Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 1156 (GAU)

Pradeep Kumar Dey v. Muktaruddi

2017-08-24

PRASANTA KUMAR DEKA

body2017
JUDGMENT & ORDER : 1. Heard Mr. S. Dey, learned counsel, appearing for the plaintiffs/ petitioners. Also heard Mr. S.R. Barbhuiya, learned counsel for the respondents. 2. This revision application is filed against the judgment and order dated 1.11.2011 passed in Misc. Appeal No. 23/2010, by the learned Civil Judge (Senior Division), No. 1, Cachar, Silchar. The petitioners filed T.S. No. 641/2006 for declaration of right, title and interest and for confirmation of possession and injunction. The defendants who are the respondents in this petition, contested the claim of the plaintiffs/ petitioners and filed written statement. The suit proceed and at the stage of evidence, it was dismissed by the court of the learned Munsiff No. 2, Cachar at Silchar vide order dated 6.6.2009. It is pertinent to mention here that on 14.5.2009, the plaintiffs/ petitioners sought for adjournment of the suit when the matter was fixed for filing evidence on affidavit by the witnesses of plaintiffs’ side. However, vide order dated 14.5.2009, the said prayer for adjournment was rejected and the evidence of the plaintiffs’ side was closed. Thereafter, the suit was fixed on 6.6.2009 for necessary orders. 3. The petition No. 465/8 dated 14.5.2009, by which the plaintiffs/ petitioners through their counsel filed adjournment petition on the ground that the plaintiffs were busy due to some urgent works and as a result they could not contact their counsel appearing on behalf of them and the evidence on affidavit could not be prepared. The learned trial court rejected the said application vide order dated 14.05.2009 by an observation that the plaintiffs/ petitioners had taken more than three adjournments and the ground shown in the said adjournment petition was not reasonable and accordingly evidence of plaintiffs’ side was closed fixing 6.6.2009 for necessary order. On the next date i.e. on 06.06.2009, the court below dismissed the suit as there was no evidence on record to prove the case of the plaintiffs/ petitioners. 4. Being aggrieved with the dismissal of the said suit vide order dated 6.6.2009, the plaintiffs/ petitioners filed Misc. Case No. 111/2009 under Order 9 Rule 9 of the CPC for setting aside the said dismissal order. 4. Being aggrieved with the dismissal of the said suit vide order dated 6.6.2009, the plaintiffs/ petitioners filed Misc. Case No. 111/2009 under Order 9 Rule 9 of the CPC for setting aside the said dismissal order. In the said petition under Order 9 Rule 9 of the CPC, the petitioner took a plea that they are residing about 35 kilometers away from Silchar town and filed TS No. 641/06 and they never came to the court and were unaware with respect to the legal procedure and as such they were completely dependent upon their engaged counsel with an expectation to get information from him. Unfortunately no intimation was given to them by their counsel to present themselves before the court for filing the evidence. It is on 7.6.2009 the plaintiffs/ petitioners could come to know from the defendants/ respondents that the suit was dismissed. Thereafter in order to verify the same the present petitioners came to the court and contacted the counsel wherefrom it came to the knowledge of them that the same was dismissed on 6.6.2009 owing to non-submission of evidence by them. 5. The defendants/ respondents raised their objection against the said prayer made by the plaintiffs/ petitioners for restoration of suit after the dismissal. In the said proceeding under Order 9 Rule 9 of the CPC, evidence was led by the petitioners. From the evidence, the learned trial court came to the finding that the plaintiffs/ petitioners used to come to meet the advocate and at the same time his advocate gave the information about the stages of the suit. However, admittedly in the evidence by way of the affidavit filed by the petitioners it was deposed about the fact of sending of letters by the advocate, but the same were not produced. Accordingly it held that the counsel appearing on behalf of the petitioners was not negligent and that three adjournments had already been taken and steps for adjournments were also taken by the advocate. The allegation of negligence on the part of the advocate was not accepted by the learned court below. The said application was dismissed vide order dated 29.5.2010, passed in Misc. Case No. 111/09 arising out of TS No. 641/06. 6. Thereafter Misc. Appeal No. 23/10 was filed in the court of the learned Civil Judge (Senior Division), No.1 Cachar Silchar challenging the order dated 29.5.2010 as aforesaid. The said application was dismissed vide order dated 29.5.2010, passed in Misc. Case No. 111/09 arising out of TS No. 641/06. 6. Thereafter Misc. Appeal No. 23/10 was filed in the court of the learned Civil Judge (Senior Division), No.1 Cachar Silchar challenging the order dated 29.5.2010 as aforesaid. The appellate court also vide judgment and decree dated 1.10.2011 dismissed the said appeal. Being aggrieved by the judgment and decree dated 1.10.2011, the petitioners have preferred this revision petition. 7. Mr. Dey submits that the present petitioners are the villagers and they are not aware with regard to the procedure of law in conducting the suit. Though the finding of both the courts below in conducting the suit by the advocate was not negligent, but the court below held that the suit was dismissed due to laches and negligence of the petitioners only. Accordingly, Mr. Dey submits that if the dismissal order is not set aside, irreparable loss would be caused to the plaintiffs/ petitioners and as their suit is for declaration of right, title and interest over the suit property and dismissal of the said suit under Order 9 Rule 9 CPC bars a fresh suit. So, Mr. Dey sought for interference of this court by setting aside the impugned judgment and decree. 8. Mr. Barbhuiya, learned counsel, appearing for the respondents/ defendants raised objection and submits that both the courts below had correctly come to the conclusion that there was no negligence on the part of the conducting advocate and there was negligence on the part of the plaintiffs/ petitioners. The petitioners are fully aware that they are supposed to come to the court to file evidence on affidavit and even then they were negligent in coming to the court causing inconvenience and harassment to the defendants/ respondents. Mr. Barbhuiya accordingly submits that the revision is liable to be dismissed. 9. Considered the submissions of the learned counsels, appearing on behalf of both the parties. The reasoning of the court below in not allowing the prayer of the petitioners is that the conducting counsel was not negligent in conducting the said suit, but the petitioners were negligent. This fact itself is a material piece of evidence flowing from the mouth of the petitioner himself. The reasoning of the court below in not allowing the prayer of the petitioners is that the conducting counsel was not negligent in conducting the said suit, but the petitioners were negligent. This fact itself is a material piece of evidence flowing from the mouth of the petitioner himself. The court below seems to be a bit hyper technical in passing the said impugned order inasmuch as the suit could have been restored by imposing a heavy cost at least to mitigate the inconvenience caused to the defendants/ respondents for negligence on the part of the petitioners. 10. Considered the same and for the ends of justice, this court set aside the impugned judgment dated 1.10.2011, passed in Misc. Appeal No.23/2010 by court of the learned Civil Judge (Senior Division) No.1, Cachar, Silchar along with the order dated 6.6.2009 and order dated 14.5.2009, passed by the trial court in TS No. 641/2006 subject to payment of cost of Rs. 8,000.00 (Rupees eight thousand) only before the trial court where after the learned trial court shall allow the plaintiffs / petitioners of the suit to adduce evidence within a period of two weeks from the date of appearance. The parties to the suit shall appear before the trial court on 22.10.2017. Any further default on the part of the plaintiffs/ petitioners in filing the evidence on affidavit and in presenting themselves for cross-examination along with the supporting witnesses would amount to closure of evidence of the plaintiffs’ side. 11. Interim order passed earlier stands vacated. 12. This revision petition is accordingly disposed of.