Gauhati High Court
Md. Samsul Hoque Hazarika vs On The Death Of Rezaul Karim Hazarika His ... on 6 February, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
CRP (I/O) No. 37 of 2016
Md. Samsul Hoque Hazarika .....Petitioner
Vs
On the death of Rezaul Karim Hazarika his legal heirs
....Respondents
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA Advocates for the Petitioner : Mr. D. Mozumdar, : Mr. R. Sharma, Mr. H. Deka, : Mr. D. Hazarika Advocates for the Respondent : None appears Date of hearing : 06.02.2017 Date of judgment and order : 06.02.2017 JUDGMENT AND ORDER (Oral) Heard Mr. D. Mozumdar, learned Senior Counsel for the petitioner. Despite service of notice on the respondents No. 1 to 5, no one has entered appearance today when the matter is called.
2. By filing this application under Article 227 of the Constitution of India, the petitioner has challenged the order dated 21.01.2016 passed by the learned Civil Judge, Darrang at Mangaldai in T.S. No. 4/2005, which is renumbered as T.S. No. 2/2013.
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3. The learned Senior Counsel for the petitioner has referred to the order dated 25.11.2013 passed by this Court in CRP (I/O) No. 76/2013. It would be relevant to extract the said order herein:
"Heard the learned counsel for the petitioner as well as the learned counsel for the respondent No. 1.
The petitioner, who is the plaintiff, by the present petition has challenged the order dated 16.2.2013 passed in Title Suit No. 48/2005 (renumbered as TS No. 2/2013) by the learned Civil Judge, Darrang, Mongoldoi in so far it relates to rejection of the prayer for adjournment for cross examination of DWs 1, 2 and
3. Having heard the learned counsel for the appearing parties and upon consideration of the appointed facts and circumstances, I am of the view that ends of justice requires giving one more chance to the plaintiff for cross examination of DWs 1, 2 and 3, subject to payment of cost of Rs. 1000/-.
In view of the above, the revision petition is disposed of directing the learned Civil Judge to fix a date for production of DWs 1, 2 and 3 for cross examination by the plaintiff. It is however, made clear that if despite the presence of DWs 1, 2 and 3 the plaintiff does not cross examine them no further chance shall be granted to cross examine those witnesses.
The parties are directed to appear before the trial court on 12.12.2013 on which date the amount of cost of Rs. 1000/- shall be deposited which shall be released in favour of the defendant.
The revision petition stands disposed of."
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4. It is submitted that pursuant to the order passed by this Court, the suit was fixed on 22.01.2014 for cross-examination of DWs 1, 2 and 3. On the said date although the defendant's witnesses were present, the plaintiff's side instead of cross-examining the DWs, presented an application under Order XVIII Rule 17(A) read with Section 151 CPC for calling of the records of Mutation Case No. 165/99-2000 from the Circle Officer, Mangaldai and also prayed to call the said authority for the purpose of examining him as a witness. While the petitioner/defendant No. 1 filed his objection against the aforesaid petition, on 03.07.2015, the plaintiff's side filed another Petition No. 1104/2015 with a prayer to consider the hereinbefore mentioned application under Order XVIII Rule 17(A) to be a petition under Order VII Rule 14 CPC. The petitioner/defendant No. 1 had filed his written objection against the aforesaid petition and during the pendency of those applications, on 04.08.2015, the plaintiff filed yet two other application under Order XI Rule 1 and 2 to allow them to serve interrogatories on the petitioner/defendant No. 1. This petition was entertained although the evidence of the PW was already over evidence-on-affidavit of DWs were filed and the case was filed for cross-examination of DWs 1, 2 and 3. The petitioner filed objection to the said application also and those applications could not be taken up for hearing by the court of learned Additional District Judge, Darrang. In the meanwhile the suit was transferred from the court of Additional District Judge, Darrang to the court of Civil Judge, Mangaldai for disposal, which was done by the Page 3 of 8 order dated 29.04.2015 passed by the Additional District Judge, Darrang. The suit was then fixed for cross-examination of the PWs and on 23.03.2015 the plaintiff's side once again prayed for adjournment/ deferment of the cross-examination, which was allowed. For one reason or another, the suit remain pending and ultimately by the impugned order dated 21.01.2016 all the four hereinbefore referred applications/petitions filed by the plaintiff's side was allowed.
5. Moreover, insofar as the adjournment application, which was numbered as Petition No. 524/2015 is concerned, the learned Civil Judge, Darrang had observed in the impugned order that the said application has become infructuous. It is the common order dated 21.01.2016 passed in all the aforesaid four petitions, the legality and validity which is challenged in the present revision.
6. In view of the order dated 25.11.2013 passed by this Court in connection with CRP (I/O) No. 76/2013 it was incumbent upon the learned Trial Court to follow the said order by the letter and in spirit. This Court had made it clear in the said order that:......."if despite the presence of DWs 1, 2 and 3 the plaintiff does not cross examine them no further chance shall be granted to cross examine those witnesses." The said order was passed under Article 227 of the Constitution of India, consequently, it was not within the power of the learned Civil Judge and or the learned Additional District Judge who were in seisin of the matter in the relevant part of time to ignore the said revisional order dated 25.11.2013 passed Page 4 of 8 by this Court to defer the cross-examination of DWs 1, 2 and 3 on any grounds whatsoever.
7. This Court is of the view that if the impugned order dated 21.01.2016 is allowed to stand, it will not only have the effect of negating the revisional order dated 25.11.2013 but it would amount to reopening the plaintiff evidence consequent to along with respondent to file additional documents under Order VII Rule 14 CPC and by allowing service of interrogatories on the petitioners, which cannot be permitted in this stage when the evidence of PWs is already over and evidence on affidavit by DWs 1, 2 and 3 have already been filed.
8. The provisions of Order XI relate to discovery and inspection and under the scheme of Civil Procedure Code the said order of discovery and inspection applies the stage of evidence in a suit. The purpose of discovery of interrogatories is to enable any party to use in evidence any one or more answers or any part of the answer of the opposite party and thereby the veracity of such answers are tested by oral cross examination of the witness as provided under the provisions of Order XI Rule 1 and such interrogatories are subject to the other relevant provisions of Order XI Rule 2 to 11 and as per the provisions of Order XI Rule 22 CPC, such interrogatories can be used as evidence in trial. Therefore, after the evidence of PWs have been closed, the service of interrogatories at this stage of cross-examination of DWs would highly prejudice the plaintiffs whose evidence is already been closed. It is found that the learned Civil Judge, Darrang failed to exercise his jurisdiction in a proper manner Page 5 of 8 while dealing with the issue of calling of documents and service of interrogatories on the plaintiff after the evidence is closed.
9. This Court also observed from the impugned order that the revisional order dated 25.11.2015 as passed by this Court was also pressed by the petitioner/defendant's side and the learned Civil Judge, Darrang took notice of the said order by reflecting the same in certified copy of the order in page 4 thereof. It has been recorded as follows:
Learned counsel for the defendant, has brought to court's notice, another petitioner bearing No. 524 dated 23.03.2015 filed by the plaintiff on which, no order has been passed yet. I have gone though the said petition and the relevant order passed by the Court of Hon'ble Additional District Judge on the said date. Perusal of the order reveals that, on that particular day, 2(two) defense witnesses were present. It is pertinent to mention here that, Hon'ble Gauhati High Court, in CRP(I/O) 76/2013, passed an order on 25.11.2013 directing this court, to fix a date for production of DWs 1, 2 and 3 for cross-examination by the plaintiff. It was further ordered, that, if despite presence of the said DWs, the plaintiff does not cross-examine, then, no further chance shall be granted to cross-examine those witnesses.
On 23.03.2015, all the two DWs were present, before the Court for their cross examination, but, the plaintiff side filed the said petition No. 524/2015, praying for adjournment. The particular order dated 23.03.2015, does not show, any, decision, on the said petition No. 524/2015. By the said order, Hon'ble Additional District Judge, had sent the case record, to the Hon'ble District and Sessions Judge, Darrrang , for its withdrawal of the same and to make necessary Page 6 of 8 order, fixing 29.04.2015. The petition No. 524/2015, remained, without order and the case, automatically was adjourned to 29.04.2015, for the transfer order. On 29.04.2015, Hon'ble District Judge, Darrang, made this case over to this case.
Since, the suit by virtue of the transfer order was automatically, deferred to 29.04.2015. As such, petition No. 524/2015, had become infructuous. Hence, no question of passing of any order on the said petition arises.
Since, the suit got automatically deferred, without any fault, of the plaintiff, in my opinion, the plaintiff shout have another chance of cross examination of the defense witnesses, when, they appear before the Court, as per direction of the Court, for ends of justice.
10. It appears that the order passed by this Court was treated in a very cavalier manner and which cannot be countenanced and/or approved by this Court in any view of the matter. This Court finds that all the above referred applications, i.e. application under Order XVIII Rule 17(A) read with Section 151 CPC, Petition No. 1104/2015 to treat the said petitioner as application under Order VII Rule 14 CPC, petition under Order XI Rule 1 and 2 and Petition No. 524/2015 could not have been accepted as a valid ground by the learned courts below to defer the cross-examination of DWs 1, 2 and 3. Therefore, this Court is inclined to interfere with the impugned order dated 21.01.2016 passed by the learned Civil Judge, Darrang at Magaldai in T.S. No. 48/2005 (which was renumbered as T.S. No. 2/2013 before the court of learned Additional District Judge, Darrang at Mangaldai).
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11. Therefore, the said order is hereby set aside and quashed and consequently, (i) Petition No. 1104/2015 dated 03.07.2015, (ii) Petition No. 2/2014 dated 22.01.2014 filed under Order XVIII Rule 17(A) read with Section 151 CPC, allowed to be considered as petition Under Order VII Rule 14 CPC read with Section 151 CPC, (iii) Petition No. 1256/2015 dated 14.08.2015 Under Order XI Rule 1and 2 read with Section 151 CPC,
(iv) Petition No. 1255/2015 dated 14.08.2015 under Order XIII Rule 10 read with Section 151 CPC and (v) Petition No. 524/2015 dated 23.03.2015 are all dismissed. In terms of the order dated 25.11.2013 passed by this Court in CRP (I/O) No. 76/2013, the evidence of the DWs 1, 2 and 3 would stand closed as the plaintiff's side has forfeited their right to cross- examine the said witness.
12. Needless to say that as the DW. 1 was partly cross-examined, the same shall remain on record.
13. As the respondent's side had remained absent today when the matter was called. The petitioner shall appear before the Trial Court on 01.03.2017 to take further instructions from the Trial Court.
14. The Revision stands allowed. There shall be no order as to cost.
JUDGE Mkumar/ Page 8 of 8