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2017 DIGILAW 1169 (GAU)

JUNMONI DAS @ SURAJMONI DAS v. RAJIB DAS

2017-08-25

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : 1. Heard Mr. P.J. Saikia, the learned Counsel for the petitioner- appellant and Mr. A.R. Shome, the learned counsel appearing for the respondent. 2. Both the cases are taken up for analogous hearing as they are between the same parties and arise out of the proceeding of Misc. (G) Case No. 7/2015. a. The proceeding of FAO 12/2016 is an appeal under Order 43 Rule 1 of Civil Procedure Code, challenging the order dated 29.02.2016 passed by the learned District Judge, Dibrugarh in the said case, thereby rejecting petition No. 574/16 filed by the petitioner on maintainability of the guardianship case instituted by the respondent., b. CRP 148/2016 is an application under Section 115 of the Civil Procedure Code, challenging the order dated 02.04.2016, passed by the said learned Court, thereby rejecting the adjournment petition bearing petition No. 866/16 and closing the examination- in- chief of the petitioner. 3. The respondent husband has instituted a proceeding under Sections 7 and 9 read with section 17 of the Guardianship & Wards Act, 1890 and Sections 6 and 13 of the Hindu Minority and Guardianship Act, 1956 for appointing him as the Guardian of the minor son of the parties, who at that time was 10 years 5 months of age. The said application before the Court of the learned District Judge, Dibrugarh has been registered as Misc. (G) Case No. 7/2015. 4. The petitioner contested the case by filing written statement and amongst others, took a plea that the petition was not supported by a declaration as required under section 10(3) of the Guardianship & Wards Act, 1890 regarding (i) absence of averment of willingness of the proposed guardian to act, (ii) petition did not contain any declaration signed by the proposed guardian to act, and (iii) petition did not contain any declaration attested by at least two witnesses. Hence, by filing petition under section 10(3) of the said Guardianship & Wards Act, 1890, the petitioner had prayed for rejecting the petition for guardianship and for deferring the further proceeding till disposal of the said petition. Hence, by filing petition under section 10(3) of the said Guardianship & Wards Act, 1890, the petitioner had prayed for rejecting the petition for guardianship and for deferring the further proceeding till disposal of the said petition. It was mentioned in the said petition that the learned court had not accepted the written statement filed by the petitioner, which contained the preliminary issue, and therefore, by approaching this Court by filing CRP 558/15, the order for not accepting the written statement was assailed and this Court by order dated 01.02.2016, directed the said learned court to accept the written statement and, as such, there was no delay in raising the preliminary issue. The said petition was numbered as Petition No. 574/16 dated 29.02.2016 and the said learned court, upon hearing both sides, was pleased to reject the said petition. However, the said learned court accepted the counter-claim filed by the petitioner was accepted and one more chance was given to the petitioner to lead evidence in support of her case. This order is in challenge in the appeal. 5. The petitioner did not file her evidence – on- affidavit, but prayed for adjournment on 15.03.2016, which was allowed. On 21.03.2016, which was the next date fixed, the petitioner once again prayed for adjournment, and the learned court while taking note of the observations made by this court in order dated 01.02.2016 in CRP 558/15, expressed its dis-satisfaction by the prayer for adjournment, but for ends of justice, granted one more opportunity to the petitioner to submit evidence of all the remaining witnesses. On 02.04.2016, which was the next date fixed, though the petitioner submitted the evidence of DW-3, but by filing petition No. 866/16, once again prayed for adjournment on the ground that the child could not be produced as witness as his school was open. The learned District Judge, Dibrugarh, by order dated 02.04.2016 deemed it fit to examine the child as Court Witness, rather than party’s witness and closed the evidence of the petitioner and the case was fixed on 29.04.2016 for cross- examination of DWs. This order is in challenge in CRP 148/16. 6. The learned Counsels for both the sides have advanced their respective arguments. In support of his argument, the learned counsel for the petitioner has placed reliance on the case of (i) Rabindra Nath Mukherjee Vs. This order is in challenge in CRP 148/16. 6. The learned Counsels for both the sides have advanced their respective arguments. In support of his argument, the learned counsel for the petitioner has placed reliance on the case of (i) Rabindra Nath Mukherjee Vs. Abinash Chandra Chatterjee, AIR 1972 Cal 143 , and (ii) Aisha Vs. Bashir Ahmad Haji, AIR 1987 J&K 68 . In so far as the appeal is concerned, it would appear that the petition No. 574/16 dated 29.02.2016 was an application for rejection of plaint/ petition for guardianship being not maintainable as it was barred for non- compliance of the statutory requirement of Section 10(3) of the Guardianship & Wards Act, 1890. 7. In the opinion of this Court, appeal is a creature of the statute and, as such, unless the law specifically provides for a right of appeal, an appeal may not be maintainable. In the present case in hand, the appeal has been filed under the provisions of Order XLIII Rule 1 CPC. The said provisions does not provide for an appeal for refusal to reject the plaint/ petition. Therefore, the present appeal is found to be not maintainable. Therefore, the appeal is dismissed. However, owing to the nature of grievance raised, without expressing any opinion on the merit of the plea taken by the petitioner, liberty is granted to the petitioner to avail any other remedy as she may be so advised within a period of one month from today. It is provided that if any such application is filed by the petitioner within the time allowed, the petitioner would then be entitled to claim exclusion of the period of limitation from 14.03.2016, being the date of filing of the FAO 12/2016 till the date of filing of such application. 8. Similarly, the revision has been filed under section 115 CPC. Therefore, as the order sought to be revised, if it had been passed in favour of the petitioner would not have disposed of the Misc. (G) Case No. 7/2015. Hence, even this revision is not found to be maintainable. 9. However, in so far as the order dated 02.04.2016 is concerned, by which the evidence of the petitioner is closed, this court has observed that by order dated 02.04.2016, the counter-claim of the petitioner was allowed. Therefore, she is entitled to lead evidence on her counter-claim as well. Hence, even this revision is not found to be maintainable. 9. However, in so far as the order dated 02.04.2016 is concerned, by which the evidence of the petitioner is closed, this court has observed that by order dated 02.04.2016, the counter-claim of the petitioner was allowed. Therefore, she is entitled to lead evidence on her counter-claim as well. Therefore, if the impugned order is allowed to stand, the counter-claim of the petitioner would be frustrated, as the petitioner would have to lead her evidence in respect of the counter-claim. As such, this court is of the opinion that if the said order is allowed to stand, both the parties shall suffer injustice, because not only the petitioner will not be able to lead evidence on counter-claim, but the petitioner would also stand prejudiced as because by now the PWs is also closed. Hence, under extraordinary circumstances, this court is compelled to invoke the provisions of Article 227 of the Constitution of India to partly interfere with the order dated 02.04.2016. By maintaining the said order dated 02.04.2016, in so far as it relates to accepting the counter-claim and treating the child as court witness, the other part of the said order in so far as it relates to closure of the evidence of the petitioner is interfered with by setting that part aside. Consequently, the learned court shall grant at least 3 weeks day’s time from the date of appearance to the petitioner to file all her evidence, failing which such opportunity would be forfeited and her right to submit evidence shall stand closed. The learned District Judge, Dibrugarh shall make an attempt to hear the case as expeditiously as possible, if required, by appointing Court Commissioner to record cross- examination in the court complex on day- to- day basis, subject to convenience as well as keeping in mind the other judicial work of the said learned court, and also bearing in mind the order passed by this Court in CRP 558/15. 10. Resultantly, the FAO 12/2016 is dismissed with liberty as indicated above. The revision stands partly allowed as indicated above. The parties are left to bear their own cost. 11. 10. Resultantly, the FAO 12/2016 is dismissed with liberty as indicated above. The revision stands partly allowed as indicated above. The parties are left to bear their own cost. 11. The parties, who are duly represented by their respective learned Counsels herein, are directed to appear before the Court of the learned District Judge, Dibrugarh on 11.09.2017 without any further notice of appearance and by producing the certified copy of this order, shall seek further instructions from the said learned court.