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2017 DIGILAW 236 (CAL)

Sahina Haque v. Tazamul Haque

2017-03-01

JYOTIRMAY BHATTACHARYA, TAPASH MOOKHERJEE

body2017
JUDGMENT : Jyotirmay Bhattacharya, J. This first appeal is directed against an order being No. 48 dated 14th June, 2016 passed by the learned Judge, Small Causes Court, Sealdah in Title Suit No. 40/15 (R-170/15) at the instance of the plaintiff No. 2/appellant. 2. By the impugned order, the plaintiffs' suit for partition was dismissed under Order 16, Rule 20 of the Civil Procedure Code for non-compliance of the Court's order regarding filing of evidence-in-chief by affidavit by the plaintiffs in court. 3. At the time when an application for injunction filed in connection with the said appeal was taken up for hearing, we are invited by the learned counsel appearing for the parties to dispose of the appeal itself on merit on the basis of the materials available before us. We are informed that all the papers which are necessary for disposal of the appeal are annexed to the application for injunction. 4. Considering such submission of the learned counsel of the parties, we have decided to dispose of this appeal on merit on the basis of the papers available before us by dispensing with the requirement of filing paper book in this appeal. The respondent nos. 3, 4 and 5 were the plaintiffs. They have not filed any appeal challenging the order of dismissal. As such, even assuming that the order of dismissal is maintained by this Court, they have nothing to be aggrieved. As such, we feel that presence of those respondents is not necessary for disposal of this appeal on merit. Under such circumstances, we have heard the learned advocate appearing for the plaintiff No. 2/appellant and the learned advocate appearing for the defendant nos. 1 and 2/respondent nos. 1 and 2. 5. Let us now consider the merit of the instant appeal in the facts of the present case. 6. The appellant and the respondent nos. 3, 4 and 5 filed a suit for partition against the respondent nos. 1 and 2. The defendant nos. 1 and 2/respondent nos. 1 and 2 herein filed written statement in the said suit contending therein that the plaintiffs have no share in the suit property as their father sold and transferred his right, title and interest in respect of the suit property to the defendant nos. 1 and 2/respondent nos. 1 and 2 herein in the year 1973. 1 and 2/respondent nos. 1 and 2 herein filed written statement in the said suit contending therein that the plaintiffs have no share in the suit property as their father sold and transferred his right, title and interest in respect of the suit property to the defendant nos. 1 and 2/respondent nos. 1 and 2 herein in the year 1973. They, thus, prayed for dismissal of the said suit for partition. 7. Immediately thereafter, the plaintiffs filed an application before the learned Trial Judge for giving inspection of the original sale deeds allegedly executed by their father in favour of the defendant nos. 1 and 2. Such prayer having been rejected by the learned Trial Judge, the plaintiff No. 2/appellant approached this Court by filing an application under Article 227 of the Constitution of India which was disposed of by a learned Single Judge of this Court on 2nd March, 2016 whereby the defendant nos. 1 and 2 were directed to supply the photostat copy of deed no. 189 of 1973 and deed no. 190 of 1973 relied by them in the written statement to the plaintiffs in the Trial Court within a week from the date of the said order. 8. The defendant nos. 1 and 2 were also directed to offer inspection of the original deeds, if asked for, in the meantime. The plaintiff/appellant was also directed to file evidence-in-chief within two weeks thereafter. 9. In pursuance of such direction passed by the learned Single Judge of this Court on 2nd March, 2016 in C.O. 625 of 2016, photostat copies of those two deeds were supplied to the plaintiffs within the time allowed to them. Inspection of the original deeds was also offered to the plaintiffs. 10. The plaintiffs, however, did not file evidence-in-chief by affidavit within the time granted to the plaintiffs by the order passed by this Court on 2nd March, 2016. Be it noted here that even before the order was passed by the learned Single Judge of this Court in the said revisional application, the plaintiffs filed an application under Order 6, Rule 17 of the Code of Civil Procedure praying for amendment of the plaint for introducing a challenge with regard to the legality and/or validity of those two deeds which were allegedly executed by their father in favour of the defendant nos. 1 and 2. 1 and 2. Such prayer for amendment was allowed by the learned Trial Judge with a direction that the plaintiffs were allowed to amend their pleadings. The plaintiffs also filed the amended pliant in terms of the direction passed by the learned Trial Judge. 11. The defendant nos. 1 and 2 have also filed their additional written statement controverting the claim made by the plaintiffs in their amended pleadings. 12. After completion of the pleadings of the parties, the suit was again posted for hearing on 14th June, 2016. On 14th June, 2016, the plaintiffs did not file the evidence-in-chief by affidavit. They filed an application praying for adjournment on the ground of illness of the plaintiff No. 1. 13. Though there were three more plaintiffs in the said suit, the reason, which prevented them from appearing before the court and from tendering the evidence in-chief by affidavit on 14th June, 2016, remains unexplained. Thus, even assuming that the plaintiff No. 1 was ill and due to her illness, she was unable to appear before the court for tendering the evidence-in-chief by affidavit, but such step could have been taken by anyone of the other three co-plaintiffs. But, this has not been done in the instant case. 14. If we consider the legality of the impugned order from this angel, then we possibly cannot come to a conclusion different from the conclusion which was drawn by the learned Trial Judge. Since a time bound order was passed by the Hon'ble High Court for filing evidence-in-chief by affidavit by the plaintiffs, such time could not have been extended by the learned Trial Judge. When under these circumstances, the learned Trial Judge dismissed the suit for non-compliance of the Court's order, we feel that the learned Trial Judge did not commit any illegality in passing the impugned order. 15. However, considering the nature of the suit and the submission of Mr. Chatterjee, learned advocate appearing for the appellant that his client will file the evidence-in-chief by affidavit by 14th March, 2017, we feel that justice will be sub-served if another chance is given to the plaintiff for enabling her to participate in the trial of the suit, so that the suit can be decided ultimately on merit. Accordingly, we set aside the impugned order and restore the suit to its original position subject to payment of cost of Rs. Accordingly, we set aside the impugned order and restore the suit to its original position subject to payment of cost of Rs. 25,000/- (Rupees twenty five thousand only) to the defendant nos. 1 and 2/respondent nos. 1 and 2 herein provided, however, the plaintiff files the evidence-in-chief by affidavit by 14th March, 2017 in the Trial Court. 16. Let it be clearly understood by the plaintiff/appellant that no further extension will be granted for filing evidence-in-chief by affidavit by the plaintiff/appellant under any circumstances as the date for submission of such evidence-in-chief by affidavit is peremptorily fixed by this Court. 17. It is also made clear that the evidence-in-chief by affidavit will be accepted by the court provided the cost is paid to the defendant nos. 1 and 2/respondent nos. 1 and 2 herein within a week from date. Such payment will be made by way of account payee cheque to be drawn in the name of either the defendant No. 1 or the defendant No. 2 to be made over to the learned advocate-on-record of the defendant nos. 1 and 2 in the court below. 18. Needless to mention here that the cheque will be accepted by the defendant nos. 1 and 2 and/or their learned advocate upon grant of receipt to the plaintiff/appellant. 19. Both the appeal and the application for injunction being CAN 7219 of 2016 thus stand disposed of. 20. Leave is granted to the learned advocate-on-record of the appellant to take down the gist of this order and communicate the same to the learned Trial Judge and the learned Trial Judge is requested to act upon such communication. 21. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.