Gauhati High Court
Durgadhar Kakati vs Sonamoni Kakati And Ors on 6 August, 2015
Author: Suman Shyam
Bench: Suman Shyam
IN THE GAUHATI HIGH COURT
(High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
RSA No. 11/2004
Durgadhar Kakati ......Appellant
VERSUS
Sonamoni Kakati & Ors. ......Respondent
BEFORE HON'BLE MR. JUSTICE SUMAN SHYAM For the Appellant : Ms. T. Goswami, Advocate For the Respondent : Mr. S.K. Ghosh, Amicus Curie Date of hearing and judgment : 06-08-2015 Judgment and Order (Oral) Heard Ms. T. Goswami, learned counsel appearing for the appellant. Also heard Mr. S.K. Ghosh, learned amicus curie appointed by this Court for representing the case of the respondents.
2. This second appeal has been preferred against the judgment and decree dated 08-09-2003 passed by the learned Civil Judge (Sr. Div.), Sivasagar in Title Appeal No. 07/2002 whereby the judgment and decree dated 27-06-2002 passed by the Civil Judge (Jr. Div.), Sivasagar in Title Suit No. 63/1995 was reversed.
3. The brief fact of the case is that the plaintiff is a responsible person who has married wife having grownup children. Smti. Sonamoni Kakati i.e. the respondent/ defendant No. 1 had filed a criminal case bearing No. 950/1985 in the court of learned Chief Judicial Magistrate, Sivasagar claiming maintenance RSA No. 11/2004 Page 1 of 10 against the appellant/ plaintiff alleging that the plaintiff had cohabited with the defendant No. 1 by giving false assurance of marriage, as a result of which a girl child was born on 08-10-1985. When the defendant No. 1 had asked the plaintiff to maintain her minor daughter i.e. the defendant No. 2, the plaintiff had refused to comply with the same. Taking such plea the defendant No. 1 had instituted the aforesaid criminal case under Section 125 Cr.P.C. seeking maintenance. In connection with the aforesaid case the defendant No. 1 adduced evidence by examining herself and three other witnesses whereas the plaintiff had examined himself and the doctor of Sivasagar Civil Hospital in support of his plea that the plaintiff had undergone vasectomy operation on 08-03-1977 and as such was not capable of producing any child, in around the time the defendant No. 2 has been alleged to have been born out of a physical relationship between the defendant No. 1 and the plaintiff.
4. After a complete trial, the learned Chief Judicial Magistrate, Sivasagar had passed order dated 19-12-1988 granting maintenance allowance of Rs. 250/- per month to the defendant No. 2, while refusing the maintenance in respect of the defendant No. 1. The plaintiff had preferred a revision against the said order in the court of learned District and Sessions Judge, Dibrugarh who had dismissed the revision petition by the judgment and order dated 24-01-1992 passed in Crl. Revision No. 14(1)/ 1989 thereby upholding the order of maintenance passed by the learned Chief Judicial Magistrate, Sivasagar. Thereafter, the plaintiff had filed Title Suit No. 28/1992 (re-numbered as Title Suit No. 63/1995) before the court of learned Civil Judge (Jr. Div.) No. 1, Sivasagar, inter alia, praying for declaration that the defendant No. 2 is not a illegitimate child of the plaintiff born out of the cohabitation of defendant No. 1; that the plaintiff never cohabited with RSA No. 11/2004 Page 2 of 10 the defendant No. 1; for a decree of permanent injunction restoring the defendant No. 2 from claiming any maintenance from the plaintiff and for other consequential relief.
5. Upon receipt of the summons in connection with the aforementioned title suit, the defendants had contested the same by filing their written statement. Beside questioning the maintainability of the suit by taking the formal plea, the defendants had also categorically denied the averments made in the plaint and reiterated the version given before the court of Chief Judicial Magistrate, Sivasagar in connection with Crl. Case No. 950/1985. The defendant No. 1 had emphatically stated that in the month of August, 1980 the plaintiff and the defendant No. 1 had mutually exchanged garlands and got themselves married with each other pursuant whereto both had gone to Dikom where they had lived for a month in the house of one of his relative from where the Sivasagar Police arrested him in connection with G.R. Case No. 1396/1980 under Section 366 IPC and kept him in police custody. Subsequently, the plaintiff was released on bail on a promise of marrying the defendant No. 1 and keeping her as his wife which agreement was made with the father of the defendant No. 1, as a result of which the charges were dropped against the plaintiff by the Sivasagar Police. The defendants had, therefore, prayed for dismissal of the suit filed by the plaintiff.
6. Based on the pleadings of the parties, the learned Trial Court has framed as many as four issues which are as follows:
1. Is there cause of action for the suit?
2. Whether the plaintiff and defendant No. 1 used to live together as husband and wife since 1980 and whether defendant No. 2 is their daughter?
3. Whether the plaintiff got himself vasectomised successfully in 1977?RSA No. 11/2004 Page 3 of 10
4. To what reliefs are the parties entitled?
7. The plaintiff side had adduced evidence by examining three witnesses including the plaintiff himself who were also cross-examined and discharged. The defendant side failed to lead any evidence. It may be mentioned here that it appears from record that evidence pertaining to Crl. Case No. 950/1985 was brought on record in connection with the aforementioned title suit. Thereafter the learned Trial Court had decided the issue No. 2 and 3 in favour of the plaintiff holding that the plaintiff had never lived as husband and wife with the defendant No. 1 and that the defendant No. 2 was not their daughter. It was further held that the plaintiff had undergone a vasectomy operation on 08-03-1977 and therefore, he was not capable of producing children, even if he had cohabited with the defendant No. 1. On the basis of such finding the learned Trial Court had decreed the suit filed by the plaintiff.
8. Being aggrieved by the judgment and decree passed by the learned Trial Court the defendant No. 1 as appellant has preferred Title Appeal No. 11/2002 before the court of learned Civil Judge (Sr. Div.), Sivasagar. After hearing learned counsel for the parties, the lower Appellate Court had allowed the appeal filed by the defendant No. 1 thereby reversing the judgment and decree passed by the Trial Court.
9. Being aggrieved by the judgment and decree passed by the learned lower Appellate Court the plaintiff as appellant has preferred the instant second appeal before this Court, which was admitted for hearing on the basis of following substantial questions of law:
(1) Whether the judgment of the Civil Judge (Sr. Divn.) is liable to be set aside on the ground of his findings based on no evidence?RSA No. 11/2004 Page 4 of 10
(2) Whether the learned Judge was right in relying on the statement of witnesses given on the judgment of the Criminal Court though they were not part of the record of the suit?
(3) Whether the learned Judge was right in giving his findings without considering the evidence of the plaintiff side and specially when it was a judgment of reversal?
10. Ms. T. Goswami, learned counsel for the appellant submits that the learned Trial Court had decided the issue No. 2 and 3 correctly and in accordance with the evidence available on record. There was no justification for the lower Appellate Court to reverse the decree without citing any proper reason. She, therefore, submits that evidence on record will go to show that the plaintiff has been able to prove and establish the fact that he had undergone vasectomy operation on 08-03-1977 and the said fact had also been testified by Dr. B.C. Kakati who had appeared as a witness and confirmed that he had conducted the operation on the appellant/ plaintiff. Since the defendant side has failed to lead any evidence before the Trial Court, hence, an adverse presumption was required to be drawn against the defendant No. 1. Such being the position the learned Trial Court had rightly decreed the suit filed by the plaintiff and there was no justification for the lower Appellate Court to reverse the finding by placing reliance on the records of Crl. Misc. Case No. 950/1985 before the court of Chief Judicial Magistrate, Sivasagar.
11. Since the respondent had failed to appear despite service of notice and having regard to the sensitive nature of issues involved in the appeal, this Court had earlier appointed Mr. S.K. Ghosh as an amicus-curie to represent the respondents. Mr. Ghosh submits that the findings of the Trial Court on issue No. 2 and 3 are completely dehors the evidence and, therefore, liable to be held as perversed. He, further, submits that the learned lower Appellate Court had RSA No. 11/2004 Page 5 of 10 elaborately discussed the evidence available on record so as to draw a conclusion adverse to the plaintiff in respect of issue No. 2 and 3 thereby reversing the judgment and decree passed by the Trial Court. Such finding of fact recorded by the First Appellate Court is based on evidence available on record and the conclusion drawn is in accordance with the settled principles of law. The substantial questions of law urged by the plaintiff does not arise for adjudication on the facts and circumstances of the present case. Mr. Ghosh, further submits that although no such issue has been framed, yet, from a bare perusal of the pleadings contained in the plaint it would be apparent that the suit filed by the plaintiff is barred under Article 58 of the Limitation Act, the same not having been filed within the period of three years with effect from the date of accrual of the right to sue. On the basis of such pleadings Mr. Ghosh submits that there is no merit in this appeal and same is liable to be dismissed.
12. I have considered the submissions made by and on behalf of the parties and have also perused the record. On the scrutiny of the judgment and order passed by the learned Trial Court, it is apparent on the face of the record that the findings recorded by the court below in respect of issue No. 2 is not based on evidence on record but the conclusions are solely on account of the fact that the defendant No. 1 had failed to establish her case by leading evidence. Further, as regards the findings recorded by the Trial Court in respect of issue No. 3, the same also does not appear to be based on cogent evidence available on record. On the contrary, while discussing the issue No. 2, the learned lower Appellate Court had not only considered the evidence available on record but has also taken note of the proceeding in connection with the Criminal Case No. 950/1985. It is a fact that the plaintiff had examined Dr. B.C. Kakati in connection with the RSA No. 11/2004 Page 6 of 10 injunction application, who had come to testify. As per entries made in Exhibit-1, he appears to have conducted the vasectomy operation upon the plaintiff. However, the learned court below had categorically recorded that the Dr. B.C. Kakoti could not even identify the plaintiff. The Appellate Court below has also observed that Exhibit-1 register is not a document admissible in evidence on account of the fact that the plaintiff had not examined any witnesses as per requirement of law, so as to prove the correctness of the entries made therein. Nothing is available on record to show as to who has made those entries in the said register or as to the authenticity of such entry made in the register. The learned First Appellate Court also disbelieve the version of the plaintiff since he has failed to explain as to what prompted him to go for the vasectomy operation in the year 1977 that too after twelve years from the date on which his last child was born.
13. Learned First Appellate Court has examined the evidence adduced by the defendant No. 1 in proceeding before the Chief Judicial Magistrate, Sivasagar, which includes the testimony of one Siva Prasad Singh who had deposed that the 1st party and the 2nd party i.e. the plaintiff and the defendant No. 1 were staying in his rented house as husband and wife for about 4½ years. PW-2 i.e. the younger brother of defendant No. 1 had also deposed that the plaintiff had married defendant No. 1 and stayed in a rented house of Siva Prasad Singh.
14. During the course of trial in connection with the aforementioned suit, the plaintiff had examined Dr. A.M. Das, a gynecologist instead of Dr. B.C. Kakati, who had come and deposed that the Exhibit-'Ga' was the vasectomy operation register and Exhibit-'Ga(I)' is the relevant entry of operations performed by Dr. RSA No. 11/2004 Page 7 of 10 B.C. Kakati on 08-03-1977. However, the learned court below had recorded a finding that there was no record of vasectomy operation done from 01-01-1997 nor could the plaintiff produce any certificate of such operation which is usually given to every person who had undergone vasectomy operation. That apart the plaintiff had also not taken the aforesaid plea of having undergone the vasectomy operation in the reply filed in connection with the Criminal Case No. 950/1985. On the basis of such discussion, the learned First Appellate Court had recorded findings against the plaintiff/ appellant in respect of issue No. 2 and 3 and dismissed the suit filed by the plaintiff.
15. Ms. Goswami submits that the learned court below ought not to have reversed the judgment and decree passed by the Trial Court merely by looking at the evidence in connection with the Criminal Case No. 950/1985. In support of her aforesaid contention Ms. Goswami has placed reliance upon a judgment and decision of the Hon'ble Apex Court rendered in the case of M / s K aram Chand Ganga Prasad & Anr. Vs. Union of India & Ors. reported in AIR 1971 SC 1244 . The said submission of Ms. Goswami cannot be accepted on account of the express provision of Section 33 of the Evidence Act which permits such evidence to be relied up in a subsequent proceedings, once the court is satisfied that the condition mentioned in the said provision is satisfied. In such cases, the evidence given by a witness in a judicial proceeding at any point of time would be relevant even in the subsequent proceedings and therefore, having regard to the peculiar facts and circumstances of the case the learned lower Appellate Court, in my view, did not commit any error in relying upon the testimony of witnesses rendered in connection with the Criminal Case No. 950/1985. RSA No. 11/2004 Page 8 of 10
16. As regards the submission made by Ms. T. Goswami on the point of perversity of the findings recorded by the learned lower Appellate Court, on a proper scrutiny of the evidence available on record, I am of the opinion that such finding has been recorded on the basis of cogent evidence available on record. On the contrary, the finding recorded by the learned Trial Court in respect of issue No. 2 and 3 in favour of the plaintiff was dehors the evidence and hence, not sustainable in the eye of law. In view of the above, the substantial questions of law framed by this Court stands answered against the plaintiff and in favour of the respondent.
17. It would be pertinent to mention herein that although no issue on the point of limitation had been framed, yet the suit filed by the plaintiff is evidently barred under the law of limitation, since the plaintiff was admittedly aware of the assertion made by the defendant No. 1 to the effect that they had cohabited after exchange of garlands and out of that cohabitation defendant No. 2 was born. Such assertion made by the defendant No. 1 in categoric terms way back in the year 1985 was within the knowledge of the plaintiff. Having regard to the declaratory decree sought for in the suit it is evident that the matter falls under the ambit of Article 58 of the Limitation Act, 1963. Therefore, the suit ought to have been brought within the period of three years from the date of which cause of action arose for the first time i.e. in the year 1985.
18. Admittedly the plaintiff's suit was filed on 10-04-1992, which is way beyond the period of limitation as prescribed in the Article 58 of the Limitation Act. In that view of the matter the plaintiff's suit was clearly barred by limitation. Although, no such issue was framed by the court below on the point of limitation, RSA No. 11/2004 Page 9 of 10 yet, in view of the expressed provision of Section 3 of the Limitation Act, 1963, this Court would be well within its competence to address the said issue once the matter appears to be establish by the own showing of the plaintiff from the pleadings contained in the plaint.
In the result this second appeal is devoid of any merit and the same stands dismissed accordingly. However, there would be no order as to cost.
This Court would like to place on record a word of appreciation for the assistance rendered by Mr. S.K. Ghosh, learned amicus curie during the course of hearing of this case. Mr. Ghosh would be entitled to a remuneration of Rs. 5000/- due to the services rendered by him to this Court, which will be paid by the State Legal Services Authority within a period of one month from the date of receipt of this order. A copy of this order be brought to the notice of the Member Secretary of the Assam State Legal Services Authority.
Registry to send back the LCR.
JUDGE GS RSA No. 11/2004 Page 10 of 10