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2008 DIGILAW 9 (GAU)

Phanindra Kr. Medhi v. Umesh Ch. Barman

2008-01-03

BROJENDRA PRASAD KATAKEY

body2008
JUDGMENT B.P. Katakey, J. 1. The opposite party as plaintiff, filed Title Suit No. 56/2005 in the Court of the learned Civil Judge (Jr. Division), No. 3 (now Munsiff) at Guwahati, against the petitioner as defendant, praying for a decree for declaration that the suit land is the approach path of the plaintiff from VIP road to his plot of land, that he got the right to use the suit land as his approach path, that the obstructions/blockade put by the defendant on the suit land to prevent the plaintiff from using the same as his approach path, is illegal and liable to be removed, for a decree of mandatory injunction for removal of all obstruction/blockade in the suit land as well as for permanent injunction contending inter alia that the plaintiff and two others namely, Sri Naba Kr. Kalita and Sri Bhubaneswar Kalita, purchased total land measuring 1 Bigha 1 Katha 10 Lechas covered by Dag No. 341 of K.P. Patta No. 53 of village No. 1, Mathgharia, under Beltola Mouza, by a registered deed of sale dated 03.06.1988 from its owner, out of which 2 Kathas 10 Lechas of land belongs to the plaintiff and when the plaintiff purchased the said land, it was vacant and on the eastern side of the plaintiff's land there exist road namely, VIP road. It has further been contended that frontage land was also lying vacant and in the sale deed his vendor mentioned the frontage land, i.e. eastern side of his plot, as sarkari road, but in course of time, he came to know that in between the plaintiff and the VIP road there is 1 Katha land covered by Dag No. 342 of K.P. patta No. 7 of the same village and Mouza belonging to the defendant and as the said 1 Katha of land fell in front of the plaintiffs land he was compelled to use a portion of the said 1 Katha land for his ingress and egress as he has no alternative to reach the main road from his land, which is at a distance of 30½feet away. The plaintiff in the plaint has further contended that he started to use the southern portion of the said land measuring 8x30½ feet (i.e. about ½ Lecha) as described in the Schedule to the plaint, which he is using it since 1988 and though the defendant at one time agreed to transfer 730 Sq. feet of land on the eastern side of the plaintiffs land by way of exchange and an agreement was signed between the parties, the defendant, however, has started construction of RCC building over his land including the suit land on 19.12.2002 thereby putting obstruction over the existing entry path of the plaintiff, for which a proceeding under Sections 145/146 Cr.P.C. was initiated being Case No. 486M/02 and land was attached. The plaintiff in the plaint further alleged that the defendant violating the order of attachment proceeded with the construction though he has right to use the said approach path. 2. The petitioner/defendant, on receipt of the summon, entered appearance and filed written statement denying the existence of any such path as claimed by the plaintiff in the plaint and contended that he never relinquish or exchange any portion of the land with the plaintiff and also denying execution of any agreement with the plaintiff. It has further been contended in the written statement that the plaintiff having purchased the land much later than he purchased, there was no scope for him to use any land as approach path through the defendant's land, which was already surrounded by boundary brick wall. The further contention of the defendant in the written statement is that in the proceeding initiated under Sections 145/146 Cr.P.C. (Case No. 486M/02) by the learned Executive Magistrate, Guwahati a report from the Circle Officer, Dispur Revenue Circle was called for and accordingly, the Circle Officer, after issuing notice to both the parties, i.e. the plaintiff and the defendant, inspected the area and submitted his report stating clearly that no approach road exist through the defendant's land, for the use of the plaintiff as claimed by him, which report is available in the said proceeding. It has further been contended that the learned Executive Magistrate, thereafter, kept the proceeding being Case No. 486M/02 in abeyance after filing of the civil suit by the plaintiff. 3. It has further been contended that the learned Executive Magistrate, thereafter, kept the proceeding being Case No. 486M/02 in abeyance after filing of the civil suit by the plaintiff. 3. The petitioner/defendant in the said suit being Title Suit No. 56/2005 and after closure of the examination of the plaintiff's witness filed an application under Order 13, Rule 10 read with Section151 of the CPC to call for the records of the proceeding initiated under Sections 145/146 Cr.P.C. being Case No. 486M/02 from the Court of the learned Executive Magistrate at Guwahati stating inter alia that the Circle Officer in terms of the order passed by the learned Executive Magistrate conducted the spot verification and submitted the report, which is necessary for the purpose of proper adjudication of the controversy between the parties in the suit. In the objection filed against the said petition, the plaintiff has stated that the evidence of the plaintiff having already been closed and the defendant being not entitled to take more than three adjournments to adduce evidence under the CPC and he having took three adjournments and there being no explanation of delay in filing such application, the same deserves to be rejected. In the said written objection, it has further been contended that if the record of the said proceeding initiated under Sections 145/146 Cr.P.C. was necessary, the defendant ought to have taken steps to call for the same at the proper time and that the same is not necessary for the purpose of deciding the controversy between the parties. 4. The learned Court below, upon hearing the learned Counsel for the parties, vide order dated 01.11.2006 rejected the said application filed by the petitioner/defendant under Order 13, Rule 10read with Section 151 CPC on the ground that the petitioner/defendant nowhere in the petition stated the reason for delay and also stated why he could not obtain the certified copy of the proceeding initiated under Section 145 Cr.P.C. The other ground on which the said application has been rejected is that the case record of the said proceeding is not necessary for proper adjudication of the suit. 5. 5. The petitioner/defendant, thereafter, filed another application in the said suit praying for issuance of summons to the Circle Officer, Dispur Revenue Circle, to examine him as one of the official witness, which application was also rejected by the learned Court below vide order dated 11.04.2007 on the ground that the petitioner/defendant's application to call for the records of Case No. 486M/02 has already been rejected and the report of the Circle Officer being not on record of the suit, no purpose would be served by issuing summons to examine the Circle Officer as witness. 6. Both these orders dated 01.11.2006 and 11.04.2007 are challenged by the petitioner/defendant in the present proceeding. 7. I have heard Mr. A.C. Sarma, learned Counsel for the petitioner and Mr. P. Upadhaya, learned Counsel appearing on behalf of the opposite party. 8. It has been contended by Mr. Sarma, learned Counsel for the petitioner, that the learned Court below has rejected the petitioner/defendant's application under Order 13, Rule 10 CPC vide order dated 01.11.2006 on the ground that the reason for the delay in filing such application has not been stated and the petitioner/defendant did not state why he could not obtain the certified copy of the said proceeding as well as on the ground that the record of the said proceeding is not necessary for proper adjudication of the title suit. According to the learned Counsel, the application under Order 13 Rule 10 CPC can be filed at anytime of the proceeding and the Court having the jurisdiction to call for the records from other Court, if the same is necessary for the purpose of justice, such record can be called for, even if the petitioner/defendant did not state in the petition why the certified copy of the record could not be obtained by him. It has further been submitted by the learned Counsel that the record of the said proceeding initiated under Section 145 Cr.P.C. (Case No. 486M/2002) more particularly, the report submitted by the Circle Officer in the said proceeding, being necessary for adjudication of the controversy between the parties, about which the petitioner/defendant pleaded in the written statement, the learned Court below ought to have called for the records of the said proceeding, as it is necessary for the purpose of justice, even though the petitioner/defendant in the application did not state why he could not obtain the certified copy of the same without unreasonable delay and such application was filed after closure of the plaintiff's witness, as it would not cause any prejudice to the plaintiff/opposite party, as he will get the chance to cross-examine the defendant's witness when such report is introduced in the evidence in the suit. The learned Counsel further submits that the learned Court below for the same reason ought not to have rejected the application filed by the petitioner/defendant to issue summons for examination of the Circle Officer, who submitted the report for his examination as witness, as, such examination is necessary to decide the controversy between the parties effectively and completely. 9. Mr. Upadhaya, learned Counsel for the opposite party/plaintiff supporting both the orders dated 01.11.2006 and 11.04.2007 passed by the learned Courts below has submitted that it is evident from the application filed under Order 13, Rule 10 CPC that the petitioner/defendant did not state that he even applied for the certified copy of the report and/or the proceeding initiated under Section145 Cr.P.C. It has further been contended that under the provisions of Order 17, Rule 1 CPC the defendant is entitled to the maximum of three adjournments to examine his witness and in the instant case, on the third day, i.e. after taking two adjournments, the petitioner/defendant filed the application under Order 13, Rule 10 CPC without even explaining the reason why such application could not be filed when the suit was fixed for taking necessary steps before peremptory hearing. Mr. Upadhaya has further contended that neither the record of the proceeding initiated under Section 145Cr.P.C. (Case No. 486M/02) nor the report of the Circle Officer submitted therein is necessary for the purpose of justice. Mr. Upadhaya has further contended that neither the record of the proceeding initiated under Section 145Cr.P.C. (Case No. 486M/02) nor the report of the Circle Officer submitted therein is necessary for the purpose of justice. It has further been contended that since the application filed by the petitioner/defendant under Order 13, Rule 10 CPC to call for the records of the proceeding initiated under Section 145 Cr.P.C. has been rejected, the learned Court below has rightly passed the order dated 11.04.2007 refusing to issue summons to the Circle Officer for examining him as witness. 10. I have considered the submissions of the learned Counsel for the parties and also perused the materials available on record. As discussed above, the suit is basically relating to an approach road, which according to the opposite party/plaintiff, is over the land belonging to the petitioner/defendant and he is using since the year 1988. But according to the petitioner/defendant, such path does not at all exist, which according to him, is also evident from the report submitted by the Circle Officer in the proceeding initiated by the opposite party/plaintiff under Section 145 Cr.P.C. (Case No. 486M/02). The petitioner/defendant, after closure of the examination of the witnesses of the plaintiff, filed the application under Order 13, Rule 10 CPC to call for the records of the said proceeding being Case No. 486M/02, which contains the report of the Circle Officer to prove the contents of the said report, no doubt after obtaining two adjournments for examination of the defendant's witness. The petitioner/defendant in the written statement has also pleaded the existence of such report submitted by the Circle Officer in the said proceeding initiated under Section 145 Cr.P.C. at the instance of the opposite party/plaintiff and also contents of the said report, which according to the petitioner/defendant, reflects that there is no existence of any approach road as contended by the opposite party/plaintiff in the plaint. 11. Under Order 13 Rule 10 CPC the Court has the jurisdiction to send for papers from its own records or from other Court either on its own motion or in its discretion upon application of any of the parties to a suit. 11. Under Order 13 Rule 10 CPC the Court has the jurisdiction to send for papers from its own records or from other Court either on its own motion or in its discretion upon application of any of the parties to a suit. Sub-Rule 2 of Rule 10 of Order 13 provides that every application made to call for the records be supported by an affidavit showing how the record is material to the suit in which such application is made and that the applicant cannot without unreasonable delay obtain a duly authenticated copy of the record or of such portion thereof as the applicant requires, or that the production of the original is necessary for the purpose of justice. It is, therefore, evident that even if in an application filed by a party in a suit, to call for the records, it has been pleaded that the applicant could not without unreasonable delay obtain a duly authenticated copy of record but could show that the production of such record would necessary for the purpose of justice, the Court can call for the same. Order 17 Rule 1 CPC empowers the Court to adjourn the hearing of the suit not more than three times. In the instant case, however, it is not required to go into the question as to whether the Court can grant adjournment for more than three times to a party during hearing of a suit, as the said question is not required to be gone into, in view of the fact that on the third day, i.e. after taking two adjournments during the hearing of the suit, the petitioner/defendant filed the application under Order 13, Rule 10 CPC and he has not prayed for the adjournment of the hearing of the suit on the said date. 12. Order 13, Rule 10 CPC does not provide that the application to call for the records cannot be filed at the hearing stage of the suit. In the application filed by the petitioner/defendant under Order 13, Rule 10 CPC, no doubt it has not been stated as to why he could not file the said application at the stage when the suit was fixed for taking necessary steps before peremptory hearing or before examination of the plaintiff's witness. In the application filed by the petitioner/defendant under Order 13, Rule 10 CPC, no doubt it has not been stated as to why he could not file the said application at the stage when the suit was fixed for taking necessary steps before peremptory hearing or before examination of the plaintiff's witness. The said application also does not contain any statement why he could not obtain the certified copy of the record or whether he has applied for the same. Normally, such application under Order 13, Rule 10 CPC is required to be filed at the stage when the suit is fixed for taking necessary steps before peremptory hearing but it is not that an application filed by any of the parties to the suit, thereafter, cannot be considered and no order to call for the records can be passed by the Court, even if such record is necessary for adjudication of the controversy between the parties effectively and completely and it is necessary for the purpose of justice, on the ground that there is no statement in such application that the authenticated copy of the record sought to be called for or part of it could not be obtained without unreasonable delay or expense. The Court even in absence of such statement can call for the records or any part thereof, if it is necessary for the purpose of justice. 13. The Code of Civil Procedure, as observed by the Apex Court in Sangram Singh v. Election Tribunal Kotah and Anr. [1955] 2 SCR 1, lays down the procedure designed to facilitate justice and further its ends and not a penal enactment for the punishment and penalties or not a thing designed to trip people up. Too technical construction of sections that leaves no room for reasonable elasticity of interpretation should, therefore, be guarded against, lest the very means designed for the furtherance of justice be used to frustrate it. The Apex Court in Smti. Rani Kusum v. Smti. Kanchan Devi and Ors. Too technical construction of sections that leaves no room for reasonable elasticity of interpretation should, therefore, be guarded against, lest the very means designed for the furtherance of justice be used to frustrate it. The Apex Court in Smti. Rani Kusum v. Smti. Kanchan Devi and Ors. AIR 2005 SCW 3985 while dealing with the provision of Order 8, Rule 1CPC and its mandatory or directory nature, which provides the time limit for filing written statement after service of summons on the defendant, has also observed that the rules of procedure are made to advance the cause of justice and not to defeat it and the construction of the rule or procedure, which promotes justice and prevents its miscarriage has to be preferred, as the rules or procedures are handmaid of justice and not its mistress. 14. In the case in hand, even though the petitioner/defendant did not take any statement in his application filed under Order 13, Rule 10 CPC disclosing as to why without unreasonable delay he could not obtain a duly authenticated copy of the record sought to be called for, the court below ought to have passed the order calling for the records of Case No. 486M/02 as the petitioner/defendant in the written statement itself has taken the specific plea about the submission of the report by the Circle Officer on the basis of the field verification in the proceeding initiated under Section 145 Cr.P.C. at the instance of the opposite party/plaintiff, as it has the jurisdiction to call for the said record when it is necessary for the purpose of justice. The learned Court below without discussing anything has come to the finding that such record are not necessary for the purpose of justice and to decide the controversy between the parties in the suit. The discretion conferred under the Code by Order 13, Rule 10 has to be exercised on sound principles and in the interest of justice and not in a manner, which may frustrate the ends of justice. 15. In view of the aforesaid discussion, I am of the view that the records of Case No. 486M/02, i.e. the proceeding initiated under Section 145 Cr.P.C, more particularly, the report submitted by the Circle Officer in the said proceeding, is necessary for the interest of justice and to decide the controversy between the parties in the suit. 15. In view of the aforesaid discussion, I am of the view that the records of Case No. 486M/02, i.e. the proceeding initiated under Section 145 Cr.P.C, more particularly, the report submitted by the Circle Officer in the said proceeding, is necessary for the interest of justice and to decide the controversy between the parties in the suit. The learned Court below is, therefore, directed to call for the said records from the Court of the learned Executive Magistrate at Guwahati. Since the order dated 11.04.2007 has been passed by the learned Court below rejecting the prayer to issue summons for examination of the Circle Officer of Dispur Revenue Circle as witness on the ground that the application filed under Order 13, Rule 10 CPC to call for the records of Case No. 486M/02 has been rejected, the learned Court below is directed to consider the said prayer for issuance of summons for the purpose of examination of the Circle Officer, Dispur Revenue Circle as witness, afresh. It is also open to the petitioner/defendant to file application to call for any official witness other than the Circle Officer to prove the records of Case No. 486M/02 before the learned Court below, if so advised. 16. The orders impugned dated 01.11.2006 and 11.04.2007 are accordingly set aside. 17. The revision petition is allowed to the extent indicated above. No cost. The parties are directed to appear before the learned Trial Court on 11.01.2008 for taking necessary order from the said Court. Petition allowed