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2017 DIGILAW 804 (GAU)

Ashok Prasad v. Purnima Bala Deb

2017-06-19

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : 1. Heard Mr. A.K. Purkayastha, the learned counsel for the petitioner and Mr. M. Ali, the learned counsel for the respondent. 2. By filing this application under Article 227 of the Constitution of India, the petitioners/ defendants have challenged the order dated 13.06.2016 passed by the learned Court of Civil Judge No. 3, Kamrup (Metropolitan), Guwahati, thereby rejecting their petition No. 2540/16 dated 07.06.2016 for examining one more person, namely, Sri Chandan Sen as their defendant’s witness. In challenge is also the order dated 26.08.2016, passed by the said learned court, by which their petition No. 2307/16 for review of the aforesaid order dated 13.06.2016 was also rejected. 3. Owing to the nature of grievances raised in the present application, with the consent of the learned counsel for both sides, the matter was heard in the admission stage. 4. As the issue in the present application is whether the learned court below had committed any jurisdictional error in passing the orders impugned herein, it is not deemed necessary to burden this judgment with the pleadings of the parties. 5. From the materials available on record, it appears that the respondents had filed Title Suit No. 235/2008, now pending for adjudication before the Court of learned Civil Judge No. 3, Kamrup (Metropolitan), Guwahati (hereinafter referred to as the “learned court below”) for declaration of right, title, interest over land described in Schedule-B of the plaint, for eviction of the defendants and for recovery of khas possession, injunction, etc. 6. On 15.05.2010, the petitioners/defendants had submitted their list of witnesses containing 11 names. The suit was pending for production of Defendants’ witnesses (DWs for short) for facing cross-examination. By order dated 08.01.2016, the petitioners/ defendants were given a last chance to produce their DWs for cross-examination on 25.01.2016 with a cost of Rs. 1,000/-. On 25.01.2016, in violation of the order passed by the learned trial court, the petitioners did not produce their remaining DWs for facing cross-examination and as such, by order dated 25.01.2016, the evidence of the petitioner’s/defendant’s side was closed and the suit was fixed on 16.02.2016 for argument. 7. 1,000/-. On 25.01.2016, in violation of the order passed by the learned trial court, the petitioners did not produce their remaining DWs for facing cross-examination and as such, by order dated 25.01.2016, the evidence of the petitioner’s/defendant’s side was closed and the suit was fixed on 16.02.2016 for argument. 7. Aggrieved by the closure of the evidence of their side, the petitioners herein approached this Court by filing an application under Article 227 of the Constitution of India, which was registered as CRP No. 153/16, which was allowed by this Court by order dated 26.05.2016, which is quoted below:- “By this application under Article 227 of the Constitution of India, petitioner has challenged the correctness of the order dated 25.01.2016 passed by learned Civil Judge No. 3, Kamrup (M) at Guwahati in title Suit No. 235/2008. By that order, the learned trial court closed the evidence of the defendant's side on the failure of the DWs subjecting them from cross-examination. Having gone through the impugned order, I do not find any jurisdictional error whatsoever. But in course of motion hearing of this petition, Mr. P.K. Deka, learned counsel for the opposite parties, submitted in his usual fairness that he will have no objection if a fixed date is given for cross-examination for all the remaining DWs and if on the fixed date the DWs appear and subject themselves for cross-examination in that event, the plaintiff side would not have any objection. Considering the submission made by the learned counsel for the opposite parties, I dispose of this revision petition with a direction that the defendants shall produce their DWs on 07.06.2016 on which date all of them shall be cross examined. If all the witnesses could not be cross examined on that day, the matter shall be continued till the next date i.e. on 08.06.2016 and on that date after the cross-examination shall be closed and the case shall be fixed for argument. This application is allowed with further cost of Rs. 1000/-.” 8. It would be pertinent to mention here that pursuant to the said order dated 26.05.2017, passed by this Court, the petitioners herein had got opportunity to produce their witnesses on 07.06.2016, on which date all of them were to be cross examined and if all the witnesses could not be cross examined on that date, the matter was to continue on 08.06.2017. As per the submissions made by the learned Counsel for the petitioners, out of 11 listed witnesses, they had examined 5 witnesses from their side. 9. On 07.06.2016, the petitioners filed a petition 07.06.2016 with a prayer to allow them to examine one more witness, namely, Sri Chandan Sen in addition to the left out witness. In the said petition, along with other reasons, a cause was shown that the said witness had permanently shifted to Guwahati in April, 2016 and the petitioners in spite of their best effort could only contact him in the month of May, 2016 (no date or week mentioned) and he was an important attesting witness, who had witnessed the execution of the agreement for sale between the parties. It was stated therein that the defendants were not in a position to contact the said witness. The said petition numbered as petition No. 2540/16 dated 13.06.2017 was accompanied by the Evidence-on-affidavit of the said witness. 10. The learned Court below by its order dated 13.06.2016, rejected the petition No. 2540/16 on the ground that in view of the order dated 26.05.2016 passed in CRP No. 153/06, whereby it has been made clear that after cross-examination of DWs on 08.08.2016, the suit will be posted for argument, so there is no scope to entertain the petition No. 2540/16. As per report of the Commissioner, appointed to record the cross-examination of remaining DWs, the DW No. 5 and 6 were cross examined. Hence, the suit was posted for argument on 24.06.2016. 11. The petitioners then preferred an application for review of the order dated 13.06.2016. The respondents herein filed their written objection against the review petition. Upon hearing the learned counsel for the parties, the learned court below rejected the said application, amongst others, on the ground that there was a specific order of this High Court that after closure of cross-examination of DWs the case will be fixed for argument. 12. The learned counsel for the petitioners has made a painstaking argument on the provisions of Order XVI Rule 1 and Order XVI Rule 1-A of the Civil Procedure Code to press his point that even a unlisted witness can be examined without the aid of summons issued by the Court. 12. The learned counsel for the petitioners has made a painstaking argument on the provisions of Order XVI Rule 1 and Order XVI Rule 1-A of the Civil Procedure Code to press his point that even a unlisted witness can be examined without the aid of summons issued by the Court. In this regard, he has referred to the below mentioned case citations:- (a) Lekhraj Sathramdas Lalvani vs. N.M. Shah and Others, (printout from Vikas Info Solutions Pvt. Ltd.). (b) P.K. Palanisamy vs. N. Arumugham and Another, (printout from CDJ 2009 SC 1528). (c) K.K. Velusamy vs. N. Palanisamy, (2011) 11 SCC 275 . (d) Rehman Hussain vs. Althaf Hussain (printout from CDJ 2003 Kar HC 722). (e) Rita Pandit and Others vs. Atul Pandit and Others, (printout from CDJ 2005 APHC 473). (f) A printout from SCC online containing a list of 94 judgments. (g) Minor Dipika and Others vs. C.G. State Electricity Board and Another, (printout from CDJ 2005 Ch HC 053). (h) Maria Margarida Sequeira Fernandes and Others vs. Erasmo Jack De Sequeira (dead) through LRs. (2012) 5 SCC 370 . (i) Mustt. Adiba Abu Bakkar vs. Oriental Marketing Corporation (printout from CDJ 2010 Assam HC 285. 13. It would be pertinent to mention that out of the above mentioned citation list, the learned counsel for the petitioner had referred to the judgment of K.K. Velusamy (supra), Rehman Hussain (supra), Rita Pandit (supra), Minor Dipika (supra). But none of the other citations including list containing 94 judgments were either read or referred, nor it was mentioned for which point the said cases were cited and, as such, it is best known to the learned counsel why the remaining citations and list of 94 judgments were handed over in course of argument. 14. The learned counsel for the petitioner has submitted that in the petition filed before the learned court below, the petitioners had quoted a wrong provision of law. In this regard, he has submitted that a mere wring quotation of law cannot prejudice him as the reading of the entire petition would show that the purpose of filing the petition before the learned court below was to examine an unlisted witness, which can be done under the provisions of Order XVI Rule 1 Sub-Rule 1(3) and also under Order XVI Rule 1-A CPC. In this connection, he has placed reliance on the case of Mustt. In this connection, he has placed reliance on the case of Mustt. Adiba Abu Bakkar (supra). It is also submitted that as the petitioners had no knowledge of the availability of the said witness prior to the order dated 25.06.2016 passed by this Court in CRP No. 153/16, there could not be any infirmity if his name could not be mentioned in the list of witness submitted by him. 15. It is submitted with great force that the ultimate purpose of a court of law is to arrive at a truth and in this journey, if one important witness is allowed to be left out, it would cause travesty of justice and the petitioners would suffer irreparable prejudice, as the said person was one of the attesting witness, whose evidence was essential and vital to prove their Exhibit-1, in respect of which the learned court below had permitted the petitioners to prove the same by adducing secondary evidence. 16. Per contra, the learned counsel for the respondent supported the impugned order and has referred to the inordinate delay in the disposal of the suit. He has also pointed out that as per the statement made by the proposed witness i.e. Chandan Sen in his Evidence-on- affidavit had named the person who was the writer of the alleged kutcha deed (Ext.1), he had also named the four persons in the alleged presence before whom the parties to the said Ext.1 had signed. By referring to the same, it is submitted the petitioners/ defendants had examined as many as 6 witnesses, they are now seeking to fill up the lacuna in the evidence. It is also stated that it is not possible to believe the story projected in the case because the list of witnesses was submitted on 15.05.2010 and the defendants had cross examined all the plaintiff’s witnesses thereafter, and submitted the evidence of defendants’ witnesses on 20.09.2014 and during all these years since the year 2010, the defendants never remembered the said witness. Hence, the real intention is only to prolong the litigation and to fill-up the lacuna which remained even after examining 6 witness. Hence, by referring to the affidavit-in-opposition filed by the respondents, the learned counsel for the respondent has prayed for dismissing this application. 17. Having considered the rival arguments advanced by both the sides, I have perused the materials on record. Hence, by referring to the affidavit-in-opposition filed by the respondents, the learned counsel for the respondent has prayed for dismissing this application. 17. Having considered the rival arguments advanced by both the sides, I have perused the materials on record. I am of the considered opinion that while passing the order dated 26.05.2016 in CRP No. 153/16, this court had categorically recorded that there was no jurisdictional error in the impugned order passed by the learned court below. By the order dated 25.01.2016, the petitioners had lost all opportunity to get any of their remaining witnesses cross examined. It was on the concession made by the learned counsel for the respondent (as he was then), that he was prepare to cross examine all the remaining DWs on a fixed date that this Court had fixed the suit for cross-examination of remaining DWs on 07.06.2016 and further provided that if for any reason the cross-examination gets spilled over then it would be done on 08.06.2016. It was also ordered that on that date after the cross-examination is closed, the suit would be fixed for argument. This mandate leaves no doubt in my mind that the intention of the said order was to allow cross-examination of only remaining witness, that too on the concession made by the learned counsel for the respondent. 18. Therefore, I find that the learned court below had correctly interpreted the order dated 26.05.2016 passed in CRP No. 153/16 and proceeded to close the evidence of DWs and fix the suit for argument. It was rightly observed by the learned court below that from the date of knowledge about the proposed witness, till the cross of remaining 2 DWs had commenced on 07.06.2016, the petitioners did not move the court. Though the petition was dated 07.06.2016, the same was numbered and moved before the learned court below on 13.06.2016. On and from 08.06.2016, the learned court below could not have got any power to admit fresh defendant’s witness, being bound by the order passed by this Court in CRP 153/16 as it was mandated to fix the suit for argument. 19. On and from 08.06.2016, the learned court below could not have got any power to admit fresh defendant’s witness, being bound by the order passed by this Court in CRP 153/16 as it was mandated to fix the suit for argument. 19. There is no dispute that in appropriate cases, and on satisfaction of the court that good grounds exists, the civil courts do have power to allow examination of witnesses, whether listed or unlisted, at any stage of the suit, and in appropriate cases, even in appeal under the powers conferred by the Civil Procedure Code. Nonetheless, the cases cited by the learned counsel for the petitioners do not help him because in the present case in hand, the distinguishable feature is that owing to the order passed by this Court in CRP 153/16, this is not a case where the learned court below had any jurisdiction to invoke the powers under Order XVI Rule 1 or Order XVI Rule 1-A to permit any unlisted witness for the defendant’s side to be examined. The order dated 26.05.2016 passed by this Court in CRP No. 153/16 had attained finality and, as such, the subordinate court had to follow the said order both in letter and in spirit. Hence, this court does not find any infirmity in both the impugned orders dated 13.06.2016 and 26.08.2016 passed by the learned court below. 20. Visiting the contents of this present application as well as the two petitions filed by the petitioners once again, the argument advanced by the learned counsel for the respondent is found to be of great substance. The learned counsel for the respondent had submitted that in the evidence- on- affidavit filed by the proposed witness, Chandan Sen had referred to four persons in whose presence the agreement at Exhibit-1 was signed and also named the writer of the said instrument. However, out of these 5 names as provided, from the chart given in paragraph 15 of this present application, four persons in whose presence the writing at Exhibit-1 was signed are named witnesses in the list of 11 witnesses submitted by the petitioners. However, out of these 5 names as provided, from the chart given in paragraph 15 of this present application, four persons in whose presence the writing at Exhibit-1 was signed are named witnesses in the list of 11 witnesses submitted by the petitioners. Hence, after the respondent has examined one of themselves and other four witnesses to the execution of the writing, the only conclusion which can be reached is that the petitioners are trying to fill-up their lacuna, which cannot be the reason for the courts to permit examination of any witness at a belated stage. This is one more reason why this court is not inclined to interfere with the otherwise well reasoned order of the learned court below. 21. On perusal of the voluminous application, this court does not find any document to prima facie show that the proposed witness Chandan Sen was residing elsewhere for considerable time, or that he was ill, for which he returned back. On the contrary it is his own statement that he was a permanent resident of Guwahati. Hence, the genuineness of the plea of the said person not been found is not believable. Moreover, viewed from another angle, it is the requirement under Order XVI Rule 1 CPC that not later than fifteen days after the date on which the issues are settled, the parties are obliged to furnish a list of witnesses whom the propose to call and, as such, there was no need for the petitioner to withheld the name from the list of witness merely because his address was allegedly not known, which again is not believable because the specifically admitted case of the petitioners and his proposed witness is that the respondents No. 1, 3 and 6 herein, namely, Ashok Prasad, Gautam and Sita Prasad had visited his residence at Lalganesh but could not meet him. Therefore, it cannot be accepted that the petitioners did not know the whereabouts of the said witness, which is belied by their own specific admission. 22. Moreover, as per the statement made in paragraph 25 the evidence-on-affidavit of Sri Chandan Sen, the petitioners approached him in second week of May, 2017 with a request to appear in the case as a witness. Paragraph 25 reads as follows – “That when I was residing in Guwahati regularly during that period, I did not have knowledge as to the subsequent development. Paragraph 25 reads as follows – “That when I was residing in Guwahati regularly during that period, I did not have knowledge as to the subsequent development. It was only in the 2nd week of May, 2016 the defendant No. 2 Ashok Prasad and his brother Gautam and widow mother Sita Prasad met me in my residence at Lalganesh and reported about the case with a further request to appear the court and give evidence as being their witness.....”A similar statement also appears in paragraph 11 of the review petition referred above, the relevant portion of the said paragraph is as follows – “.......In the second week of May, 2016 the petitioners Ashok Prasad, Gautom Prasad and Silla Prasad went to his residence at Lalganesh and informed him about the present suit which is not pending before this Hon’ble Court.” However, in a contrast, in second sub-paragraph after paragraph 39 (pp.38) of the present application, the following statement is made – “.......Later on, after disposal of the aforesaid Revision Petition by the Hon’ble High Court by order dated 26.05.2016, the petitioners could come to know that the said unlisted witness returned back to Guwahati permanently and it was only because of that reason beyond reach, they were not in a position to bring on record the said facts and seek leave before the Hon’ble High Court by making any statements in the aforesaid revision petition.” Further, in first sub-paragraph after paragraph 42, it is one again stated that “.......The petitioners in that regard, also stated in their application that they came to know about the permanent shifting of the said unlisted witness after the disposal of the aforesaid CRP No. 153/2016 by the Hon’ble High Court vide order dated 26.05.2016, they were hardly in a position to bring on record the said fact and to appraise the Hon’ble High Court at the time of Motion hearing of the said CRP No. 153/2016, nor did they have any occasion to make any statement or averment in the said Revision Petition.” 23. Thus, from above quoted excerpts it is seen that while in the evidence-on-affidavit of Chandan Sen and Revision Petition filed by the petitioners, there is a clear admission that the petitioners had approached the said Chandan Sen in second week of May, 2016 to apprise him of the suit with a request to appear as a witness. Thus, from above quoted excerpts it is seen that while in the evidence-on-affidavit of Chandan Sen and Revision Petition filed by the petitioners, there is a clear admission that the petitioners had approached the said Chandan Sen in second week of May, 2016 to apprise him of the suit with a request to appear as a witness. Hence, on 26.05.2016, when CRP No. 153/2016 was being heard, the petitioners did have knowledge about their proposed witness. But now in this present application, the petitioners has made a different story-line that they became aware of their proposed witness after the passing of the order in CRP No. 153/2016. Therefore, of the two versions projected by the petitioners, as extracted above, one has to be a false statement. The copy of plaint as annexed with the present application is not supported by any affidavit, which is mandatory under the amended Civil Procedure Code. Interestingly, in Annexure-T, which is the copy of order dated 13.06.2016, in the typed copy of the said order, one part of the order appearing in the hand-written copy is missing, which was otherwise relevant because it contains the operative part of the order by which the suit was fixed for argument on 24.06.2016, which is omitted in the typed copy thereof. Again, in the copy of the review petition annexed to this application as Annexure- U, there is no affidavit or verification appended to the said petition and, as such, it is not known as to who had signed the verification or affidavit. Thus, the inevitable conclusion of this court is that there has been a deliberate and willful attempt to mislead this Court by making false and/or mutually contradictory statements as quoted above. Going by the statements available in this application as quoted above, the petitioners were well aware of the existence of Chandan Sen, but yet allowed this Court to pass orders to permit cross-examination of the remaining DWs, under the circumstances, this Court would definitely be referring to DWs on record as on 26.05.2016 and no one else. Therefore, the petitioners cannot be now permitted to examine any further witnesses on any ground whatsoever. Therefore, the petitioners cannot be now permitted to examine any further witnesses on any ground whatsoever. One who comes with unclean hands has no entitlement to justice when it was their intention to deceive this Court with incorrect statement that they became aware of the said witness after 26.05.2016, whereas, the petitioners and the said witness themselves claim to have met in second week of May, 2016. The attempt to mislead this court with false statement is strongly deprecated. 24. It is a trite law that the jurisdiction under Article 227 of the Constitution of India is also an equitable jurisdiction. Therefore, when the petitioners are not found to have approached this Court with clean hands, rather, when attempt has been made to mislead this Court with incorrect statements about the time when the petitioners got knowledge of their proposed witness, Chandan Sen, the petitioners have lost their right to any equitable relief from this Court. 25. For the reasons as indicated above, this court does not find any infirmity in the impugned orders passed by the learned court below. The order dated 13.06.2016 and 26.08.2016, passed by the learned Court of Civil Judge No. 3, Kamrup (Metropolitan), Guwahati, are both upheld. The petitioners are not found to be entitled to any relief. Hence, this revision stands dismissed. 26. For making a deliberate and willful attempt to mislead this court with contradictory statements as quoted above, a case for prosecution for perjury can also be initiated, however, in the present case in hand, ends of justice would be met if an exemplary cost of Rs. 3,000/- is imposed on the petitioners, making payment of such cost a condition precedent to further prosecute the suit. On such cost being deposited, the same may be made over to the District Legal Services Authority, Guwahati. Moreover, a further cost of Rs. 2,000/- is imposed for causing delay in the disposal of the suit under section 35-B of the Civil Procedure Code, which shall be also a condition precedent to further prosecute the suit and this is to be deposited in favour of the respondent herein before the trial court on the next date fixed for appearance, failing which the petitioners shall forfeit their right to further prosecute the suit. 27. 27. The parties are directed to appear before the learned Civil Judge No. 3, Kamrup (Metropolitan), Guwahati on 12.07.2017 without any further notice required to be served in this regard and to seek further instructions from the said learned court.