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2014 DIGILAW 950 (GAU)

Md. Nazrul Haque v. Nekjan Bibi

2014-10-30

N.CHAUDHURY

body2014
ORDER 1. This is an application under Article 227 of the Constitution of India challenging the legality and validity of order dated 22.12.2008 passed by learned District Judge, Kamrup in Misc. Appeal No. 7 of 2008 dismissing the appeal and thereby virtually upholding the order dated 05.04.2008 passed by the learned Civil Judge (Senior Division) No. 2, Kamrup at Guwahati in Title Suit No. 131 of 2006. 2. The sole opposite-party as plaintiff instituted Title Suit No. 131 of 2006 in the Court of learned Civil Judge (Senior Division) No. 2, Kamrup at Guwahati praying for a decree of specific performance of contract and also for injunction. The defendant appeared and submitted a written statement. The learned Court fixed the case for evidence after the issues were framed. The plaintiff submitted examination-in-chief in the form of affidavit on behalf of PW1 who was cross-examined on 21.08.2007 and thereafter the evidence of the plaintiff side was closed fixing 25.09.2007 for submission of examination-in-chief by the defendant. On that date plaintiff filed an application before the learned trial Court stating that PWs No. 2 & 3 named by him in the list of witnesses were unable to adduce evidence on the previous date as the defendant had filed criminal case against these witnesses for which police was after the witnesses and consequently plaintiff could not produce them earlier. Now that the witnesses were on bail, the plaintiff wanted the Court to accept their examination-in-chief. It is to be noted here that on that date i.e. on 25.09.2007 when the plaintiff filed examination-in-chief on behalf of PWs 2 & 3 which is discernible from the learned Court records, the defendant did not file evidence on that date and made prayer for adjournment which was granted by the learned trial Court. The application filed by the plaintiff on 25.09.2007 praying for accepting examination-in-chief of PWs No. 2 & 3 was not contested by the defendant by filing any written objection and ultimately 7 months thereafter on 05.04.2008 the learned trial Court accepted the contention of the plaintiff and took examination-in-chief on record. It is on that date only defendant filed his examination-in-chief in the form of affidavit under Order XVIII Rule 4 of the Code of Civil Procedure. It is on that date only defendant filed his examination-in-chief in the form of affidavit under Order XVIII Rule 4 of the Code of Civil Procedure. Since the examination-in-chief of PWs 2 & 3 were filed immediately on the next date after closure of the evidence of the plaintiff and since defendant filed his evidence only on 05.04.2008 nearly 8 months thereafter, there was no question of filling up any lacuna by the plaintiff and so the learned Court by order dated 05.04.2008 exercised inherent power and accepted the evidence on records. 3. Aggrieved, defendant approached the learned Civil Judge, Kamrup at Guwahait invoking jurisdiction under the provision of Order 43 Rule 1(w) of the Code of Civil Procedure stating that the order dated 05.04.2008 accepting examination-in-chief of PWs 2 & 3 and allowing application of the plaintiff amounted to review of the order dated 21.08.2007 and the same not having been filed within a period of 1 month from the date of passing of the order was clearly barred by limitation. The learned District Judge after hearing both sides arrived at the finding that the order passed by trial Court was not a one of review but was only an order passed in exercise of inherent jurisdiction of the trial Court to ensure justice. Having so found the learned District Judge dismissed the appeal by his judgment and order referred to above. It is this judgment which has been challenged in the present revision petition. 4. I have heard Mr. B. Ullah, learned counsel for the petitioners and Mr. P. Upadhay, learned senior counsel for the respondent. I have also perused the lower Court records including the examination-in-chief filed on behalf of PWs 2 & 3 and the order sheet of Title Suit No. 131 of 2006. 5. Mr. Ullah submits that learned District Judge committed jurisdictional error in holding that appeal is not maintainable inasmuch as the order dated 05.04.2008 cannot be construed to be an order passed under Section 151 of the Code of Civil Procedure. According to learned counsel it is out and out an order of review and so appeal lies under Order 43 Rule 1(w) of the Code of Civil Procedure. 6. Per contra, Mr. P. Upadhyay, learned counsel for the respondent would argue that the question of review in the earlier order dated 21.08.2007 did never arise before the trial Court. According to learned counsel it is out and out an order of review and so appeal lies under Order 43 Rule 1(w) of the Code of Civil Procedure. 6. Per contra, Mr. P. Upadhyay, learned counsel for the respondent would argue that the question of review in the earlier order dated 21.08.2007 did never arise before the trial Court. It was not the case of the plaintiff that previous order dated 21.08.2007 was vitiated by any error apparent on the face of record. By filing application on 25.09.2007, the plaintiff stated that on the previous date PWs 2 & 3 were not available to the plaintiff in view of overt action of the defendant by filing criminal cases against them. Once the PWs 2 & 3 became available for making deposition on behalf of the plaintiff, plaintiff wanted the court to pass appropriate order. Apparently the application was filed in view of subsequent event and not for any error apparent on the face of record. 7. Having heard the lower counsel for the parties and after perusal of the order sheet from lower Court records, it appears that plaintiff’s sole witness i.e. PW1 was cross-examined and discharged on 21.08.2007 and thereafter the case was fixed for evidence by defendant on 25.09.2007. On that date defendant did not file examination-in-chief in the form of affidavit and did not bring any witness. Defendant prayed for time to file his examination-in-chief. This position continued for next 7 months and thereafter on 05.04.2008 only defendant submitted his examination-in-chief. In the meantime i.e. on the first date after 21.08.2007 plaintiff submitted the application stating some facts as reason for his inability to bring PWs 2 & 3 on the previous date. This statement of facts has gone unrebuted as defendant chose not to file any objection denying the correctness or otherwise of this statement of fact. Situated thus, learned trial Court was constrained to accept this statement of fact as correct and having so found impugned order dated 05.04.2008 was passed for the ends of justice. In so doing, the learned Court did not commit any undue haste. Application was filed on 25.09.2007 and the case proceeded and the position continued for next more than 7 months and so defendant cannot complain of not getting opportunity to file objection against the application. In so doing, the learned Court did not commit any undue haste. Application was filed on 25.09.2007 and the case proceeded and the position continued for next more than 7 months and so defendant cannot complain of not getting opportunity to file objection against the application. Once some facts were brought to the learned trial Court and those facts have not been controverted by the other side, the learned Court did not commit any mistake in accepting the same in the face value and thereupon passing an order so as to accept the examination-in-chief of PWs 2 & 3. 8. Moreover, the learned counsel for the petitioner Mr. B. Ullah although argued that the facts and circumstances leading to filing of application dated 25.09.2007 come under a specific provision of the Code of Civil Procedure but could not point out the provision on being asked in course of hearing. The learned counsel for the petitioners wanted to argue that the plaintiff was at liberty to file application under Order XVIII Rule 17 of the Code of Civil Procedure but the same provision relates to recalling of witness. Here is a case where these witnesses were never examined so the question of recalling them did not arise. Having so found it is to be held that there was no specific provision governing the prayer made by the plaintiff on 25.09.2007 and it was out and out an exercise under Section 151 of the Code of Civil Procedure. This is what has been found by the learned District Judge in the impugned order dated 22.12.2008. There is no scope to interfere with the same order. 9. This revision petition therefore is devoid of any merit and it is accordingly dismissed. 10. No order as to costs. 11. Interim order passed earlier shall stand automatically vacated. 12. Send down the records immediately. 13. Parties shall appear before the learned trial Court on 20.11.2014. 14. It is needless to say that the suit being a one of 2006, needs to be expeditiously heard. Learned trial Court shall dispose of the suit as expeditiously as possible preferably within a period of 6 months from the date of receipt of the records.