Calcutta High Court (Appellete Side)
Smt. Ava Rani Roy & Ors vs Smt. Bela Rani Chatterjee & Ors on 27 February, 2019
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
1
27.02.2019.
Item no. 526, 527 & 528.
Court No. 14
ap
C.O. No. 2108 of 2016
Smt. Ava Rani Roy & Ors.
Versus
Smt. Bela Rani Chatterjee & Ors.
With
C.O. No. 2110 of 2016
Smt. Ava Rani Roy & Ors.
Versus
Smt. Bela Rani Chatterjee & Ors.
With
C.O. No. 2111 of 2016
Smt. Ava Rani Roy & Ors.
Versus
Smt. Bela Rani Chatterjee & Ors.
Mr. Bhaskar Ghose, ld. Sr. Advocate,
Ms. Sayani Bhattacharya,
Ms. Sutapa Upadhaya.
..For the petitioners.
Mr. Sadananda Ganguli.
..For the opposite party no.2.
Each of the revisional applications is dealt with separately
by a common order.
These three applications are taken up for hearing together,
as they have been filed by the same defendants in Title Suit No.
259 of 1994. This is most likely, one of the many rounds of
litigation that have reached this Court out of the said suit. The
exasperation of the Court below at the conduct of the defendants
in delaying the disposal of the suit can be understood.
2
In Re: C.O. No. 2108 of 2016
In this application, the plaintiff has challenged five orders
passed by the Court below. The first order is dated 18th February,
2016 whereby an expert commissioner one Sukumar Sahoo,
Advocate of the Alipore Court was sought to be summoned as a
witness but an adjournment was sought on the ground of his
illness.
Across the Bar it is submitted that the summons were not,
in fact, served on the said witness.
The Court rejected such application for adjourning the
matter for securing the presence of Mr. Sahoo as no document
was available to indicate his illness much less Mr. Sahoo's own
statement.
The second challenge is to the order dated 31st March, 2016
is challenged. The said order was passed on an application to
seek recall of the earlier order dated 18th February, 2016. The
application stood rejected.
The next order challenged is dated 4th April, 2016 when the
Court allowed the petitioners to file comprehensive petition for
summoning the said Sukumar Sahoo once again. It is not
understood why this order has been challenged.
The next order assailed is dated 15th April, 2016 when
certain Government witnesses were sought to be summoned by
3
the defendants for proving the R.S. Mouza map. The same was
rejected since it was to the knowledge of the defendants at the
time of filing the written statement that the plaintiff's claim for
encroachment of the property is a public road that can be
reflected in the R.S. Mouza map itself. The defendants waited
until 2016 from the year 1994 to make such application. The suit
was at the relevant time fixed for argument.
The fifth order challenged in this revisional application
dated 15th April, 2016, where once again the said learned
Advocate Sukumar Sahoo and other witnesses were sought to be
recalled and summoned by the defendants to prove his R.S.
Mouza map that was marked for identification since the
document was only produced but could not have been proved by
the defendants' own witness. The Court rejected the said
application as the same was already allowed earlier.
Mr. Ghosh, learned Senior Advocate relied upon a decision
of the Supreme Court in the case of Maria Margarida Sequeira
Fernandes & Ors. - Vs. - Erasmo Jack De Sequeira reported
in (2012) 5 Supreme Court Cases 370. He places reliance upon
paragraphs 38, 41, 42, 51, 52, 70 and 71.
In the said paragraphs, the Hon'ble Supreme Court stressed
on the importance of the Court's role in arriving at the truth in
respect of the lis and rival claims made in a suit between the
4
parties. The Hon'ble Supreme Court reiterated that all efforts
must be made and every opportunity must be given to the parties
to bring on record respective documents to enable the Court to
arrive at an actual truth in the matter after a process of
investigation thereof and examination of documents. It was also
held by the Hon'ble Supreme Court that Section 30 of the Code of
Civil Procedure must be used as and when necessary to enable
parties to bring on record documents to hold the Court to arrive
at the truth.
In Re: C.O. No. 2110 of 2016
In the instant revisional application the same defendants in
the same suit have challenged orders dated 4th April, 2016, 15th
April, 2016 and 26th April, 2016, albeit through another set of
Advocates.
In essence, the applications that were rejected by the said
orders were filed for summoning Government witnesses to prove
public documents particularly the said R.S. Mouza map and also
to call upon Mr. Sukumar Sahoo to depose and prove his report
submitted, as Commissioner appointed by the Court.
The said defendants also applied before the Court to bring
on record six witnesses, namely, the Additional District
Magistrate, Barasat, L.A. Collector, Survey Building, Alipore,
Block Land & Land Reforms Officer and B.K.P., Sodepur and
5
other private respondents for proving the R.S. Records. The said
applications were rejected on the ground of delay and for being outside the scope of Order XVI, Sub-rule 1(4) of the Code of Civil Procedure.
In Re: C.O. No. 2111 of 2016
In this revisional application the same defendants again filed an application before the Court below for correction of the depositions, which was rejected by the order dated 18th August, 2014. The revisional application has been filed two years after the said order. The said revisional application ought to have been rejected at the inception for being hopelessly barred by delay and laches as about two years had elapsed since after the said order and hence the same cannot be entertained as per dicta laid down by this Hon'ble Court vis-à-vis the delay and laches in filing the application under Article 227 of the Constitution of India. The application is hopelessly outside even a stressed reasonable time for challenge of an order passed by a civil court.
Let us now deal with the first two revisional applications and the facts and circumstances, which have been set out hereinabove.
The actual trial had commenced as late as 2013 of a suit filed in the year 1994. Even after the conclusion of trial or at the time when the documents and questions were being marked for 6 identification, the defendants do not wake up to the reality of invoking Section 30 of the Code of Civil Procedure or any other provision to prove the said R.S. Records. They make such an application only three years later.
While it is true that the Commissioner's report is required to be proved by the Commissioner appointed by the Court itself, once such report is sought to be produced in evidence, the presence of the Commissioner ought to have been ensured by the defendants themselves. The said Commissioner is a private individual and Advocate albeit an expert on the Mouza maps.
In any event, the subsequent application calling for public officials of the Registry Office to prove the said R.S. Mouza map would have sufficiently addressed the grievance and/or defence and/or argument sought to be raised by the defendants against the plaintiff. The defendants, however, make a fresh application for issuance of summons calling for Mr. Sahoo to depose evidence before the Court.
Around same time, the same two defendants also make an application for summoning of six different public officials to prove the R.S. Mouza map.
Apart from the apparent and frivolousness of calling both the Advocate Commissioner and also public officials to prove the very same point as regards the veracity of R.S. map produced, 7 this Court finds, in no uncertain terms, that the defendants are guilty of gross and atrocious attempts at delaying the hearing of the suit that had already reached the argument stage after closure of evidence. The conduct of the defendants in delaying wilfully and deliberately to cause prejudice to the plaintiff is writ large in the instant three revisional applications.
In those circumstances, one cannot even remotely find fault with the orders impugned and the exasperation of the Court below trying the suit. In fact, attempts have been made before this Court also to seek time to refer to pleadings in the suit as to when the issues were framed and trial had begun and when the applications were sought to be made including what has been stated in the written statement. It appears also in no uncertain terms to this Court that the issue of R.S. Record to support the claim of defence has not even been canvassed in the written statement.
This is, therefore, a perfect example of abuse of process by the defendants.
The decision relied upon by the revisionists-defendants in the first revisional application i.e. the case of Maria Margarida Sequeira Fernandes (supra) there is indeed emphasis on the Court's role in making all and every attempts to arrive at a truth in the suit pending before it. The importance of invoking the 8 benefit of Section 30 of the Code also makes it incumbent upon the Court of law to issue summons even at a belated stage to the witness to arrive at the truth. However, the facts of the instant case are a clear attempt to delay the disposal of the suit and make an application under Order 16 Rule 1(4) of the Code of Civil Procedure at a miserably belated stage in a suit after nearly 12 years of its inception and three years of commencement of trial. No application has been made u/s 30 of the CPC till date.
However, this Court is conscious of the fact that the truth must be arrived at and the same can be revealed from the R.S. Mouza map in question.
In those circumstances, these revisional applications are disposed of with a direction to the Court below to allow the revisionists to produce the Block Land & Land Reforms Officer, Sodepur and the said Sukumar Sahoo only to prove R.S. Records and the report of the Commissioner. This order shall be treated as a summons.
The said two persons shall be communicated of this order within a period of 72 hours from the date on the letter head of the learned Advocate-on-record of the revisionists.
The witnesses shall only be called to prove the report of the Commissioner and the R.S. Record of Rights.
9
The evidence of the said persons must be concluded both in chief and cross-examination within a period of 15 days after the letter of the Advocate-on-record is served on the said two persons.
The said Block Land & Land Reforms Officer, Sodepur and the said Sukumar Sahoo shall be met with consequences in law if they do not appear before the Court below on the date fixed i.e. 7th March, 2019. The examination-in-chief and cross-examination and confrontation of documents shall be concluded on the same date. The witnesses shall stand discharged at the conclusion of the business hours of the Court on 7th March, 2019.
In view of the disgraceful conduct of the defendants as described hereinabove, the revisional application is disposed of with costs assessed at Rs.51,000/- to be paid by the defendants- revisionists to the plaintiff as a pre-condition on or before the 6th March, 2019. In default of payment of costs, as indicated hereinabove, the evidence in the suit shall be treated as closed. None of the documents marked for identification shall be treated as exhibits. The suit shall be set forth for argument immediately thereafter.
In the event of payment of costs or otherwise, the argument in the suit shall commence on 11th March, 2019 and be concluded by 14th March, 2019.
10
This Court is constrained to pass specific date for the Court below to comply in view of the recalcitrant conduct of the defendants and to some extent may be the plaintiff.
With the aforesaid observations, these revisional applications are disposed of.
Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all formalities.
(Rajasekhar Mantha, J.)