Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 444 (GAU)

Sankar Dutta and Ors. v. Anima Rani Datta and Ors.

2015-04-09

HRISHIKESH ROY

body2015
Hrishikesh Roy, J. 1. Heard Ms. P. Chakraborty, the learned counsel appearing for the petitioners (plaintiffs). Also heard Mr. M. Khan, the learned counsel appearing for the respondents (defendants). 2. The two litigant groups are step brothers/step sisters and they are fighting over their paternal property left behind by Late Ramendra Nath Dutta. The T.S. No. 38/2003 was filed to claim title over the schedule land in Cachar District to the exclusion of the defendants and also for void-ab-initio declaration of the so called deed of partition of 9.3.2003. After W.S. was filed by the defendants, on 17.8.2006 the defendants' side produced the purported partition deed of 9.3.2003. But since this document was not listed along with the W.S., the plaintiffs filed application on 6.9.2006 (Annexure-3) to reject the defendants' document. A 2nd application (Annexure-4) was also filed on the same date i.e. 6.9.2006, where it was projected that a forged partition deed was produced by the defendants, where plaintiffs' signatures were manufactured and accordingly prayer was made to make a complaint to the Judicial Magistrate, 1st Class, Silchar, under the provision of Section 340 read with Section 195 of the CrPC, against the defendants. 3. The aforesaid two application(s) of the plaintiffs was disposed of on 12.1.2007 itself by the learned Munsiff No. 1, Cachar, Silchar, where the Court observed that the acceptability of the Xerox copy of the partition deed is still to be decided and the same would be considered at an appropriate stage. On the plaintiffs' other application for lodging a Criminal Complaint, the Court observed that whether the partition deed is genuine or manufactured is still to be decided and therefore no material basis was found to proceed against the defendants on the criminal side, at that stage of the case. 4. But although both the applications of the plaintiffs were rejected on 12.1.2007 itself, they were under mistaken impression that the applications are still pending and eventually when the matter was pursued, the learned Trial Judge on 19.06.2009 (Annexure-6) observed that the plaintiffs' applications were dismissed on 12.1.2007 itself with reasoned order and therefore no fresh decision is needed on those applications of the plaintiff. 5. Ms. P. Chakraborty, learned counsel submits that the plaintiffs' side was unaware of the Court's order of 12.1.2007, as they were not heard when their applications were disposed of. But representing the defendants, the learned counsel Mr. 5. Ms. P. Chakraborty, learned counsel submits that the plaintiffs' side was unaware of the Court's order of 12.1.2007, as they were not heard when their applications were disposed of. But representing the defendants, the learned counsel Mr. M. Khan projects that both sides were heard, when the plaintiffs' applications were dismissed by the order 12.1.2007. 6. The respondents/defendants question the maintainability of this Revision Petition under Article 227 of the Constitution by projecting that the petitioners pray to issue the Writ of Certiorari in a petition under Article 227 but such Writs can be issued by the High Court only under Article 226 of the Constitution. 7. Under Order 8, Rule 1A of the C.P.C., it is the duty of the defendants to produce documents upon which he relies and when such document is not filed at the appropriate stage, the same can be produced by the defendants only with leave of the Court. Whether a particular document is forged or not, is to be decided on the basis of evidence and in this case, the learned Trial Judge in his order dated 12.1.2007 (Annexure-7) clearly declared that the genuineness of the partition deed will be decided at the appropriate stage. The admissibility issue of the partition deed was also kept open by the Court, while rejecting the 2nd application of the plaintiffs. From this order it is clear that at the appropriate stage, the Court will certainly decide on the acceptability/genuineness/evidentiary value of the partition deed produced by the defendants. 8. In the case in hand, the Trial Judge observed that the plaintiffs' applications were disposed of on 12.1.2007 itself and even then when the plaintiffs' pressed for orders, the Court declined to pass any further order on 19.6.2009 on those applications. If the plaintiffs had any grievance on the orders passed by the Court on 12.1.2007 or on 19.6.2009, they should have challenged the same before the appropriate Forum within the prescribed period of limitation. But since the concerned orders were left unchallenged till after the limitation period, the plaintiff has filed this petition under Article 227 of the Constitution, to circumvent their laches. 9. But since the concerned orders were left unchallenged till after the limitation period, the plaintiff has filed this petition under Article 227 of the Constitution, to circumvent their laches. 9. In exercise of power under Article 227, the orders of the Subordinate Court can be examined by the High Court only in exceptional cases, where manifest miscarriage of justice is noticed and supervising power can't be exercised to correct mistake of fact and law (see Radhey Shyam vs. Chhabi Nath reported in (2009) 5 SCC 616 ). 10. That apart, no Writs including the Writ of Certiorari can be issued under Article 227 of the Constitution. But even then the petitioners had prayed for a Certiorari Writ in their petition. A Writ Petition is a remedy in public law where the respondents are the Government or State within the meaning of Article 12 of the Constitution and extraordinary Writs can't be issued against private persons, who are not performing any statutory or public duty (see Shalini Shyam Shetty vs. Rajendra Shankar Patil reported in (2010) 8 SCC 329 ). 11. In the present case, both applications of the plaintiffs were dismissed by the Court on 12.1.2007 and the dismissal order was reiterated by the Trial Court on 19.6.2009. But these orders were not challenged through any proceeding under the C.P.C. Instead this Revision Petition is filed under Article 227 of the Constitution where prayer is made for issuance of Writ of Certiorari, to quash the impugned order dated 19.6.2009 of the learned Munsiff No. 1, Cachar, Silchar, in T.S. No. 224/2006. 12. When the Trial Court left open the issue of admissibility and the genuineness aspect of the partition deed produced by the defendants, it is expected that after evidence is received, these issues will receive due consideration of the learned Judge. Therefore in the absence of any miscarriage of justice, I feel that invocation of the power under Article 227 of the Constitution will be unjustified in the present case. Moreover the petitioners have prayed for the Writ of Certiorari but no such Writs can be issued on a petition under Article 227 of the Constitution. For these reasons, I find no merit in this Revision Petition and the same is accordingly dismissed. No cost. 13. The Registry should return back the LCRs to the concerned Court with a copy of this order.