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2015 DIGILAW 1353 (GAU)

Md. Abdul Razak v. Bipul Deb

2015-10-16

SUMAN SHYAM

body2015
Judgment 1. This second appeal has been preferred by the concurrent judgment and decree dated 06-04-2006 passed by the learned District Judge, Karimganj in Title Appeal No. 02/2005 dismissing the appeal filed by the plaintiff as appellant thereby affirming the judgment and decree of dismissal dated 16-12-2004 passed by the learned Civil Judge (Sr. Div.), Karimganj in Title Suit No. 15/2001. 2. The brief fact of the case is that the plaintiff had executed the deed of sale dated 25-07-2000 which was registered on 03-07-2000 whereby the suit land was sold in favour of the defendant for a consideration of Rs. 50,000/-. The ownership and the possession of the land was transferred in favour of the defendant in terms of the aforesaid sale deed. However, the plaintiff had demanded a right of repurchase of the land and hence, the defendant had executed an ekrarnama on 25-07-2000 itself thereby, agreeing to return the land on receipt of amount of Rs. 50,000/- within 30 Chaitra, 1470 B.S. It is the case of the plaintiff that although he had requested the defendant to receive the amount and execute the sale deed thereby re-conveying the suit land, yet, the defendant refused to do so as a result of which the plaintiff was compelled to institute the Title Suit No. 15/2001 in the court of Civil Judge (Sr. Div.), Karimganj praying for a decree declaring his right, title and interest over the suit land; for execution of a registered deed of sale of re-conveyance of the suit land and for other consequential reliefs. 3. The defendant contested the suit by filing the written statement whereby he had admitted execution of the ekrarnama but maintained that the plaintiff had never offered the amount within the stipulated time and as such there is no obligation on his part to sell the suit land. 4. After framing of issues the suit was fixed for plaintiff’s evidence on 13-11-2002. However, since then more than 15 adjournments had been taken by the plaintiff for adducing evidence in support of his case without, however, adducing evidence. As such, by the order dated 29-06-2004 the learned Trial Court had closed the plaintiff’s evidence and thereafter, fix the matter for defendants evidence on 27-07-2004. 5. On 27-07-2004 the plaintiff had moved an application with a prayer to permit him to adduce evidence. As such, by the order dated 29-06-2004 the learned Trial Court had closed the plaintiff’s evidence and thereafter, fix the matter for defendants evidence on 27-07-2004. 5. On 27-07-2004 the plaintiff had moved an application with a prayer to permit him to adduce evidence. However, by the order dated 27-07-2004 the said petition filed by the plaintiff also stood rejected on the ground that the Trial Court did not have the jurisdiction to reopen the plaintiff’s evidence since there was no such provision in the CPC. Thereafter, the matter was fixed for adducing evidence by the defendant side. 6. The defendants had produced evidence by examining two witnesses. However, the plaintiff did not turn up for cross-examination of the said witnesses. As such, on the basis of materials available on record and taking note of the habitual default made by the plaintiff during the course of the trial, the learned Trial Court dismissed the suit of the plaintiff by imposing compensatory cost of Rs. 5000/- under Section 35A CPC. 7. Being aggrieved by the judgment and decree passed by the Trial Court, the plaintiff as appellant had preferred Title Appeal No. 02/2005 before the court of learned District Judge, Karimganj. By the judgment and decree dated 06-04-2006, the learned District Judge, Karimganj had rejected the appeal filed by the plaintiff by concurring with the views expressed by the learned Trial Court. Hence, this second appeal. 8. I have heard Mr. N. Dhar, learned counsel for the appellant, who submits that the plaintiff was prevented due to his ailments from adducing evidence and documentary evidence in support of his ailments was produced before the court below. By referring to the provision of Order XVII Rule 1 CPC, he submits that the court was not powerless in granting adjournments to the plaintiff if the facts and circumstances of the case demanded so. As such the learned Trial Court was clearly in error in holding that no power was vested in the court to reopen the evidence of the plaintiff. In support of his argument, Mr. Dhar has placed reliance on a judgment of Hon’ble Supreme Court reported in AIR 2005 SCC 3353(1) in the case of Salem Advocate Bar Association, Tamilnadu Vs. Union of India. 9. By relying to Section 153 of the CPC, Mr. In support of his argument, Mr. Dhar has placed reliance on a judgment of Hon’ble Supreme Court reported in AIR 2005 SCC 3353(1) in the case of Salem Advocate Bar Association, Tamilnadu Vs. Union of India. 9. By relying to Section 153 of the CPC, Mr. Dhar further submits that even assuming that there were certain lapses on the part of the appellant in not challenging the order dated 27-07-2004, even in that case the civil court had the power to amend and/ or rectify any defect in the proceeding if the facts and circumstances of the case justify the same. In support of aforesaid argument Mr. Dhar has relied upon a decision of the Hon’ble Supreme Court reported in (2003) 1 SCC 197 in the case of Lakshmi Ram Bhuyan Vs. Hari Prasad Bhuyan & Ors. 10. I have considered the submission made by Mr. Dhar and have also perused the materials available on record. A scrutiny of the LCR goes to show that the suit was fixed for plaintiff’s evidence on 13-11-2002 on which date adjournment was sought for on behalf of the plaintiff. Thereafter, on a number of occasions (not less than 15) adjournments had been sought for and the same was granted by the Trial Court permitting the plaintiff to adduce evidence. On 06-04-2004 the court below had granted adjournment on the prayer of the plaintiff by imposing a cost of Rs. 500/-, making it clear that no further adjournment will be granted. Notwithstanding the same the plaintiff side failed to adduce evidence as per requirement of law. Being situated thus, by the order dated 29-06-2004 the Trial Court had closed the evidence of the plaintiff since even on the said occasion a prayer for adjournment was made on medical ground without producing any supporting document. It further appears from the record that the plaintiff after filing the suit, did not even furnish the court fee for about a period of two years. The aforesaid conduct of the plaintiff, which displayed absolute callousness and/ or lack of seriousness in pursuing the matter, had been taken note of by the court below while passing the judgment and decree dismissing the suit of the plaintiff. 11. Order XVII Rule 1 CPC permits the court to grant up to three adjournments at the stage of hearing. The aforesaid conduct of the plaintiff, which displayed absolute callousness and/ or lack of seriousness in pursuing the matter, had been taken note of by the court below while passing the judgment and decree dismissing the suit of the plaintiff. 11. Order XVII Rule 1 CPC permits the court to grant up to three adjournments at the stage of hearing. However, the court is vested with power to grant further adjournments in case a party is prevented from appearing on the date of hearing due to facts and circumstances beyond his control. 12. In the present case, although adjournments far and excess of the limit prescribed by order XVII Rule 1 CPC has been granted by the Trial Court, yet, the plaintiff did not produce evidence on his behalf. From a perusal of the case record, it appears that the learned court below has been quite liberal in the matter of granting adjournments in favour of the plaintiff. Order XVII Rule 3 CPC provides that if the plaintiff fails to appear on the date of hearing the court is left with an option to dispose of the suit in terms of one of the modes prescribed in the said provisions. 13. Section 101 read with 102 of the Evidence Act makes it clear that the burden of proof always lies with the plaintiff. As such, it is the duty of the plaintiff to lead prima facie evidence in support of the assertion made in the plaint. It is only when the plaintiff succeeds in discharging the burden of prima facie establishing his case by leading cogent evidence on record that the onus to lead evidence so as to disprove the plaintiffs case would shift upon the defendant. As such, when the plaintiff fails to adduce any evidence, whatsoever, the Trial Court would be left with no other option but to dismiss the suit by following one of the option prescribed under Order XVII Rule 3 CPC, unless there is an admission of the plaintiff’s case by the defendant side. 14. On a perusal of the order dated 27-07-2004, it appears that learned trial court had refused to permit the plaintiff to adduce evidence on the ground that there was no power available to the court to reopen the plaintiff’s evidence after the same has been closed. 14. On a perusal of the order dated 27-07-2004, it appears that learned trial court had refused to permit the plaintiff to adduce evidence on the ground that there was no power available to the court to reopen the plaintiff’s evidence after the same has been closed. The plaintiff did not challenged the said order by filing appropriate proceeding before the higher court and as such, the order dated 27-07-2004 had attained finality, which had eventually merged with the judgment and decree passed by the learned Trial Court. The learned lower Appellate Court had also recorded concurrence with the views expressed by the Trial Court with proper justification. 15. I do not find any illegality or infirmity in the view taken by the lower Appellate Court in the attending facts and circumstances of the case. That apart, the transaction having been carried out way back in the year 2000, it would be highly inequitable for this Court to permit retrial of the suit at this stage in the facts and circumstances of the present case as the ground realities pertaining to the suit land is likely to have been substantially altered by now. In view of what has been held above, I am of the opinion that there is no substantial question of law that arises for determination in the instant case. As such, the second appeal is devoid of any merit and the same accordingly stands dismissed.