Calcutta High Court (Appellete Side)
Badal Krishna Maity vs Koustav Kanti Jana on 20 August, 2015
Author: Ashoke Kumar Dasadhikari
Bench: Ashoke Kumar Dasadhikari
1 20th August, 2015 (SKB) In the High Court at Calcutta Civil Revisional Jurisdiction C.O. 605 of 2014 Badal Krishna Maity Versus Koustav Kanti Jana Mr. Sourav Sen ... for the defendant/petitioner.
Mr. Uttiya Roy, Ms. Anima Maity ... for the plaintiff/opposite party.
Order impugned dated 28th January, 2014 passed by the learned Civil Judge (Senior Division) 2nd Court, Contai, Purba Medinipur, allowing the Section 5 application in Miscellaneous Judicial Case No. 12 of 2012 is under challenge in this revisional application.
Learned Counsel appearing for the defendant/petitioner submits that Section 5 application was filed on the basis of Doctors' certificates on a plea that the plaintiff/opposite party was suffering from hepatitis B. He submits except two doctors' certificates nothing was produced. No blood examination report was ever produced and no document was produced in favour of plaintiff's/opposite party's illness. He submits that doctors were managed by the opposite party and that is why certificates were obtained and doctors were brought on dock. He submits that the order impugned should be set aside. He also submits that the plaintiff/opposite party was present before Court below on 28th June, 2005 but he has suppressed this in his application under Section 5 and also in this revisional application. He submits that the plaintiff's/opposite party's application is not bona fide. He has not come with clean hands. Therefore, the order should be set aside.
2Learned Counsel appearing for the plaintiff/opposite party submits that the finding of the Court is based on evidence given by the doctors. He submits that his client did not have any blood test report or any other medical tests or purchase slip of medicines showing treatment of hepatitis B but it has come out on evidence that doctors treated him as a hepatitis B patient and they have also advised the plaintiff/opposite party to take rest.
He submits that the learned Court below after considering the entire matter have imposed a cost of Rs.15,000/- and condoned the delay. He submits that there is nothing wrong in the order and the order passed by the learned Court below directing payment of Rs.15,000/- should deposit in the Court below.
Considered the submissions made by the learned Counsel appearing for the parties. It appears that there is nothing on record to show that the plaintiff/opposite party has suffered hepatitis B. No blood test report, no prescription, no purchase slip of medicines are there in support of his illness. But the doctors have come and given evidence. Although, this Court is not very much satisfied about the evidences given by the doctors and the conduct of the opposite party but this Court is of the view that the opposite party should give an opportunity.
Accordingly, this Court is of the view that the cost should be increased to Rs.50,000/-. In case balance of Rs.35,000/- is to be paid to the defendant/petitioner, in that event, the order of the learned Court below would remain valid. In case the balance amount of Rs.35,000/- not paid, the order impugned would stand set aside. The payment should be made within three weeks from date. In case payment would not be paid within the stipulated time, then the executing Court shall proceed with the case with utmost expeditious.
The revisional application is, thus, disposed of. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.
(Ashoke Kumar Dasadhikari, J.)