL. DARIAGAZI
P.O. BORBHOGIA
P.S. KALIABOR
IN THE DIST. OF NAGAON
ASSAM
PIN 782138
MINORS REPRESENTED BY FATHER-MAIN OPPOSITE PARTIES
3.2:JITEN LOHAR (SON MINOR)
S/O LATE SABITA MURA LOHAR AND GRANDSONS AND D/O LATE
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GUNARAM MURA
R/O VILL. DARIAGAZI
P.O. BORBHOGIA
P.S. KALIABOR
IN THE DIST. OF NAGAON
ASSAM
PIN 782138
MINORS REPRESENTED BY FATHER-MAIN OPPOSITE PARTIES
3.3:BABLU LOHAR (SON MINOR)
S/O LATE SABITA MURA LOHAR AND GRANDSONS AND D/O LATE
GUNARAM MURA
R/O VILL. DARIAGAZI
P.O. BORBHOGIA
P.S. KALIABOR
IN THE DIST. OF NAGAON
ASSAM
PIN 782138
MINORS REPRESENTED BY FATHER-MAIN OPPOSITE PARTIES
3.4:SANGITA LOHAR (DAUGHTER MINOR)
D/O LATE SABITA MURA LOHAR AND GRANDSONS AND D/O LATE
GUNARAM MURA
R/O VILL. DARIAGAZI
P.O. BORBHOGIA
P.S. KALIABOR
IN THE DIST. OF NAGAON
ASSAM
PIN 782138
MINORS REPRESENTED BY FATHER-MAIN OPPOSITE PARTIES
3.5:DEBITA LOHAR (HUSBAND OF SABITA MURA)
R/O VILL. DARIAGAZI
P.O. BORBHOGIA
P.S. KALIABOR
IN THE DIST. OF NAGAON
ASSAM
PIN 782138
MINORS REPRESENTED BY FATHER-MAIN OPPOSITE PARTIE
Advocate for the Petitioner : MR. B K BHAGAWATI
Advocate for the Respondent : MR. A GANGULY (R-1,3.1,3.2,3.5))
BEFORE
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HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
19.01.2022 The order dated 25.02.2020, passed by the learned Munsiff, Kaliabor in Title Suit No. 21(K)/2015, is challenged in this civil revision petition filed under Article 227 of the Constitution of India.
2. It is to be noted herein that vide the impugned order, the learned Court below has rejected the petition filed by the petitioner as defendant in Title Suit No. 21(K)/2015, to adduce the evidence of DW-4 and DW-5.
3. The factual background leading to filing of the present petition is briefly stated as under -
4. The respondent No. 1, Shri Sahdew Sahu has instituted a Title Suit, being T.S. No. 21(K)/2015, before the learned Munsiff, Kaliabor for declaration, rectification and injunction. The petitioner as defendant No. 1, contested the Suit by filing a written statement. The defendant No. 2 also contested the Suit by filing her own written statement supporting the plea of the defendant No. 1. The Title Suit was pending since 13.08.2018 for PWs and plaintiff took several dates for PWs and only on 08.02.2019 evidence of PW-1 was filed and thereafter, evidence of PW-2 and PW-3 also filed on a later date and they were cross- examined on 03.08.2019. Thereafter, on 07.09.2019 and 26.09.2019, the matter was fixed for evidence of DW and on 22.11.2019, the evidence of DW-1 was filed and thereafter, the matter was fixed on 13.12.2019, and thereafter the defendant took time for filing of evidence of DW-2 and DW-3 and prayed for another date for filing written evidence of DW-4 and DW-
5. But, the learned Court below allowed the same by imposing a cost of Rs.700/-. Then on 25.02.2020, the learned counsel for the defendant again filed a petition for allowing him further time to submit the evidence of DW-4 and DW-5. But the learned Court below rejected the petition stating that the defendant fail to pay the cost and there is no good ground assigned for further adjournment and accordingly vide order dated 25.02.2020 rejected the prayer and being aggrieved, the present petition has been filed.
5. Heard Mr. B.K. Bhagawati, learned counsel for the petitioner. The respondent side did Page No.# 4/5 not turn up to contest this petition inspite of receipt of notice.
6. Mr. Bhagawati, learned counsel for the petitioner submits that PW-4 and PW-5 are material witnesses and the defendant will suffer serious prejudice, if they are not allowed to examine. Mr. Bhagawati further submits that the ground assigned by the learned Court below for dismissing the petition is not a sound convincing and it affects the right of the defendant and therefore it is contended to set aside the aforesaid impugned order and to allow the defendant to examine the DW-4 and DW-5 in support of his case.
7. Having heard the submission of the learned counsel for the petitioner and I have carefully gone through the record of the learned Court below and also the impugned order. It appears that while filing a written statement before the learned Court below in the Title Suit No. 21(K)/2015, the petitioner has enclosed the list of witnesses, which is annexed as annexure-5 of the petition. So, after examination of the DW Nos. 1, 2 and 3, while the defendant filed the petition for allowing him to examine the DW-4 and DW-5 of the list of witnesses, the learned Court below rejected the same on the ground that the petitioner has failed to deposit the cost imposed on previous date and the ground assigned is not satisfactory as already 6(six) adjournment has been granted.
8. It is to be mentioned herein that fair trial includes fair and proper opportunities allowed by law to prove the case of the parties by adducing evidence in support of their case, is a valuable right and denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and the courts should be jealous in seeing that there is no breach of the same.
9. In the instant case, by denying the opportunity to adduce evidence in support of his case by the defendant the learned Court below had denied his right to fair trial, which is a Constitutional as well as Human Right.
10. In view of the above and also in view of the submission of Mr. B.K. Bhagwati, learned counsel for the petitioner which remains uncontroverted, this Court is of the considered opinion that end of justice will be meted out if the petition be allowed. Accordingly, the impugned order dated 25.02.2020 stands set aside.
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11. It is provided that the petitioner shall appear before the learned Court below within a period of 15(fifteen) days from today and produce a certified copy of this order before the learned Court below and on receipt of the same, the learned Court below shall allow the petitioner to examine the DW-4 and DW-5.
12. In terms of the above, this civil revision petition stands disposed of.
JUDGE Comparing Assistant