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2017 DIGILAW 1124 (GAU)

Malika Begum v. Arun Ali

2017-08-17

PRASANTA KUMAR DEKA

body2017
JUDGMENT & ORDER : 1. Heard Ms. P Baruah, learned counsel, appearing for the plaintiff/petitioner. None has entered appearance on behalf of the defendants/respondents though the names of the learned counsels for the respondents/defendants have been shown in the cause list. 2. Ms. Baruah submits that the present petitioner filed T.S. No. 82/2006 in the court of the learned Munsiff No. 2, Sivasagar praying for decree of right, title, interest and possession over the suit land. The said suit was contested by the defendants/respondents by filing their written statement. On the basis of the pleading, the trial court framed issues whereafter the matter was fixed for evidence of the plaintiff’s side. The plaintiff’s side filed evidence on affidavit of three witnesses including the plaintiff/petitioner on 13.8.2009 and 6.7.2010. Thereafter the case was fixed for cross examination of the plaintiff and other witnesses on behalf of the plaintiff’s side. 3. Ms. Baruah further submits that at that relevant stage of the suit, the plaintiff/petitioner fell ill which was serious in nature. The petitioner, who is the sole member of the family without there being any male member as such she was entirely dependant on her counsel but owing to her illness she could not keep regular contact with her counsel. 4. In the month of August, 2012 after recovery from her illness, the petitioner contacted her counsel wherefrom she could come to know that the trial court had closed the evidence of plaintiff’s side and the matter was fixed for evidence of witnesses of the defendants’ side. An application was filed on 9.9.2012 praying for leave to allow the witnesses of the plaintiff’s side to be cross-examined by the defendants’ side. The said petition was disposed of vide order dated 5.12.2012, passed by the trial court in T.S. No. 82/2006. 5. Being aggrieved, the petitioner has preferred this revision petition challenging the said order. 6. Ms. Baruah submits that the ground shown in the petition bearing No. 587/2012 were genuine grounds and she suffered from serious illness and the court below ought to have considered such illness and having not considered, the impugned order is liable to be set aside. 7. Considered the submissions of Ms. Baruah and also perused the petition which was registered as petition No. 587/2012 filed by the present petitioner. 7. Considered the submissions of Ms. Baruah and also perused the petition which was registered as petition No. 587/2012 filed by the present petitioner. From the impugned order it is seen that the suit was fixed for cross-examination of the witnesses of the plaintiff’s side on 27.1.2011. Since then, the plaintiff/petitioner defaulted to present herself before the court for her examination alongwith witnesses. 8. The court below also came to the finding that enough chances were given to the petitioner to face cross-examination. Finally considering the suit to be a long pending one, the prayer of the petitioner was rejected. In the said suit alongwith the petition filed by the plaintiff/petitioner, the defendants/respondents too filed a petition which was registered as petition No. 418/2012, thereby praying for expunging the evidence of the plaintiff’s side. By the said order, dated 6.12.2012, the learned court below allowed the prayer of the defendants/respondents and dismissed the application of the present petitioner. The court below while passing the impugned order came to the finding that the court had to look into whether it will benefit one party and injustice to the other one and keeping the said mind set dismissed the said petition of the plaintiff. 9. This court finds that the said dismissal of the petition of the petitioner is too harsh. Instead the court ought to have imposed a heavy cost in order to mitigate the inconvenience caused to other side owing to none appearance by the plaintiff/petitioner along with her witnesses to face the cross-examination. Accordingly, for the ends of justice the said impugned order is set aside and the learned court below is accordingly directed to fix a date for cross-examination of the witnesses of the plaintiff’s side subject to payment of cost of Rs. 10,000.00 (Rupees ten thousand) only by the petitioner to be deposited in the trial court. Thereafter, the cross-examination of the plaintiff’s witnesses to be completed, within a period of two weeks from the date so fixed, if required by way of day to day hearing. On the prayer of the learned counsel appearing on behalf of the petitioner, the parties to the suit is directed to appear before the court on 19.9.2017. Ms. Baruah submits that she would accordingly inform about the date so fixed in the trial court to the counsel appearing for the respondents. 10. Accordingly this petition is disposed of. On the prayer of the learned counsel appearing on behalf of the petitioner, the parties to the suit is directed to appear before the court on 19.9.2017. Ms. Baruah submits that she would accordingly inform about the date so fixed in the trial court to the counsel appearing for the respondents. 10. Accordingly this petition is disposed of. The interim order passed earlier stands vacated. Send back the LCR immediately as the next date of T.S. No. 82/2006 is fixed in the court of the learned Munsiff No. 2, Sivsagar on 19.9.2017.