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2017 DIGILAW 265 (CAL)

Kamal Hazra v. Nitish Majhi

2017-03-08

MIR DARA SHEKO

body2017
JUDGMENT : 1. The revisional application has been filed by the petitioners-plaintiffs assailing orders dated 29th February, 2016 and 29th March, 2016 passed by learned Civil Judge (Senior Division), 1st Court, Howrah in Title Suit NO. 16220 of 2014. Let the affidavit of service submitted by Mr. Karar be kept on record. 2. Mr. Bhattacharyya representing the opposite party nos. 1 and 2 is also present. Criticising the first impugned order dated 29th February, 2016 submitted that learned trial Court stayed the suit pending before him till disposal of the criminal case No. 184 of 2014, although the suit was at ex parte stage where the opposite parties-defendants had appeared and subsequently had chosen not to appear and not to contest. Mr. Bhattacharyya relying upon observation of the learned trial Court submitted that while learned trial Court on its own chosen to stay further proceedings of the suit till disposal of the criminal case under reference by postponing delivery of judgment and by extending interim injunction until further order, and, when by subsequent order dated 29th March, 2016 his earlier order was not altered with the observation that the Court had become functus officio, the High Court should not interfere with those discretionary orders. The copy of the plaint as submitted by Mr. Karar be kept on record since it is required for future reference. It appears that the Title Suit in question was filed for partition, declaration and permanent injunction, meaning thereby, apart from prayer of partition, there was a prayer for declaration that the Deed of Sale said to have been executed and registered by one Rana Hazra on 27.5.2013 being deed No. 5042 for the year 2013 in favour of opposite party no. 1 i.e. defendant no. 1 Nitish Majhi is null and void and thereby not binding upon the petitioners. 3. Admittedly, a written complaint lodged by the petitioner no. 2 Uma Hazra against both the opposite parties under the order of learned Chief Judicial Magistrate, Howrah was forwarded to the Domjur P.S., District-Howrah within the ambit of Section 156(3) of Cr P C and a criminal case accordingly was registered at Domjur P.S. for the offences under Sections 418/420/406/506/464/468 of Indian Penal Code. Let a copy of the said FIR supplied by Mr. Karar be also kept on record. Upon instruction Mr. Let a copy of the said FIR supplied by Mr. Karar be also kept on record. Upon instruction Mr. Karar has apprised the Court that charge sheet has been submitted on completion of investigation and the trial is yet to commence. By the first impugned order dated 29th February, 2016, it appears that learned trial Court had chosen to postpone ‘delivery of judgment’ and stay the suit till disposal of the criminal case with the following observation which is set out herein: “However, in the present facts and circumstances, it appears that the plaintiffs have also initiated criminal proceedings against identical issues. The main allegation in the civil suit, regarding cheating by false impersonation and commission of offence of forgery are also the matters in issue in the criminal complaint case No. 184 of 2014, which is pending for disposal in the Ld. Criminal Court. As such due to such simultaneous trial, any observation on the basis of ex parte evidence may cause embarrassment to the criminal proceeding against the accused (present defendants).” 4. Therefore, obviously and without any ambiguity, the first impugned order cannot be treated as any final order disposing a civil proceeding. Therefore, the observation of the learned trial Court in the second impugned order that he had become functus officio cannot be accepted, specially when the petitioners had persuaded that The learned trial Court should exercise the judicial discretion within the ambit of Section 151 of the Civil Procedure Code to recall earlier order and to pronounce ex parte order since the petitioner had allowed the suit to be heard ex parte. 5. It is redundant to lay observation that criminal case determines always the offence onus of which is lying upon the prosecution-complainant which may be proved beyond all reasonable doubts or the accused may find order of acquittal even by dint of benefit of doubt, has there been any dearth of proof. The term reasonable doubt again is subject to appreciation of evidence by learned Trying Magistrate dealing with the criminal charge. Degree of onus in a criminal case virtually is nil upon the accused. The term reasonable doubt again is subject to appreciation of evidence by learned Trying Magistrate dealing with the criminal charge. Degree of onus in a criminal case virtually is nil upon the accused. It makes no difference whether on conclusion of the stage of examination under Section 313 Cr P C the accused would examine any witness or not in support of this defence , and even if defence, if any, taken save and except plea of innocence, is not proved the accused is not blamed, because prosecution is to prove the charge. Whereas, in a civil proceeding determination of right of either of the parties is depending upon the pleadings supported by legal evidence. 6. Moreover, it is very much surprising that the selfsame opposite parties who though had appeared in the suit but why had chosen to disappear allowing the suit to be heard ex parte and again why and how they came up before this Court to find contest against this revisional proceeding which has been preferred assailing the aforesaid impugned orders without making any attempt to get the order of ex parte hearing of the suit set aside. Virtually the opposite parties within the precinct of this revisional proceeding have got no leg to stand. In the civil suit where Rana Hazra the opposite party no. 2, who is said to have executed the impugned deed, has been denied by the petitioner as a stranger to Mutu Hazra, and the alleged deed has been brought into existence allegedly on false personation by practicing fraud, the onus to that extent is lying upon the petitioners-plaintiffs. Similarly to establish that Rana Hazra was someone relating to Mutu Hazra having lawful right to make the impugned transfer the onus is lying upon the onus in the given circumstances is not one sided. Learned Trial Court perhaps omitted to grip the applicability of the principles of stay though over the same transaction there is simultaneous civil and criminal proceeding. However, since Mr. Learned Trial Court perhaps omitted to grip the applicability of the principles of stay though over the same transaction there is simultaneous civil and criminal proceeding. However, since Mr. Bhattacharyya expected some liberty so that his client may get opportunity to find contest in the suit and the suit is yet to be disposed of finally and though the conduct of the opposite parties is noticed of the nature of playing hide and seek game, nonetheless this Court does not desire debar the opposite parties from such liberty subject to making payment of reasonably adequate cost to be paid to the petitioners-plaintiffs before the learned trial Court within the stipulated time to be mentioned hereinabove as because they allowing the suit to be heard ex parte have come up to contest in the revision. 7. In view of above, both the orders impugned are set aside and quashed, and the revisional application being CO No. 3437 of 2016 is allowed however by giving liberty to the opposite parties to make appropriate application only within one month from this day (since the CO is being disposed of in presence of learned advocates of both the parties) along with a deposit slip showing payment of cost of Rs. 3,000/- in the Nezarath of Howrah Sadar, and, in turn learned trial Court shall recall the order of ex parte hearing of the suit and shall direct the opposite parties-defendants to submit written statements within next one month thereafter and shall proceed accordingly in the suit exhausting further stages of the suit. 8. Be it mentioned that on failure to comply the order by the opposite parties-defendants within the stipulated period, learned trial Court shall proceed with the suit ex parte and shall record ex parte order by which on the basis of the evidence adduced before him, both oral or documentary as the case may be. Learned trial Court may record the appropriate order by passing decree or dismissal of the suit. 9. Department is directed to communicate a copy of the order immediately to the learned trial Court. Parties are also given liberty to apply for urgent xerox certified copy of this order. 10. Compliance of this order may be done by the opposite parties attaching the server copy of this order, if there is any delay of communication.