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2017 DIGILAW 279 (GAU)

Jamal Uddin Mazumder v. Abdul Haque Barbhuiya

2017-03-03

KALYAN RAI SURANA

body2017
JUDGMENT & ORDER : 1. Heard Mr. J. Laskar, the learned counsel for the petitioners. 2. By filing the present application under Article 227 of the Constitution of India, the petitioners have assailed the order dated 14.02.2017 passed by the learned Civil Judge, Hailakandi, in T.S. No. 70/2005. By the said order petition No. 638/20 filed by the petitioners praying to file additional written statement was rejected. 3. The brief introductory fact of the case is that the respondent herein had instituted T.S. No. 70/2005 against the father of the petitioners, namely Ataur Rahman and two others for specific performance of contract, inter-alia, praying for registering a sale deed by accepting balance sale consideration. During the pendency of the said suit, the father of the petitioners herein had expired and they were substituted as his legal representatives in the suit. Thereafter, the petitioners had filed their additional written statement and later on, the respondent herein had filed the evidence in chief of PW-1. 4. On 04.02.2017, the petitioners had submitted an application under Order VI Rule 9 read with section 151 of Civil Procedure Code for allowing them leave to file additional written statement, which was numbered as Petition No. 637/18 dated 04.02.2017. The ground on which the said petition was filed is extracted herein below:- “3. That, when we contacted our lawyer, who instructed us to put signatures on certain papers, which was written in English, which was our written statements and that was submitted on 25th Feb/2015, and the real meaning of which was not explained to us nor it was translated to us. Since we do not have any knowledge of execution of any Agreement for sale of certain plot of land by an between the plaintiff and our father, nor our father had told us about the fact of execution of said Agreement for Sale. 4. That, since the plaintiff side had adduced evidence in chief of P.W.-1, in vernacular language, and from which we could able to know that, we have admitted the fact of plaint through our written statements, and if it was so happen then the same was done beyond our knowledge and consent and we are totally unaware about the fat of admission, since we do not know English language, and meaning of which was neither explained to us nor translated. 5. 5. That, from the reading of evidence –in-chief of P.W.-1, we could learnt that, the contents of our written statements is required to be replaced /rectified by way of additional written statements for ends of justice, otherwise we the defendants shall suffer from irreparable losses. So, let an opportunity be given to the defendants to submit their additional written statements, so as to contest the suit.” 5. The learned counsel for the petitioners had submitted that during the pendency of the suit, the matter was compromised amicably between the parties and pursuant to the said compromise, a plot of land was registered in favour of the respondent herein by executing a sale deed dated 19.02.2014. It was projected that when on 19.02.2015, the PW-1 had filed his evidence-on- affidavit, the petitioners found that the respondent was silent on the settlement. Hence, the prayer for allowing them leave to file additional written statement was filed. However, the said petition No. 637/18 dated 04.02.2017 was rejected by the order impugned herein for the short and precise reason that the suit was at present in the stage of cross examination of PW-1. 6. The learned counsel for the respondent has appeared by filing a caveat and he had argued that the impugned order was sustainable on facts and in law. 7. This court, upon hearing the learned counsel for the parties and on the perusal of the materials on record has observed that the original defendant i.e. the predecessor-in-interest of the petitioners had submitted his written statement on 01.03.2006 and after his death and on substitution of the present petitioners, they had submitted their separate written statement. There is a categorical admission therein to the following effect - “3. That, no other them (sic. than) the plea taken by late Ataur Rahman Mazumder is taken by these defdts.” 4. That, defdts. accept the w/s submitted by late Ataur Rahman Mazumder.” 8. There is no statement in the present revision as to the date on which the petitioners had filed their written statement. That, no other them (sic. than) the plea taken by late Ataur Rahman Mazumder is taken by these defdts.” 4. That, defdts. accept the w/s submitted by late Ataur Rahman Mazumder.” 8. There is no statement in the present revision as to the date on which the petitioners had filed their written statement. Nevertheless, having expressly accepted the stand taken by the predecessor- in- interest of the petitioners, it is not open for the petitioners in their petition No. 637/18 to shift the blame entirely on their learned counsel by alleging that their counsel had taken signature on the written statement without explaining or translating to them what was written therein as well by blaming their dead father by alleging that while he was alive, he also did not inform the petitioners about the execution of the agreement for sale. The said plea is found to absolutely untenable because as referred above, there is a statement in the present revision that a plot of land was registered in favour of the respondent herein by executing a sale deed dated 19.02.2014, about which the PW-1 had remained silent. It is, therefore, presumed that such transfer must have happened in course of part performance of contract for sale. Moreover, the said plea of shifting all fault on the learned counsel is not at all appreciated or desired because if that stand is accepted, then one can even find fault even in the affidavit sworn in support of the present application, because in the said affidavit, there is no duly sworn or verified statement by the petitioners that they have been duly informed about the contents of the petition as well as the affidavit after due translation in Assamese by their learned counsels. Therefore, if the petitioners have signed the written statement on their own volition, then it is presumed that they are aware of its contents, for which it is not permissible for the petitioner to disown the statements made in their written statement. The said plea is further deprecated because the petitioners appear to be highly negligent if they have elected not to subsequently make any attempt to understand what was the contents of their written statement as it is not their case that they were prevented from holding and/or reading the copy of the written statement. The said plea is further deprecated because the petitioners appear to be highly negligent if they have elected not to subsequently make any attempt to understand what was the contents of their written statement as it is not their case that they were prevented from holding and/or reading the copy of the written statement. Thus, if the petitioners were not vigilant, they are bound to suffer for it and nobody else including their learned counsel can be accused of any negligence as it was the duty of the petitioner to first understand the writing which was intended to be filed before a court of law and then sign their written statement. Hence, the application for leave to file additional written statement is found to be not maintainable as it is not necessitated by subsequent event, but it appears to be filed for filling up the lacuna, which came to be detected after hearing had begun. 9. Thus, no infirmity is found in the order dated 14.02.2017 passed by the learned Civil Judge, Hailakandi in T.S. No. 70/2005, which is impugned herein. The learned court below is found to have exercised its jurisdiction correctly by rightly rejecting the said petition No. 637/18 dated 04.02.2017. 10. The revision is found devoid of any merit and the same is dismissed. The parties are left to bear their own cost.