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2017 DIGILAW 1132 (GAU)

RITA ROY (DAS) v. ABDUL WAHAB BEPARI

2017-08-18

KALYAN RAI SURANA

body2017
JUDGMENT : Kalyan Rai Surana, J. Heard Mr. K.K. Dey, the learned counsel appearing for the petitioner and Mr. H.R.A. Choudhury, learned Senior Counsel, assisted by Mr. A.T. Sarkar, the learned counsel for the respondent. 2. By filing this application under Article 227 of the Constitution of India, the petitioner has challenged the order dated 09.01.2017, passed by the learned Civil Judge, Dhubri, in T.S.(M) Suit No. 42/2004, thereby rejecting the petition filed by the petitioner under Section 151 read with Order XVIII Rule 16 CPC to cross examine the PW-1. The respondent is the plaintiff in the said suit and the petitioner is the sole respondent therein. 3. The case projected by the respondent-plaintiff is that the respondent had taken a loan of Rs. 11,00,000/-. The respondent filed a suit for recovery of the said amount. By filing her written statement, the petitioner-defendant denied the transaction. 4. In course of time, the respondent examined himself as PW-1 by filing Evidence-on-affidavit on 08.05.2008 and the next date was fixed on 11.06.2008 for cross examination of PW-1. On 11.06.2008, the PW-3, who was present was cross examined and discharged. The plaintiff's prayer for adjournment was allowed by fixing the suit on 08.07.2008 for further evidence and for cross of PW-1. Both sides availed adjournments from time to time and on 26.05.2009, the respondent-plaintiff filed petition No. 728 under Order XXVI Rule 9 CPC for permitting the PW-1 to be cross examined on Commission. After several adjournments, the matter was heard and by order dated 04.02.2010, the learned trial court being satisfied about the illness of PW-1, allowed the petition under Order XXVI Rule 9 CPC for cross examining PW-1 on Commission. One Advocate Commissioner was appointed from the Dhubri Bar Association was appointed for recording the deposition/cross-examination of PW-1 at the residence of PW-1. Later on, by order dated 03.05.2010, the previously appointed Advocate Commissioner was substituted by appointing another Advocate Commissioner. 5. Very sadly, although the newly appointed Commissioner pocked his Commissioner's fees on 03.05.2010 itself, the learned Commissioner appointed for the purpose of recording deposition/cross-examination of PW-1 took innumerable adjournments from 20.05.2010 to 19.01.2015 for submitting his report, but he failed to act in terms of his appointment. 5. Very sadly, although the newly appointed Commissioner pocked his Commissioner's fees on 03.05.2010 itself, the learned Commissioner appointed for the purpose of recording deposition/cross-examination of PW-1 took innumerable adjournments from 20.05.2010 to 19.01.2015 for submitting his report, but he failed to act in terms of his appointment. Lastly, on the prayer made by the learned Commissioner for allowing some more time to file his report, the learned Civil Judge, Dhubri, allowed the prayer and fixed 06.02.2015 for filing of the report. 6. On 30.01.2015, the petitioner by filing petition No. 234, prayed for adjourning the cross-examination of PW-1 on the ground that the engaged Counsel, namely, Sri Sanjib Kumar Sur is presently residing at Siliguri (W.B.) and as the brief was kept with him, it is not possible for the present counsel to cross examine PW-1 and prayed for adjournment of the Commission by 1 (one) month to make communication with the respondent-defendant and also to collect the brief. The learned Civil Judge, Dhubri, by order dated 30.01.2015, rejected the said petition for the reason that the ground that the counsel did not have the brief and that he had not communicated and taken instructions from the defendant is not reasonable. 7. Thereafter, the counsel remained absent on 01.02.2015, when the PW-1 was to be cross-examined at his residence. The Commissioner waited till 1.26 pm and after making his report, had left the place. On the date fixed, i.e. on 06.02.2015, the Commissioner's report vide petition No. 282 was submitted and the learned Civil Judge, Dhubri accepted the said report and the Commissioner was discharged. The learned trial Court recorded the statement made by the learned Counsel for the respondent that the plaintiff did not want to examine any more witness. Hence, by the said order dated 06.02.2015, the evidence of plaintiff's side was closed and the case was fixed for argument on 02.03.2015. 8. On 02.03.2015, the petitioner-defendant's remained absent without steps, as such, the case was fixed on 09.03.2015 for argument. ON 09.03.2015, the argument was heard and the case was fixed on 07.04.2015 for judgment. On 07.04.2015, the learned Civil Judge, Dhubri did not deliver judgment due to some personal reasons and, as such, he recused himself from the case by transferring the case to the Court of the learned District Judge, Dhubri. ON 09.03.2015, the argument was heard and the case was fixed on 07.04.2015 for judgment. On 07.04.2015, the learned Civil Judge, Dhubri did not deliver judgment due to some personal reasons and, as such, he recused himself from the case by transferring the case to the Court of the learned District Judge, Dhubri. On 22.04.2015, the learned District Judge, Dhubri, transferred the suit to the Court of the learned Additional District Judge (FTC), Dhubri for disposal. The said transferee Court issued notice to the parties to appear. 9. On 29.05.2015, the respondent appeared through her counsel by filing Vakalatnama. The petitioner had also filed a petition No. 195 under Section 151 read with Order XVIII Rule 18 CPC with a prayer to allow the petitioner-defendant one chance to cross examine PW-1 and also to allow her to file their evidence. In the said petition, it was stated that her engaged counsel, Sri Sanjib Kumar Sur had left Dhubri without informing her and that she had come to know about the position of the case that the case proceeded to the stage of argument on receipt of information from the Court and she had appeared through her counsel by filing Vakalatnama. The respondent contested the said petition by filing written objection, inter-alia, stating therein that the petitioner had taken a false plea, as steps was all along been taken by the same counsel. The matter was heard and by holding that the counsel engaged had all along been filing attendance on behalf of the defendant and that by order dated 30.01.2015, the prayer of the defendant seeking time was rejected and the defendant had failed to cross-examine the PW-1order dated 09.01.2017, the said petition No. 195 was rejected. 10. The order dated 06.02.2015 and 09.01.2017 are impugned herein. 11. The learned counsel for the petitioner has urged that all along for last 5 years, the Commissioner had been seeking adjournment, but on one date due to the causes shown, when the counsel for the petitioner expressed his inability to cross examine the PW-1 and sought deferment by 1 month, the said petition was rejected and the Commission was promptly conducted. He prays for allowing the petitioner just one chance to cross examine the PW-1. 12. The learned Senior Counsel for the respondent has vehemently resisted this present application. By relying on the affidavit-in-opposition filed on 04.08.2017, it is submitted that Mr. He prays for allowing the petitioner just one chance to cross examine the PW-1. 12. The learned Senior Counsel for the respondent has vehemently resisted this present application. By relying on the affidavit-in-opposition filed on 04.08.2017, it is submitted that Mr. A. Paul, had been taking steps all throughout and, as such, it was not believable that the said counsel had been taking steps without instructions or without the brief. In this regard, the learned Senior Counsel for the respondent has relied on the copy of court attendances (Hazira) filed on behalf of the petitioner-defendant in the trial court, which is appended to the affidavit-in-opposition as Annexure-1. Therefore, it is submitted that the plea was a false one and fresh Vakalatnama was mischievously filed to create an impression as if a new counsel was engaged by the petitioner. He has argued in support of the orders impugned herein. 13. Considered the arguments advanced by the learned counsels for both sides and perused the materials on record. 14. The perusal of the court attendance sheets, i.e. Hazira filed on behalf of the respondent has provided the missing link in this case, which has made the case projected by the petitioner to be quite probable. The said Hazira shows that all along Mr. Aninda Paul, Advocate had been appearing as Junior to Mr. S.K. Sur, Advocate. This is reflected from copy of Vakalatnama dated 19.11.2004, and Court Hazira dated 20.02.2008, 18.03.2010, 30.08.2010, 30.05.2013, 23.12.2013, 18.02.2014, 10.11.2014 and 08.01.2015. It is projected that Sri S.K. Sur, the lead counsel engaged by the petitioner had left Dhubri and had settled at Siliguri (W.B.), about which the petitioner had no information. Which means that at least till the last Hazira dated 08.01.2015, presence of Sri S.K. Sur, Advocate is reflected and Mr. Aninda Paul was appearing as a Junior Counsel. Judicial notice must be taken of the usual practice amongst Counsels that although one Counsel is entrusted with the brief and instructions, all the chamber colleagues sign the Vakalatnama and each of the counsels signing the Vakalatnama may not be holding the brief independently with separate files. The next date was 19.01.2015, when also the learned Commissioner had taken time, therefore, the Junior Counsel had no effective work to do in the case. Thereafter, the case was posted on 06.02.2015 for report of the Commissioner. In the meanwhile, Mr. The next date was 19.01.2015, when also the learned Commissioner had taken time, therefore, the Junior Counsel had no effective work to do in the case. Thereafter, the case was posted on 06.02.2015 for report of the Commissioner. In the meanwhile, Mr. Aninda Paul, the counsel for petitioner had received notice of Commission fixed on 01.02.2015, but in the meantime, after filing the last Hazira on 08.01.2015, Mr. S.K. Sur, Advocate had left Dhubri. Hence, 2 days prior to the date fixed fro cross-examination of PW-1 on Commission on 30.01.2015, the learned Counsel for the petitioner had moved an adjournment petition on 30.01.2015, seeking 1 month's time to contact the petitioner and to seek instruction and brief. This court finds that it is quite possible that the Junior was not entrusted with the brief by the engaged Senior and, as such, as the counsel had no instructions, he did not venture to cross examine PW-1. In the meanwhile, on transfer of the case to the Court of Additional District Judge, Dhubri, Court notice was sent and on the date fixed, the petitioner-defendant by engaging Mr. Aninda Paul, filed a petition to inform the court that she came to be informed about the status of the case on receipt of court notice and prayed for allowing the petitioner to cross-examine PW-1 and to file her own evidence-on-affidavit. The prayer cannot be said to be not a genuine one because from one of the impugned order dated 06.02.2015 it appears that the learned trial court, without closing the evidence of the Defendants, directly posted the suit for argument. 15. This court finds that the petition filed under section 151 read with Order XVIII Rule 16 CPC had been filed by the petitioner under a wrong assumption that the provisions of Order XVIII Rule 16 CPC would entitle the petitioner to recall the PW-1 for his cross examination. Nevertheless, the sequence of events, particularly the fact that the learned Commissioner had been taking adjournments for 5 years at a stretch, the sudden shifting of the engaged counsel from Dhubri, caused the other counsel the necessity of seeking instructions from the petitioner, who is living in the District of Cooch Behar. 16. Nevertheless, the sequence of events, particularly the fact that the learned Commissioner had been taking adjournments for 5 years at a stretch, the sudden shifting of the engaged counsel from Dhubri, caused the other counsel the necessity of seeking instructions from the petitioner, who is living in the District of Cooch Behar. 16. Hence, in totality of the matter, the learned trial court is found to have committed jurisdictional error to have fixed the case for argument, without giving any opportunity to the petitioner-defendant to file her Evidence-on-affidavit. This court finds that the engaged counsel had sought only one adjournment in a span of 5 years, and that too when his Senior had left Dhubri, having last appeared on 08.01.2015, without any notice to the petitioner. Hence, this court is inclined to interfere with both the impugned orders dated 06.02.2015 and 09.01.2017, and the same are set aside. 17. The learned Trial court is directed to now pass consequential orders for proving a fixed date for cross-examination of PW-1 on Commission, when both the parties and their respective Counsels shall ensure their presence on the appointed date and time without any further notice for appearance and without any adjournment on any ground whatsoever, with a further direction to the Commissioner to complete his assignment on the date fixed or on such extended date, if the cross-examination gets spilled over and to submit his report (whether complete or incomplete), on or before the appointed date. To facilitate the recording of cross-examination on Commission, the learned Trial Court may appoint a new Commissioner on such terms as it may be deemed fit. The petitioner is directed to bear the cost of Commission. After the cross examination of PW-1 is over, the learned trial court shall also allow the petitioner-defendant to file the evidence-on-affidavit of all her witnesses on a fixed date and the petitioner-defendant shall make herself and all her witnesses available without fail on the date fixed for cross examination, failing which, the evidence of the defendant witnesses absenting, shall stand expunged. The cross examination of DWs shall be done on day-to-day basis by the learned trial court or by appointing a Advocate Commissioner to record the cross-examination in court complex on a fixed date, without serving any further written notice to any of the parties or their respective counsels. 18. The cross examination of DWs shall be done on day-to-day basis by the learned trial court or by appointing a Advocate Commissioner to record the cross-examination in court complex on a fixed date, without serving any further written notice to any of the parties or their respective counsels. 18. The parties, who are duly represented by their respective learned Counsels would appear before the learned Court of Additional District Judge, Dhubri on 04.09.2017 without any further notice for appearance, and by producing a certified copy of this order, shall seek further instructions from the said learned court. 19. With the directions as mentioned above, this application stands allowed. The parties are left to bear their own cost. 20. Before parting with the records, taking a serious note of the adjournments allowed to the learned Commissioner appointed by the learned trial Court, this court would like the learned trial court to take note of the "Trial Courts And First Appellate Subordinate Courts (Under the Gauhati High Court) Case Management Rules, 2007", and adhere to the same, which will go a long way to prevent delay in the disposal of the trial cases.