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2017 DIGILAW 183 (GAU)

Sahidur Rahman v. Mahnur Ali

2017-02-10

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : 1. Heard Mr. N.N. Karmakar, learned counsel for the petitioner. 2. The petitioner in this application under Article 227 of the Constitution of India is the plaintiff in TS No. 56/2014 (earlier numbered as TS No. 273/13), which is now pending for disposal before the Court of Civil Judge, Kamrup (R), Amingaon. The respondents-defendants No.1 and 3 contested the suit by filing their written statements, wherein amongst others, it was stated that the suit was barred under the principles of res-judicata as two suits i.e. TS No. 245/08 and TS 479/11 previously instituted by the petitioner- plaintiff was dismissed, which were in respect of same suit land and seeking the same reliefs. 3. Thereafter the said respondents- defendants had filed a petition, bearing petition No. 648/14 before the learned trial court under Or.XIVR.2(2) CPC, claiming that although the previously instituted TS No. 245/08 was dismissed by the learned Court of Munsiff No.1, Guwahati, by suppressing the said fact another suit i.e. TS No. 497/11 was instituted by the petitioner- plaintiff for the same suit land, which was also dismissed by the learned Court of Munsiff No.4, Guwahati. Therefore, it was prayed that the issue of the present suit being barred by the principles of res-judicata be taken up as a preliminary issue. The petitioner herein filed his written objection and took a plea that as those two suits were dismissed for default without being heard and finally decided, those two suits cannot be denoted as ‘former suits’. 4. In this revision, it is projected that by an order dated 17.01.2015, the learned trial court had passed an order to call for the records of the said two previously instituted suits. There is no challenge to the said order, for which the same has attained finality. There is no statement in this present revision why the said order has not been annexed. It is stated that though the record of TS 479/11 was received by the learned trial court on 11.07.2016, but the record of TS No. 245/08 is still awaited as a result, his suit is pending sine die. 5. It has been alleged in this revision petition that there has been a flagrant violation of law by the learned court below by calling for the records of the two previous suits on its own motion and entails grave dereliction of duty of court below. 6. 5. It has been alleged in this revision petition that there has been a flagrant violation of law by the learned court below by calling for the records of the two previous suits on its own motion and entails grave dereliction of duty of court below. 6. The following prayers as made in the present revision petition are re-produced below in verbatim:- a. Hear the parties on petition No. 648/2014 dated 13.02.2014 (Annexure-3) filed by the respondents in T.S. No. 56/2014 and dispose of it incompliance with mandate of law within the time limit bound by this Hon’ble Court in that respect and b. Try the T.S. No. 56/2014 in accordance with law within the time limit bound by this Hon’ble Court in this regard and c. Make any such other and further order/orders as this Hon’ble Court may deem fit and proper in the circumstances of the case. 7. On perusal of the documents filed by the petitioner, this court finds that the petitioner has not made any statement that he had filed any petition before the learned trial court to enable the said learned court to take steps to secure the records that were called for at an early date. Moreover, the petitioner, who was admittedly the plaintiff in those two previously instituted suits is deemed to have copy of the previously instituted suits with him, but he chose not to file the same on oath. Owing to non filing of copy of plaint by the petitioner, this court is compelled to draw two presumptions, either the petitioner does not have copy of the plaint, for which the calling of the records are found to be all the more important and justified, or the petitioner does not want the learned trial court to read the plaint of the two previously instituted suits to suppress the subject matter of those suits, which legally speaking is covered by illustration (g) of section 114 of the Evidence Act that the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. 8. As per the provisions of Or. IX Rule 9(2) CPC, it is provided that if a suit is dismissed for default, the subsequent suit is barred on the same cause of action. 8. As per the provisions of Or. IX Rule 9(2) CPC, it is provided that if a suit is dismissed for default, the subsequent suit is barred on the same cause of action. Therefore, this court is of the opinion that the learned Civil Judge did not commit any illegality, rather, correctly called for the records of the two previously instituted suits because such records are found to be of utmost importance to find out whether the subject matter and/or the cause of action of the present suit is same/ similar to those two previously instituted suits. This court is of the further opinion that the allegation that the learned trial court committed any fragrant violation of law or that it has committed any dereliction of duty is baseless, unfounded and totally uncalled for. 9. Moreover, it is not the allegation of the petitioner that the learned trial court had ordered calling for the record of the said two suits, but did not take steps to call for the records. The receipt of records of TS No. 479/11 is a testimony to show that the learned trial court had indeed taken steps for calling the records. Having taken steps for requisitioning such records, the learned trial court has no option to await receipt of such records in the absence of any petition being moved by the petitioner to issue a fresh reminder for the same. Hence, there is no justification for the petitioner to make an allegation that the learned trial court committed any fragrant violation of law or that it has committed any dereliction of duty, when the petitioner is found lacking in taking an initiative to produce the copy of plaint of his previously instituted suit. Of course, this court is conscious about the fact that as per the orders passed by the learned trial court, no duty was cast on the petitioner to produce copy of his previously instituted plaint, but when he alleges dereliction of duty and violation of law against the court, such a litigant must be made aware of what duty he owes to the court before making such serious allegation. 10. The other allegation by the petitioner that his suit is pending sine die is again absolutely untenable. 10. The other allegation by the petitioner that his suit is pending sine die is again absolutely untenable. The literal meaning of the word ‘sine-die’ is “without fixing a date”, but in the present revision petition, the petitioner has specifically given 16 dates on which suit was posted. To quote from paragraph 9 of the revision, the dates on which the suit was posted are – “03.03.2015, 20.04.2015, 16.05.2015, 02.06.2015, 16.07.2015, 25.08.2015, 16.10.2015, 22.12.2015, 11.02.2015, 17.03.2016, 21.04.2016, 10.06.2016, 11.07.2016, 30.08.2016, 02.11.2016 and 07.02.2017”. However, as per Annexure-11, the date fixed for record was 22.12.2016, which is not referred hereinabove. Be that as it may, the petitioner has only annexed orders passed on 7 (seven) dates, with no explanation why the petitioner has withheld from producing orders passed on 9 (nine) other dates to which he has referred to in the revision petition. This, court, therefore, is once again compelled to draw a presumption under section 114 illustration (g) of Evidence Act that the record, if produced would have been unfavourable to the petitioner. 11. Coming to the prayer (a) made in this revision, the said prayer as reproduced herein before cannot be granted because as per the own showing of the petitioner, the learned trial court has already called for the records, in the absence of which the learned trial court cannot come to any definite conclusion as to what are the subject matter of the three suits. Moreover, the record of one of the previous suits has not yet secured, as such, it would be impossible for this court to prescribe a time frame within which petition No. 648/14 should be disposed off. Hence, the said prayer (a) is rejected at this stage. In so far as the prayer (b) of this revision is concerned, it is seen that the trial of the suit is yet to commence, as such, it would be impossible for this court to prescribe a time frame within which the suit should be disposed off. Hence, the said prayer (b) is also rejected at this stage. 12. Accordingly, this petition is found to be devoid of any merit and the same is dismissed in limine.