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2014 DIGILAW 810 (GAU)

Enam Rabbani v. Salma Rahman

2014-08-22

A.K.GOSWAMI

body2014
JUDGMENT AND ORDER (CAV) By this application under Article 227 of the Constitution of India, the petitioner calls into question the order dated 29.09.2011, passed by the learned Munsiff No. 1, Nagaon in Title Suit No. 86/1998 as well as the order dated 24.08.2001, passed by the Munisff No. 1, Nagaon in Misc (J) Case No. 46/1998, registered on a petition under Order 39 Rule 1 and 2 read with Section 151 C.P.C. for injunction. 2. Heard Mr. K.K. Mahanta, learned Senior Counsel for the petitioner. Also heard Mr. A. Sarma, learned counsel for the opposite party. 3. Before proceeding further, at the outset, it will be appropriate to briefly notice the purport of the orders impugned. By the order dated 29.09.2011, the learned trial Court allowed an application filed by the Defendant No. 1, under Section 33 of the Indian Evidence Act read with Section 151 C.P.C., for accepting the evidence tendered by Late Rajibun Nessa, who was the mother of both the plaintiff and the defendant No. 1, by holding that such evidence would be taken into consideration at the time of appreciation of evidence. 4. Order dated 24.08.2001 is an order by which the learned trial Court directed that report of the Commissioner appointed for examination of a witness be kept with the case record. The Commissioner was appointed for examination of Rajibun Nessa on a petition filed by the Defendant No. 1 under Order 26 Rule 1 C.P.C. in Misc (J) Case No. 46/1998. 5. The petitioner, as plaintiff, had filed a suit for declaration of right, title, interest and confirmation of Schedule ‘A’ land, measuring 1 Katha 7 ½ Lechas and for permanent injunction restraining the defendant, her agents, etc. from entering into the suit land and from dispossessing him. The respondent herein was arrayed as defendant No. 1. Rajibun Nessa was arrayed as pro-forma defendant No. 2. The pleaded case of the plaintiff was that Rajibun Nessa, who had right, title and interest over 3 Kathas 11 Lechas land covered by Dag No. 690/691 of Periodic Patta No. 503 of Nagaon Town Kissam, out of love and affection, orally gifted 1 Katha 7 ½ Lechas of land on 21.11.1970 out of the said 3 Kathas 11 Lechas, keeping a 5 ft. wide path on the eastern side and delivered possession to him in presence of his family members. wide path on the eastern side and delivered possession to him in presence of his family members. The plaintiff had accepted the gift and had taken delivery of possession and constructed a two-storied RCC building in the back portion of the land and had been residing in the said RCC building for long 26 years and had rented out a portion of the house to tenants. On 23.08.1998, defendant No. 1 tried to force into the vacant portion of the suit land along with some labourers but her attempt was foiled. She, however, proclaimed that she would take possession of the land by any means. With the aforesaid broad pleading, the suit was filed and the same was registered as Title Suit No. 86/1998 in the Court of the Civil Judge, Junior Division, Nagaon. 6. The Defendant No. 1 had filed written statement. In the said written statement, she denied making of the oral gift by the mother and delivery of possession to the plaintiff. It was pleaded that the two-storied RCC building was constructed by their mother. She stated that the suit patta contained three dags, namely, 690, 691 and 1589 containing an area of 2 Kathas 15 Lechas, 6 Lechas and 10 Lechas, respectively. Land in Dag No. 1589 was disposed of earlier. The pro-forma defendant No. 2 gifted 1 Katha, covered by Dag No. 690/691 to her on 18.11.1988 vide registered deed of Hiba-bil-Ewaj No. 1946 and delivered possession of the said land to her and that she was in possession of the said land by erecting boundary fencing and also by constructing one ek-chali house with CI-sheet roof. The gifted land is in the southern part of the suit land. The said land was mutated in her name. It is also pleaded that the two-storied RCC building constructed by her mother was in contiguous north of the land gifted to the defendant No. 1 and the plaintiff was allowed to live in the said house temporarily. Allegations are made that it was the plaintiff, who had tried to forcefully dispossess the defendant No. 1. 7. Pro-forma defendant No. 2, i.e., the mother of the plaintiff and defendant No. 1, by filing written statement, also denied making of any oral gift. It was pleaded that the plaintiff did not take any care of her. Allegations are made that it was the plaintiff, who had tried to forcefully dispossess the defendant No. 1. 7. Pro-forma defendant No. 2, i.e., the mother of the plaintiff and defendant No. 1, by filing written statement, also denied making of any oral gift. It was pleaded that the plaintiff did not take any care of her. She also stated about making of the gift of 1 Katha to the defendant No. 1 on 18.11.1988. The written statement of pro-forma defendant No. 2 was more or less in the same line as that of defendant No. 1. 8. In Misc (J) Case No. 46/1998, whereby the plaintiff prayed for an injunction against defendant No. 1, restraining her from entering into the suit land, on a petition filed under Order 26 Rule 1 C.P.C., the learned trial Court, by an order dated 05.06.1999, appointed a Commissioner to examine Rajibun Nessa. She was examined and cross-examined and thereafter, the Commissioner submitted his report enclosing the order-sheet and the evidence of the witness. It is to be noted that in Misc (J) Case No. 46/1998, the petitioner had examined 4 witnesses and the defendant No. 1 had examined 2 witnesses. Both the sides had also exhibited documents. 9. By an order dated 30.05.2002, taking note of the evidence, the learned trial Court refused the prayer for injunction. 10. In the petition filed under Section 33 of the Indian Evidence Act read with Section 151 C.P.C., it is averred that in her evidence, Rajibun Nessa had exhibited as Exhibit – Ka, the Hiba-bil-Ewaj and her signatures appearing therein as Exhibits – Ka(1) to Ka(4). It was also stated that Rajibun Nessa had admitted delivery of possession in favour of defendant No. 1 and had denied any gift of suit land in favour of the plaintiff. In the objection filed, while asserting that the petition filed by the defendant No. 1 under Section 33 of the Indian Evidence Act was not maintainable in law, it is stated that conditions for accepting her evidence in Title Suit was not satisfied and that as her legal heirs were made parties in the suit, her statement in another proceeding cannot be used in the present suit. 11. Mr. 11. Mr. K.K. Mahanta, learned Senior Counsel for the petitioner submits that order dated 24.08.2001 had been passed in mechanical exercise of power by the learned trial Court to keep the Commissioner’s Report on record in view of the fact that on the first date when the cross-examination of RajibunNessa was continuing, there was some difference in between the learned advocates of the parties as a result of which the cross-examination could not be completed on that date. Therefore, the learned Senior Counsel submits that the Report of the Commissioner ought to have been rejected. It is further submitted by him that the petition under Section 33 of the Indian Evidence Act read with Section 151 C.P.C. ought not to have been allowed by the learned trial Court by the impugned order dated 29.09.2011 as the evidence recorded in Misc (J) Case No. 46/1998 could not have been considered to be relevant in the Title Suit and that the questions in issue in an injunction proceeding cannot be held to be substantially same in the proceeding of the suit. It is also submitted that the defendant No. 1 had delayed the proceedings and did not examine the mother when she was alive and after her death, filed the said application under Section 33 of the Indian Evidence Act read with Section 151 C.P.C. 12. Mr. A. Sarma, learned counsel for the respondent, on the other hand, submits that order dated 24.08.2001 is sought to be challenged after almost 11 years of the passing of the said order. It is submitted by him that there is no explanation whatsoever as to why it took long 11 years to challenge the said order and therefore, this Court at this distance of time, may not invoke jurisdiction under Article 227 of the Constitution of India. He has further submitted that evidence recorded by the Commissioner was acted upon at the time of hearing of the injunction petition and it is now too late in the day to raise any objection with regard to the said order. He has submitted that Rajibun Nessa was examined and cross-examined and her cross-examination was completed. 13. Proceeding further, he submits that the cross-examination of the plaintiff was completed only on 27.07.2010 and the plaintiff had filed the affidavit of witnesses only on 28.08.2009. He has submitted that Rajibun Nessa was examined and cross-examined and her cross-examination was completed. 13. Proceeding further, he submits that the cross-examination of the plaintiff was completed only on 27.07.2010 and the plaintiff had filed the affidavit of witnesses only on 28.08.2009. The mother of the plaintiff as well as the defendant No. 1 had expired on 12.01.2004 and therefore, the submission of Mr. Mahanta that the defendant had delayed the proceeding is absolutely misconceived. He has further submitted that condition precedent for exercise of power under Section 33 of the Indian Evidence Act was satisfied and no interference is called for with the order dated 29.09.2011. 14. The order dated 24.08.2001 has attained finality and the evidence recorded by the Commissioner was considered by the learned trial Court at the time of consideration of the petition under Order 39 Rule 1 and 2, read with Section 151 C.P.C. The crux of the matter is that Rajibun Nessa was subjected to cross-examination and her cross-examination was completed. Merely because her cross-examination could not be completed in one day because of some difference in between the counsel for the parties is no ground to hold that the order dated 24.08.2001 is bad in law. 15. Accordingly, no case is made out to interfere with the order dated 24.08.2001 under Article 227 of the Constitution of India. 16. Section 33 of the Evidence Act reads as follows: “33. Relevancy of certain evidence for providing, in subsequent proceeding, the truth of facts therein stated. 15. Accordingly, no case is made out to interfere with the order dated 24.08.2001 under Article 227 of the Constitution of India. 16. Section 33 of the Evidence Act reads as follows: “33. Relevancy of certain evidence for providing, in subsequent proceeding, the truth of facts therein stated. – Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable: Provided – that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding.” 17. An analysis of Section 33 of the Evidence Act shows that evidence given by a witness in a judicial proceeding, or before any other person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the said judicial proceeding, that truth of the facts, which it states when the witness is dead or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable. The proviso to Section 33 of the Evidence Act further provides that it must also satisfy the tests that (i) the proceeding was between the same parties or their representatives-in-interest; (ii) that the adverse party, in the first proceeding, had the right and opportunity to cross-examine; (iii) that the questions in issue were substantially the same, in the first as well as in the second proceeding. 18. In the case in hand, witness Rajibun Nessa was no more. 18. In the case in hand, witness Rajibun Nessa was no more. She had recorded her evidence before a Commissioner appointed by the court in an injunction proceeding arising out of the suit. She was duly cross-examined. 19. The word ‘proceeding’ is not defined in either the Civil Procedure Code or in the Evidence Act. Shorter Oxford Dictionary defines it as “carrying on of an action at law, a legal action or process; any act done by authority of a Court of law; any step taken in a cause by either party”. 20. Thus, it will appear to the Court that the term ‘proceeding’ is a very comprehensive term of widest amplitude and it indicates a prescribed mode in which judicial work is discharged. Grant or refusal of injunction is a step in the judicial process in the course of a suit and in the journey of litigation and hence there can be no manner of doubt that any such order passed is an order passed in a judicial proceeding. Evidence recorded during the course of adjudication of an injunction prayer must necessarily be held to have been recorded in a judicial proceeding. Injunction proceeding is an off-shoot of a suit and therefore, is a part of the same suit proceeding. 21. Generally, parties in the suit and in the injunction petition are same and at any rate, in the instant case, the parties are same. It needs no restatement at the hands of this Court that the three golden principles that govern grant of injunction are (i) prima facie case, (ii) balance of convenience and (iii) irreparable loss and injury. 22. Question in issue at the time of consideration of injunction proceeding was relating to execution of a gift deed by Rajibun Nessa. Plaintiff based his suit on a gift deed executed by Rajibun Nessa. Rajibun Nessa deposed on the question of execution of the gift deed. Thus, question in issue in the injunction proceeding is substantially the same in the suit proceeding. However, at the time of disposal of the injunction proceeding, only tentative and prima-facie opinion is expressed. 23. In view of the above discussions, I am of the considered opinion that in the instant case conditions precedent for application of Section 33 of the Indian Evidence Act was fulfilled and therefore, the order dated 29.09.2011 does not require any interference. 24. 23. In view of the above discussions, I am of the considered opinion that in the instant case conditions precedent for application of Section 33 of the Indian Evidence Act was fulfilled and therefore, the order dated 29.09.2011 does not require any interference. 24. Accordingly, there is no merit in this application and the same is dismissed. Interim order is vacated. No cost. 25. The parties to the proceeding by themselves or through their counsel will appear before the learned trial Court on 24.09.2014. 26. Send back the lower Court records.