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2017 DIGILAW 385 (CAL)

Prabhash Chandra Barman v. Sarbeswar Barman

2017-04-12

MIR DARA SHEKO

body2017
JUDGMENT : Mir Dara Sheko, J. 1. The application under Article 227 of the constitution of India has been directed assailing the order dated 2nd April, 2016 passed by learned District Judge, Cooch Behar, in Civil Revision No. 15 of 2015 arisen out of the order dated 24th June, 2015 passed by learned Civil Judge (Junior Division), Dinhata in Misc. Pre-emption Case no. 7 of 2007. 2. Despite service of notice upon the opposite parties, none appears to represent the opposite parties pre-emptors. Affidavit of service attached with the postal receipts and track report showing delivery of item be kept on record. 3. Therefore, the case is taken up for consideration on merit of course upon hearing Mr. Asis Bhattacharyya, learned counsel representing the petitioners pre-emptees. 4. Heard and perused the materials on record. 5. It appears that the witness no. 1 as P.W 1 for himself and on behalf of all other pre-emptors had examined in the pre-emption case as P.W 1 and his cross-examination was also completed. After completion of examination of P.W 1, P.W 2 was proposed to be tendered again for examination on behalf of the pre-emptors. 6. It appears that P.W 1 Sarbeswar Barman is the pre-emptor petitioner no. 1, and, the proposed P.W 2 Jagneswar Barman is the pre-emptor petitioner no. 2. 7. Learned Civil Judge attending the objection of the pre-emptees, declined to allow examination of P.W 2, since P.W 1 was already examined in the pre-emption case for himself and on behalf of all other pre-emptors. Therefore, if P.W 2 again would be every possibility to be examined there would be disparity to fill up lacuna. It is the practise and procedure of the rule of evidence by which all concerned are guided. Law is set at rest that on behalf of either side of a proceeding, as many as witnesses may be examined to their satisfaction. But while amongst parties, be it plaintiffs or defendants, if any of them is examined for himself and on behalf of other plaintiffs or defendants, as the case may be and had there been conclusion of cross-examination to that witness, in that event save and except any exceptional circumstances for the ends of justice, that too within the consideration of the Court only, either of the remaining parties is not entitled to adduce denovo evidence. Although, however, the said party would be at liberty to adduce some more corroborative evidence through other independent witnesses. This rule of evidence is to be followed and shall be followed to maintain all fairness so that the benefit, if any, derived by the opponent after completion of cross-examination to such a witness there may be every possibility to demolish the same if any further party, be it any of the other plaintiffs or be it any of the other defendants be allowed to be further examined. In that event the opponent shall be prejudiced. Therefore, learned Trial Court rightly rejected the prayer of tendering preemptor no. 2 for examination despite already examination of P.W 1 who deposed for himself and other petitioners. 8. This is further curious as to how the learned District Judge entertained the Order no. 59 dated 24.6.2015 to deal with revisional jurisdiction under Section 115A of the Code of Civil Procedure at the instance of the opposite parties pre-emptors. 9. By incorporation of Section 115A though the revisional jurisdiction has been vested in the Code of Civil Procedure by way of State amendment by which the District Court also may exercise all or any of the powers, which may be exercised by this Court under Section 115 of the Code but Learned District Judge in entertaining the interlocutory order to examine its propriety was acted beyond jurisdiction. For appreciation of the power also of the District Court, so far as the revisional jurisdiction is concerned, the relevant provision laid down in the second proviso of Section 115 is set out :- "Provided further that the High Court or the District Court shall not, under this section, vary or reverse any order including an order deciding an issue, made in the course of a suit or other proceeding, except where,- (1) the order, if so varied or reversed, would finally dispose of the suit or other proceedings; or (1) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made." 10. Therefore, it is needless to mention that by the interlocutory order dated 24th June 2015 by which learned Trial Court declined to allow the pre-emptors to tender the pre-emptor no. Therefore, it is needless to mention that by the interlocutory order dated 24th June 2015 by which learned Trial Court declined to allow the pre-emptors to tender the pre-emptor no. 2 to be examined further on the reasons assigned by learned Trial Court, there was no occasion even to think over that the said interlocutory order even if would have been passed in favour of the pre-emptors then and there the fate of the preemption case would have been finally disposed of in their favour. On other hand, there cannot be acceptance of any logic that too in a nature of pre-emption case where the pre-emtor no. 1 has already examined him for self and on behalf of all other pre-emptors then none examination of such pre-emptor no. 2 did not occasion any failure of justice causing irreparable loss and injury to the petitioners, or even if the proposed P.W 2 would have been allowed to examine there would be no scope of getting the pre-emption case decided thenceforth. Therefore, learned District Judge virtually has acted beyond jurisdiction in entertaining the interlocutory order for examination of its propriety. 11. This Court rather accepted the reasons assigned by learned Trial Court at the first instance who has rightly declined the pre-emptor no. 2 to be examined further as P.W 2 in addition to result of examination of P.W.1. In effect the order dated 2nd April, 2016 passed by learned District Judge by entertaining the order dated 24th June, 2015 passed by learned Civil Judge (Junior Division), Dinhata in Misc. Pre-emption Case no. 7 of 2007 is without jurisdiction and accordingly perverse and is set aside and quashed both from the angle of technicality as well as on merit. 12. Therefore, affirming the order dated 24th June 2015 passed by learned Civil Judge (Junior Division), Dinhata in Misc. Pre-emption Case no. 7 of 2007 the revisional application under Article 227 of the Constitution of India as filed before this Court now at the instance of the pre-emptees, is allowed. 13. Stay order, if any, passed by this Court, stands vacated. 14. Learned Trial Court is directed to proceed with the Misc. pre-emption case under reference for its disposal and in accordance with law. 15. Department is directed to communicate this order to the Court of learned District Judge, Cooch Behar as well as the learned Civil Judge (Junior Division), Dinhata, for information. 14. Learned Trial Court is directed to proceed with the Misc. pre-emption case under reference for its disposal and in accordance with law. 15. Department is directed to communicate this order to the Court of learned District Judge, Cooch Behar as well as the learned Civil Judge (Junior Division), Dinhata, for information. 16. No order as to cost.