Gauhati High Court
Page No.# 1/6 vs Bibek Bhattacharjee And 2 Ors on 12 February, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/6
GAHC010191932024
2025:GAU-AS:1509
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/356/2024
BISWAJIT BHATTACHARJEE
S/O- LATE BINOY KUMAR BHATTACHARJEE,
R/O- 61, BORTHAKUR MILL ROAD, BYE LANE NO-7, ULUBARI P.S, PALTAN
BAZAR, GUWAHATI-07
VERSUS
BIBEK BHATTACHARJEE AND 2 ORS
S/O- LATE BIKASH RANJAN BHATTACHARJEE
2:BEDANTA BHATTACHARJEE
S/O- LATE BIKASH RANJAN BHATTACHARJEE
NO-1 IS R/O C/O DEPALI DS
DOLAIGAON
MAZPARA
BONGAIGAON
3:MAMATA BHATTACHARJEE
W/O- LATE BIKASH RANJAN BHATTACHARJEE
NO 2 AND 3 ARE R/O- H.NO 37
JOYMATI NAGAR
BYE LANE NO-3
PANDU
ADABARI
C/O- GANESH CHANDRA DAS
OPP. JAYANTA SHO
For the petitioner (s) : Mr. J. Das, Advocate
For the respondent (s) : Mr. R. Ali, Advocate
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BEFORE
HON'BLE MR. JUSTICE DEVASHIS BARUAH
ORDER
12.02.2025 Heard Mr. J. Das, the learned counsel appearing on behalf of the petitioner. Mr. R. Ali, the learned counsel appears on behalf of the respondents.
2. This is an application filed under Article 227 of the Constitution challenging the order dated 05.07.2024 passed in Title Suit No.133/2020 by the Court of the learned Civil Judge, (Senior Division) No.2, Kamrup (M) whereby the application filed under Section 65 of the Indian Evidence Act, 1872 read with Section 151 of the Code of Civil Procedure, 1908 which was registered and numbered as Petition No.3680/2023 was rejected has been put to challenge.
3. This Court has duly perused the order dated 05.07.2024 and it appears therefrom that the documents which the petitioner intended produce as secondary evidence were:-
(i) Document No.7- A copy of the mutation order dated 26.11.2019 passed by the Circle Officer. It is the case of the petitioner that the petitioner had the said document but misplaced it, and as such, wanted to produce.
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(ii) Document No.8- An application filed by the plaintiff before the Circle Officer for recalling of the order dated 26.11.2019 which is registered as Misc. Case No.3386/2019 arising out of Mutation Case No.18/2019. It is the case of the petitioner that the petitioner has not been able to obtain the certified copy of the said document and as such would like to produce the photocopy of the certified copy.
(iii) Document No.9- This is a document which is a Memo of Appeal filed by the plaintiff in the month of January, 2020 before the Deputy Commissioner, Kamrup (M) but due to nationwide lockdown could not collect the case number and the dates fixed by the Authority. The petitioner wishes to produce the said photocopy of the said document.
(iv) Document No.11- The ejahar dated 27.04.2020 lodged by the plaintiff before the Paltan Bazar Police Station which the Officer-in-Charge refused to register.
4. It is relevant to observe that as regards the Document No.7, the learned Trial Court directed the defendants who were in possession of the certified copy of the said document, to produce.
5. The question therefore arises before this Court as to whether the learned Trial Court was justified in rejecting the Page No.# 4/6 production of the photocopies of Document Nos.8, 9 & 11 vide the impugned order dated 05.07.2024.
6. It is seen that the petitioner herein has duly mentioned that the Document No.8 is an application filed by the plaintiff/petitioner before the Circle Officer for recalling of the order dated 26.11.2019 which was registered as Misc. Case No.3386/2019 arising out of Mutation Case No.18/2019. It is not understandable why the certified copy of the said document the plaintiff could not procure, that too when the plaintiff has the case number of the proceedings. This Court has perused the application filed by the plaintiff being Petition No.3680/2023 and there is no mention when the plaintiff had applied for the certified copy of the said Application. Besides, law further permits the calling for the records of Misc. Case No.3386/2019 by the Court, subject to the condition being satisfied.
7. The Document No.9 as stated is the Memo of Appeal which the plaintiff claims to have filed in the month of January, 2020 before the Deputy Commissioner, Kamrup (M). The said document is the Memo of Appeal filed by the plaintiff before the concerned Authority. The plaintiff stated that the said Appeal was filed in the month of January, 2020 and on account of the nationwide lockdown, the plaintiff could not obtain the number of the case or the dates fixed by the Authority. It is relevant to Page No.# 5/6 mention that the nationwide lockdown on account of COVID pandemic was announced in the month of March, 2020. At the time of the filing of the Memo of Appeal as alleged is in the month of January, 2020, there was no lockdown. Further, it is not understandable as to why the plaintiff did not have any acknowledgement/receipt number when an Appeal is filed.
8. The Document No.11 is the ejahar dated 27.04.2020 which the petitioner sought to lodge before the Paltan Bazar Police Station which was refused. The said document was refused by the Paltan Bazar Police Station as alleged. So the plaintiff definitely would have the said document in his possession. There is no explanation as to why the plaintiff did not have the original with him.
9. The learned Trial Court vide the order dated 05.07.2024 observed that the Document Nos.8, 9 & 11 neither has signature of the plaintiff nor any seal of the concerned authority. Additionally, the defendant had also stated to have no knowledge about the said documents. It was also observed that these documents were not relevant for deciding the matter in controversy between the parties, and it is under such circumstances, the Petition No.3680/2023 was rejected save and accept as regards the Document No.7.
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10. This Court is exercising the power under Articles 227 of the Constitution and from a perusal of the impugned order passed and the materials on record, this Court is of the opinion that the petitioner has not been able to make out a good ground for interfering in exercise of the powers under Article 227 of the Constitution for which the instant petition stands dismissed.
11. However, the dismissal of the instant petition shall not preclude the petitioner/plaintiff to call for the records pertaining to Document No.8 and produce the original of Document No.9 (if the petitioner has ben original), if so advised before the learned Trial Court subject to filing appropriate application and being allowed in accordance with law. The acceptance and appreciation of the said documents would be made by the learned Trial Court at the appropriate stage as per law.
JUDGE Comparing Assistant