Calcutta High Court (Appellete Side)
Bijoy Mistry vs Bijoy Singha Jana & Ors on 3 August, 2018
1 18 & 19 03.08.2018
mb In the High Court at Calcutta Civil Appellate Jurisdiction C.O. No. 2250 of 2018 with C.O. No. 2251 of 2018 Bijoy Mistry
-Vs.-
Bijoy Singha Jana & Ors.
Mr. Sandip Das ...for the petitioner Mr. Suprabhat Bhattacharya ...for the opposite party nos. 1 and 2 C.O. No. 2250 of 2018 and C.O. No. 2251 of 2018 are taken up together since both the applications arise from connected orders.
In view of nature of challenge in both the revisional applications, service on opposite party nos. 3 to 11 is dispensed with.
The grievance of the petitioner, who is the defendant in an eviction suit, in C.O. No. 2251 of 2018 is that, despite having previously directed analogous hearing of the said eviction suit along with a suit for declaration of tenancy rights filed by the petitioner, on the prayer of the opposite party nos. 1 and 2, the trial court refused the petitioner adjournment during adduction of evidence.
2Learned counsel for the petitioner points out that the petitioner, in his application for adjournment, had clearly indicated that the records of the eviction suit had not yet arrived. However, the trial court did not consider such averment and went merely on the conduct of the petitioner in refusing adjournment and closing evidence.
Learned counsel for the opposite party nos. 1 and 2 controverts such argument solely on the premise that, the petitioner has delayed the matter for a long period and ought not to have been given any further leeway in the matter.
Subsequent to such closure of evidence, the petitioner took out another application for recall of the said order closing evidence, which was also rejected by the court below on the basis of the earlier rejection. Such order of rejection of the recall petition is the subject matter of challenge in C.O. No. 2250 of 2018.
Upon hearing both sides, it is evident that on the prayer of the landlords/opposite party nos. 1 and 2, two suits, bearing R.C. No. 01 of 2004 (eviction suit) and Title Suit No. 82 of 2001 (declaratory suit) were directed to be heard analogously. It is also apparent that the records of the eviction suit had not yet arrived for such analogous hearing when the evidence was closed by the trial court, despite adjournment having been sought for by the present petitioner. It is obvious that the records of the suit might 3 have to be referred to at any point of time during examination and cross-examination of witnesses. As such, it was entirely without jurisdiction for the trial court to have refused adjournment during evidence, despite the records of the eviction suit having not arrived. The subsequent consequential order of refusal to recall the previous order of closure of evidence was also, accordingly, without jurisdiction.
Accordingly, C.O. No. 2251 of 2018 with C.O. 2250 of 2018 are allowed on contest, thereby setting aside the orders impugned therein and directing the Civil Judge (Junior Division), Second Court at Diamond Harbour, District-South 24-Parganas to permit evidence to continue from the stage where it was closed by order no. 152 dated December 8, 2017, and to make all endeavour to dispose of R.C. No. 1 of 2004 and Title Suit No. 82 of 2001, being heard analogously in the said court, without granting any unnecessary adjournment to either side, preferably within December 31, 2018.
There will be no order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of all requisite formalities.
(Sabyasachi Bhattacharyya, J.)