Gauhati High Court
Dipu Das vs Dr. Rubul Ch. Das And Anr on 3 December, 2021
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/3
GAHC010251102014
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/157/2014
DIPU DAS
S/O LT. SADANANDA DAS, R/O JAYANAGAR, MAIN ROAD, GHY-22, P.S.
DISPUR,DIST- KAMRUP, ASSAM
VERSUS
DR. RUBUL CH. DAS and ANR.
S/O LT. SADANANDA DAS, R/O JAYANAGAR, MAIN ROAD, GHY-22, P.S.
DISPUR, DIST- KAMRUP, ASSAM
2:RANJU CHANDRA DAS
S/O LT. SADANANDA DAS
R/O JAYANAGAR
MAIN ROAD
GHY-22
P.S. DISPUR
DIST- KAMRUP
ASSA
Advocate for the Petitioner : MR.A BHATTACHARJEE
Advocate for the Respondent : MR.P C GOSWAMI
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 03-12-2021 Heard Mr. U Dutta, learned counsel for the petitioner. None appears for the respondent.
Page No.# 2/3 This application under Article 227 of the Constitution of India challenging the order dated 28.04.2014 whereby the evidence of the defendant which was closed vide an order dated 10.10.2013 was sought to be recalled by the petitioner by way of an application under section 151 CPC was rejected.
I have heard the learned counsel for the petitioner and have also perused the impugned order.
From the impugned order it reflects that the defendant had failed to file his evidence on affidavit on 6 consecutive dates and thereupon on 10.10.2013 the Court below had closed the evidence of the defendant and fixed it for arguments. Thereupon the petitioner filed an application after a period of 4 months on 18.02.2014 for recalling the said order dated 10.10.2013. The Court below taking into consideration the provisions of Order XVII Rule 1 and more particularly, to the proviso that no adjournment shall be granted for more than 3 times to a party during the hearing of a suit have rejected the said application filed for recalling of the order. At this stage it may be relevant herein to mention that when an application is filed under section 151 CPC for recalling of an order, the same is permissible when the said order is sought to be recalled, i. Has been obtained by fraud practiced upon the Court, ii. When the Court is mislead by a party;
iii. When the Court itself commits a mistake which prejudices a party; or iv. A judgment was rendered in ignorance of the fact that the necessary party had not been served at all or had died as the estate was not represented.
The above proposition of law is well settled by the Supreme Court in the case of Budhia Swain & Others Vs. Gopinath Deb & Others reported in (1999) 4 SCC 396.
In the instant case, none of the above grounds exist for exercise of jurisdiction under section 151 CPC for recalling the order dated 10.10.2013 and as such, the Court below was right in rejecting the said application for recalling the order dated 10.10.2013.
Page No.# 3/3 The next question arises as to whether the Court below was also right in passing the order dated 10.10.2013 by closing the evidence of DW for not filing their evidence on affidavit on six consecutive dates.
Taking into consideration the proviso to Order XVII Rule 1 whereby the legislature have mandated that only 3 adjournments can be taken at the time of hearing of the suit by a party and in the instant case, more than six adjournments have been taken, I do not see any ground for interference with the order dated 10.10.2013. Accordingly, the instant petition stands dismissed.
The interim order passed on 21.05.2014 is hereby vacated and the parties are directed to appear before the Court below on 07.01.2022 and the Court shall proceed with the disposal of the suit in accordance with law.
The Registry is directed to bring to the notice of the Court below about this order within 20 days from today JUDGE Comparing Assistant