Gauhati High Court
Dinesh Tiwari vs Khagen Kachari on 14 May, 2015
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM
AND ARUNACHAL PRADESH)
RFA. No. 106/ 2006
Shri Dinesh Tiwari,
S/O Shri Ramayan Tiwari
R/O Halfong, Dist- NC Hills
Assam
.......... Appellant
-Versus-
Shri Khagen Kachari
S/O C.M. Kachari
R/O Halfong, Dist- NC Hills
Assam
.......... Respondent
PRESENT HON'BLE MR. JUSTICE N. CHAUDHURY For the Appellant : Mr. SJ Sharma Advocate.
For the Respondents : None appears.
Date of hearing
Date of Judgment : 14.05.2015
JUDGMENT AND ORDER(ORAL)
The defendant of Title Suit No. 5 of 2005 as appellant has challenged the judgment and decree dated 13.11.2006 passed by the Additional Deputy RFA No.106 of 2006 Page 1 of 7 Commissioner, NC Hills, Halfong on 13.11.2006 decreeing the suit for eviction of the defendant from the suit premises.
2. One Khagen Kachari as plaintiff filed Title Suit No. 5 of 2005 in the court of learned Magistrate, 1st Class at NC Hills on 22.7.2005 stating that he is the absolute owner of the land and houses at Patta No. 88 and Dag No. 244/547 pertaining to Holding No. 333 at Convent Road, Halflong. The suit land stood transferred in his name by Revenue order dated 13.8.2004 and corresponding Mutation Order by Chairman Town Committee , Halflong on 8.10.2004. But defendant encroached into the land and started living with his family for which eviction notices were sent to him on 14.7.2005, however, to no avail. Hence, the suit for ejecting the defendant for delivery of khas possession to the plaintiff. The defendant appeared and submitted written statement denying the case of the plaintiff. It is the specific case of the defendant that Ramayan Tiwari was tenant under the original owner of the suit premises and he being the son of Ramayan Tiwari has been lawful occupant and possessor of the suit premises since 19.7.1965. The suit premises belonged to Dr. Devendra Nath Bharali. In the year 1967, Dr. Devendra Nath Bharali transferred the same to H.R. Brahma of Derhamgi and Ramayan Tiwari continued to occupy the suit premises as a tenant upon enhancement of rent to Rs.140 /- per month. The owner used to collect the rent from the tenant as per their convenience. The defendant prayed that suit of the plaintiff be dismissed with cost. The suit was initially admitted on 22.7.2005 and notices were issued fixing 9.8.2005 for appearance of the defendant. RFA No.106 of 2006 Page 2 of 7 Thereafter on 31.10.2005 after framing of the issues , learned trial court passed order impleading legal heirs of HR Brahma as parties to the suit and directed that summons be issued to them. But without fixing date for filing written statement by said impleaded defendant, the case was fixed for evidence on 12.12.2005. The order sheet does not reveal as to whether notices were at all sent to the legal heirs of HR Brahma and as to whether such notices were served on them. Without waiting for any reply from the impleaded defendant, learned court thereafter recorded evidence of four witnesses of the plaintiff. At that stage the suit was transferred to the court of Sri U Barua, ADC from the file of NM Mahanta, ADC. But seven days thereafter on 20.9.2006, an order appears to have been passed by cancelling the order of transfer and returned the records back to the court of NM Mahanta, ADC at the instance of plaintiff Khagen Kachari. This order does not show as to whether the Deputy Commissioner who passed the order at all gave any opportunity to the defendant before passing the order on 20.9.2006
3. Thereafter, by order dated 12.10.2006, NM Mahanta, ADC ordered for ex- parte hearing against the defendant and 2.11.2006 was fixed as the next date. Order sheet shows that defendant appeared on the date and filed an application for adjournment. It also appears from the order sheet that initially prayer was allowed and next date was fixed on 27.12.2006. The ADC gave his signature thereafter but this part of the order is scratched out and a fresh order is written whereby prayer for adjournment was rejected and the matter was heard behind RFA No.106 of 2006 Page 3 of 7 the back of the defendant fixing 13.11.2006 for judgment. Accordingly, judgment was passed on 13.11.2006 decreeing the suit ex-parte against the defendant.
4. Defendant thereafter preferred this appeal challenging the impugned ex- parte judgment and decree dated 13.11.2006 whereupon the appeal was admitted , records were called for and notices were issued to the plaintiff. Notices have been duly served and the plaintiff put up appearance by engaging counsel.
5. It further appears that legal heirs of HR Brahma filed Misc. Case No. 3247 of 2009 in the present appeal on 1.12.2009 praying for being impleaded as party respondent in the appeal as they are the original owner of the suit property and that neither they nor their predecessor had transferred the suit premises to the plaintiff in any point of time. Although no order has been passed in this misc. case yet from order dated 31.10.2005 passed by the learned trial court , the applicants of the misc. case No. 3247 of 2009 of this court were already impleaded as defendants. Averments made in the present misc. case goes to show that no summon was served on them at trial stage despite order passed by the learned trial court on 31.10.2005 and the matter totally went unnoticed by the trial court.
6. I have heard Mr. SJ Sharma, learned counsel for the appellant. None appears for the respondent although names have been shown in the Cause List. I RFA No.106 of 2006 Page 4 of 7 have perused the lower court records including the order sheet so as to examine regularity of the trial court proceeding.
7. Plaintiff claimed to be owner of the suit premises and on their own showing suit land stood transferred to him from HR Brahma (Document No. II (A) and II(B)). Defendant specifically stated in the written statement that his father was a tenant under the original owner HR Brahma and that plaintiff does not have any right, title and interest to the suit property. On consideration of these averments made in the written statement, the learned trial court framed issues including an issue on right, title and interest of the plaintiff. Now since learned trial court felt that it was necessary to declare the title of the plaintiff under the facts and circumstances of the case and for that purpose impleaded the legal heirs of HR Brahma as defendant in the case proceeding, he ought to have given opportunity to them after service of notice on them. The proceeding went behind the back of the newly impleaded defendants but for which the learned trial court arrived at the finding that plaintiff is the owner of the suit premises. Because of such finding, the legal heirs of HR Brahma rushed to this court by filing Misc. Case No.3247 of 2009 and so it has come to the notice of this court that there was already an order in the record by the trial court impleading the applicants of Misc. Case no.3247 of 2009 as party defendants. The impugned judgment passed before service of notice on these newly impleaded defendants has obviously civil consequence on these newly impleaded defendants as they RFA No.106 of 2006 Page 5 of 7 have been divested of their title virtually without any opportunity to contest. The impugned judgment, therefore, is vitiated by principle of natural justice.
8. Moreover, as is seen from the order sheet that there are striking out of a part of order dated 2.11.2006 without any authentication. Presiding Officer of the court signed the order after allowing adjournment prayer of the defendants and fixing the case for hearing on 26.12.2006. Subsequently, the order has been changed and the prayer for adjournment has been rejected in the absence of the defendants and the case was heard behind his back fixing 13.11.2006 for judgment. Such conduct of the case is not only irregular but also does not disclose that justice has been done to the parties. It is settled law that justice should not only be done but it should seem to have been done. A perusal of order sheet dated 2.11.2006 does not inspire confidence about the regularity of procedure in conduct of the case.
9. Besides, the learned trial court declared the title of the plaintiff over the suit without there being any document of title but merely a certificate issued by revenue authority while document No.1(A) and 2(B) shows that plaintiff got the land transferred from HR Brahma . Even if plaintiff is found to be the owner of land, defendant took a stand that his father was a tenant to the suit land. Even plaintiff as PW-1 claimed that defendant 's father was a tenant under him. Now , the suit premises is situated in Haflong Town for which mutation has been done by the Chairman of the Town Committee on 8.10.2004. This being the position it was incumbent on the part of the learned trial court to see as to whether the RFA No.106 of 2006 Page 6 of 7 case is covered by the provision of Assam Urban Area Rent Control Act. 1972. If it is found that the said Act is applicable in the case in hand, in that event plaintiff would be duty bound to prove the conditions precedent of Section 5 of that Act to get a decree of eviction against the defendant. No such exercise has been made either by plaintiff or by the learned trial court and so trial is vitiated.
10. Since , there is a misc. case in the record vide Misc.Case No.3247 of 2009 on behalf of legal heirs of HR Brahma, the alleged original owner of the land and since ince the learned trial court had already ordered impleadment of these persons on 31.10.2005 it is necessary for the ends of justice to remand the matter to the learned trial court for deciding the matter afresh after affording adequate opportunity to all the parties. The learned trial court shall take steps to see that notices are served on the defendants impleaded by order dated 31.10.2005 and thereupon to proceed with the matter in accordance with law keeping in view the observation made herein. The appeal accordingly stands allowed and the impugned judgment is hereby set aside.
11. Send down the records immediately to the learned trial court to issue notice to the parties for appearance.
JUDGE Nivedita RFA No.106 of 2006 Page 7 of 7