Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 339 (GAU)

AL-HAZ MAZIBUR RAHMAN v. MAKHANI

2017-03-17

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : Heard Mr. S.P. Roy, learned Counsel for the petitioner and Mr. A Iqbal, learned Counsel for the respondents who have appeared as caveators. As all the parties are represented, the matter is heard on merit as a short point is involved in this case. 2. The petitioner is the plaintiff and the respondents are the defendants in T.S. No. 170/2004, which is pending for disposal before the Court of Civil Judge No.3, Guwahati. The facts relevant for the purpose of this present case is that by judgment and order dated 31.08.2004 passed by the Division Bench of this Court in F.A.O. No. 37/2004, made the following observations:- “This appeal is therefore, disposed of with a direction to the learned Civil Judge (Sr. Division) No. 3, Guwahati to appoint an Amin Commissioner for survey of the land and for submitting report about the area in possession of the respective parties. On receipt of such report and after hearing the learned counsel for the parties, the learned Civil Judge shall dispose of the suit in accordance with the provisions of law. Till the report of the Amin Commissioner is received and final orders passed thereon or till disposal of the suit whichever is earlier, status-quo in respect of the Schedule-C land shall be maintained by the parties.” 3. In the order dated 27.03.2015 passed by the learned Trial Court, it is mentioned that by a previous order dated 16.10.2004, the Circle Officer, Guwahati Revenue Circle was appointed as an Amin Commissioner to survey the land in dispute at the cost to be jointly borne by the parties. As per the said order, no writ for Commission was issued pursuant to the said order dated 16.10.2004. Hence, by the said order dated 27.03.2015, the petition No. 5263/14 filed by the petitioner- plaintiff under Order XXVI Rule 9 read with section 151 of the Code of Civil Procedure, was allowed in terms of the order dated 16.10.2004, directing the Amin Commissioner to make a survey in order to determine the area of land in possession in consonance of the order dated 31.08.2004 passed by this Court in FAO No. 37/2004, with a further direction to carry out the necessary survey expeditiously and diligently without fail and shall submit a report on or before the next date fixed in the case. The learned counsel for the petitioner states that previously in October, 2015, Revenue Staff had come to carry out the survey and measurement, but in violation of the order, they attempted to measure the land of the petitioner first, which would have been in violation of the order passed by this Court and on objection by the petitioner, the land revenue staff left instead of carrying out the survey and measurement in terms of the direction contained to measure the land of the defendants first. 4. On the basis of petition No. 2226/16, the learned trial court passed an order dated 01.08.2016, directing the Amin Commissioner to measure and survey the land of the defendants first and then to measure the land of plaintiff in both Dag Nos. 1885 and 1886. The petitioner by annexing the order sheet of the suit from 20.08.2016 has projected that the plaintiff had duly taken steps for issuance of writ of Commission on 20.08.2016, and it was issued vide Memo No. 1222 dated 23.08.2016. However, by order dated 07.09.2016, again the learned Trial Court directed the petitioner to take steps and such steps was taken, but it was not issued purportedly on the basis of an endorsement dated 14.09.2016 therein that the plaint did not contain any Schedule-D. It is projected that by overlooking the steps taken on record, the learned Trial Court fixed the suit on 03.10.2016, awaiting report of the Amin Commissioner. The next date of the suit was fixed on 08.11.2016 and on that date, the learned court recorded in its order that despite repeated orders, steps was not taken by the petitioner and directed the petitioner to taken steps on 08.11.2016 itself, failing which the suit would proceed for argument, fixing the suit on 02.12.2016 for Report of the Amin Commissioner as last chance. On 02.12.2016 there was a holiday and, as such on 03.12.2016, the suit was posted on 05.01.2017 for report of the Amin Commission. On 05.01.2017, the learned court fixed the case for argument on the ground that the steps with regard to the report of the Amin Commission was not taken and the suit was fixed for argument on 18.01.2017, but on the said date the learned Presiding Officer was on leave and the suit was fixed on 07.02.2017 for argument. 5. On 05.01.2017, the learned court fixed the case for argument on the ground that the steps with regard to the report of the Amin Commission was not taken and the suit was fixed for argument on 18.01.2017, but on the said date the learned Presiding Officer was on leave and the suit was fixed on 07.02.2017 for argument. 5. On 07.02.2017, the petitioners filed a petition under section 151 of the Code of Civil Procedure, which was numbered as Petition No. 412/17, and prayed for recalling the order dated 05.01.2017 as steps taken earlier was not issued and still lying on record. The learned Trial Court by order dated 17.02.2017 kept the order dated 05.01.2017 in abeyance for the time being and further held that if required, the said petition would be considered after arguments are over and posted the suit for argument on 03.03.2017. This order is impugned in the present revision. 6. The learned counsel for the petitioner argued that the petitioner had been vigilant all throughout and the steps taken by him was lying on the record, but the court having not issued it on erroneous ground, is now punishing the petitioner without caring to issue the steps on record. 7. Per contra, the learned counsel for the respondent vehemently argues for sustaining the said order. It was stated that the suit of the year 2004 is being delayed in the process. It is also submitted that Commission would be necessary only if the learned Trial Court was of the opinion that it cannot adjudicate the matter without such report. Moreover, by relying on a letter bearing No. Gu.Sa: 16/2013/9385 dated 17.05.2016 submits that the Revenue Staff had visited the suit land for carrying out survey and measurement on 06.10.2015 but the petitioner’s side objected to the work. The learned counsel for the respondent relies on the plaint to show that there are only Schedule-A, B and C therein and, as such, the learned Trial Court rightly did not issue the writ as Schedule-D was not there in the plaint. 8. This Court is not inclined to give any credence to the said letter, which is kept on record because from the contents of the said letter, it is not clear whose land was sought to measured and surveyed first. 8. This Court is not inclined to give any credence to the said letter, which is kept on record because from the contents of the said letter, it is not clear whose land was sought to measured and surveyed first. Nevertheless, it is apparent that the petitioner had taken steps, as is evident from the photocopy of certified copy of writ and endorsement dated 14.09.2017 contained on steps that Schedule-D not available in plaint. The learned court could have deleted Schedule-D before issuing it, if there was no other defect therein. 9. In the present revision, there is no prayer to set aside the order dated 05.01.2017 passed by the learned Trial Court. Therefore, without finding any fault with the order passed by the learned Trial Court, the impugned order dated 17.02.2017, in so far as it relates to fixing the suit for argument is set aside. 10. Nevertheless, be that as it may, the order to appoint Amin Commission was as per order dated 31.08.2004 passed by the Division Bench of this Court in F.A.O. No. 37/2004, by which this Court deemed fit and proper to direct the learned Trial Court to appoint such Commission. The steps taken by the petitioner, though defective could have been corrected and issued by the learned Court. Hence, this Court is inclined to give one last chance to the petitioner. 11. Hence, in the absence of any prayer to interfere with the order dated 05.01.2017, but to prevent the previous order dated 31.08.2004 in FAO No. 34/2004 to be frustrated and to do complete justice to the parties, this Court, by invoking extraordinary superintending jurisdiction under Article 227 of the Constitution of India, deems it fit to direct the learned Civil Judge No.3, Kamrup (M), Guwahati, to pass appropriate orders in connection with Petition No. 412/17 dated 07.02.2017 by allowing the Petitioner one last chance to take fresh steps for issuance of Commission correctly and in proper form without any defect to enable the learned Trial Court to issue such writ so as to enable the Commissioner, so appointed, to carry out the “survey to measure the land in possession of the parties” in terms of directions contained in order dated 31.08.2004 passed by this court. It would be also appropriate for the learned Trial Court to order that it would be open for the Commissioner to begin the survey and/or measurement of any of the suit land described in the plaint, irrespective of who is in possession of which land without any pre-condition. The learned Trial Court shall also make it open for the parties to record the process of measurement by way of photographs, video, etc., but it would not be open to any of the parties to the suit to raise any objection whatsoever to such measurement being done by the Commissioner, making it clear that if any party has any objection, that can only be raised before the learned Trial Court at the time of hearing of the suit. 12. As the suit is of the year 2004, it requires an early disposal. Hence, the learned Trial Court can also make it clear that if any party is directed to take any steps in connection of the appointment of Commission or for calling its report or for expeditious hearing of the suit, the said concerned party would promptly take correct steps to the satisfaction of the learned Trial Court for expeditious disposal of the suit, failing which it would be open of the learned Trial Court to pass any such order as it may deem fit and proper. 13. This revision stands allowed in terms as indicated above. The parties are left to bear their own cost.