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2014 DIGILAW 390 (TRI)

Samir Debbarma v. Promode Debbarma

2014-11-21

S.TALAPATRA

body2014
JUDGMENT S. Talapatra, J. 1. Heard Mr. D. Chakraborty, learned senior counsel assisted by Ms. S. Gupta, learned counsel appearing for the petitioners as well as Mr. A.K. Bhowmik, learned senior counsel assisted by Mr. R. Datta, learned counsel appearing for the respondents. 2. This petition filed under Article 227 of the Constitution of India has questioned the order dated 18.07.2014 which reads as under: "18-07-14 Ld. Advocate, Mr. S.R. Dey, appearing for the plaintiff DH is present. Ld. Advocate, Mr. M.K. Biswas, appearing for the defendant JD is present and prays for an adjournment to file objection against the Report of Survey Commissioner. Record shows that more than 4 opportunities has been granted to the defendant JD for filing objection. I am, therefore, not inclined to allow further time. Hence, the prayer for adjournment stands rejected. Report of Survey Commissioner filed on 17-05-2014 stands accepted. Prepare final decree on deposit of requisites stamp papers. Enter the result." 3. Mr. Chakraborty, learned senior counsel has submitted that the certified copy of the Survey Commissioner's report was received on 24.06.2014 but on receipt of the said Survey Commissioner's report the petitioners could not be contacted for certain unavoidable circumstances. As a result, the objection could not be prepared for filing the same on 27.06.2014 and on that day on their prayer the adjournment was allowed. But for the same reason on 18.07.2014 they also could not file the objection. 4. Mr. A.K. Bhowmik, learned senior counsel has raised serious objection against the prayer made in the petition for providing them further opportunity on referring to the records that the preliminary decree was passed on 29.08.2005 in Title Suit (Partition) No. 180 of 1996. 5. Thereafter, the petition for final decree was filed. There cannot be any amount of doubt that almost for a decade the final decree could not be prepared for various reasons. From the order dated 08.05.2014 it appears that the Survey Commissioner so appointed by the Court did not submit the report nor he prayed for time. On that day further opportunity was granted to the Survey Commissioner by fixing the next date on 17.05.2014. On 17.05.2014 the Survey Commissioner filed his report in the Court. Thereafter on 31.05.2014 the date was fixed for objection. But there was prayer for adjournment from both the sides. On that day further opportunity was granted to the Survey Commissioner by fixing the next date on 17.05.2014. On 17.05.2014 the Survey Commissioner filed his report in the Court. Thereafter on 31.05.2014 the date was fixed for objection. But there was prayer for adjournment from both the sides. Next date was fixed on 11.06.2014 but on that day also adjournment was sought for by both the sides and the case was adjourned to 21.06.2014. On 21.06.2014 learned counsel appearing for the petitioners again sought for adjournment on the ground that they did not receive the certified copy of the report of the Survey Commissioner. Thus, the adjournment was granted and the case was again fixed on 27.06.2014. 6. What transpires from the petition itself is that the petitioners received the certified copy of the Survey Commissioner's report on 24.06.2014 but on the date following the day of receiving the certified copy i.e. 27.06.2014 again adjournment was prayed for by the petitioners. The court even on that day accommodated the petitioner by granting adjournment and fixing the date on 18.07.2014 when the impugned order was passed. Even on 18.07.2014 learned counsel for the petitioners sought for adjournment and such prayer was rejected by the impugned order assigning the following reasons: "Record shows that more than 4 opportunities has been granted to the defendant JD for filing objection. I am, therefore, not inclined to allow further time." Having observed thus the report of the Survey Commissioner filed on 17.05.2014 was accepted by the Court. 7. This Court does not find any infirmity or illegality in the impugned order dated 18.07.2014. But for reasons that for not having the proper instruction from the petitioners, as advanced in this petition, the objection could not be filed, this Court is inclined to grant one solitary accommodation to the petitioners despite serious objection raised by Mr. A.K. Bhowmik, learned senior counsel having regard to the substantive justice. 8. For that purpose, the petitioners shall invariably file their objection within 15 days from today after supplying a copy to the learned counsel for the respondents. Even though there is no date so fixed on 15th day from today, the Civil Judge, Sr. Divn., Court No. 2 shall accept such objection. This Court is fixing a date for hearing on the objection on 12th December, 2014. Even though there is no date so fixed on 15th day from today, the Civil Judge, Sr. Divn., Court No. 2 shall accept such objection. This Court is fixing a date for hearing on the objection on 12th December, 2014. On that day, the objection would be heard on merit and the court would pass the final order as to acceptance or non-acceptance of the Survey Commissioner's report or any other order, incidental or consequential thereto. So, it is made clear that the petitioner shall not be granted any further opportunity either for filing the objection as regards the Survey Commissioner's report or for hearing of the matter. This order is passed subject to the cost which is quantified at Rs. 3,000/- and to be paid to the respondents on the day so fixed for hearing. As a result, the order dated 18.07.2014 is set aside. It is made clear if the cost is not paid on 12.12.2014, the next date of hearing, this order will have no effect whatsoever and the order dated 18.07.2014 shall automatically be restored and further action shall accordingly be taken by the court. Accordingly, this petition stands allowed to the extent as indicated above and disposed of. Send down the LCRs.