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2017 DIGILAW 805 (GAU)

Ganesh Das v. Bhaskar Deb

2017-06-19

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : 1. Heard Mr. P.K. Roy, the learned counsel for the petitioner and Mr. S.D. Purkayastha, the learned counsel for the respondents. 2. By filing this revision application under Article 227 of the Constitution of India, the petitioner, who is the plaintiff in Test Suit No. 35/2000 pending before the learned court of Additional District Judge (FTC), Cachar, Silchar has challenged the order dated 24.03.2016 passed by the said learned court. By the said order, the said learned court has expunged the evidence on affidavit filed by the PW-3, namely, Bimal Namasudra, as he had expired on 24.11.2005. By the said order, it was held that the said learned trial court did not find any ground to allow the amendment of the plaint. The suit was then fixed on 16.07.2016 for cross-examination of DW-1 3. Owing to the nature of dispute raised in the present application, I do not deem it fit to burden this judgment with the pleadings of the parties before the learned trial court. 4. The learned counsel for the petitioner has submitted that the petitioner/plaintiff’s side had submitted the evidence on affidavit of 4 witnesses on 15.09.2004 and the case was fixed for cross-examination of the witnesses on 13.10.2004. However, on 13.10.2004, the respondent or the defendants prayed for an adjournment and, as such, the case was then fixed on 2.12.2004 for cross-examination of PWs. On 2.12.2004, the petitioner’s side was present in Court with 3 PWs including the PW-3, Bimal Sutradar. Despite objection by the petitioner’s side, the learned trial court allowed the petition for adjournment and the case was fixed on 4.1.2005 for cross-examination of PWs. On 4.1.2005, the petitioner’s side was again present before the court with 3 witnesses including PW-3 but again the respondents/defendants prayed for adjournment, however, the learned trial court rejected the petition for adjournment and closed the cross-examination of PWs and the case was fixed on 2.2.2005 for evidence of the defendant ’s side. 5. Challenging the said order dated 2.2.2005, the respondents herein approached this Court by filing W.P. (C) No. 6736/2005. This Court by an order dated 31.3.2008 set aside the order dated 2.2.2005 permitting the respondents to cross examine the PWs. 6. 5. Challenging the said order dated 2.2.2005, the respondents herein approached this Court by filing W.P. (C) No. 6736/2005. This Court by an order dated 31.3.2008 set aside the order dated 2.2.2005 permitting the respondents to cross examine the PWs. 6. On appearance of the parties before the learned trial court, on an application filed by the petitioner herein on 4.7.2008, the said learned court was pleased to accept the evidence on affidavit submitted by the PWs earlier and the case was fixed on 7.8.2008 for cross-examination of PWs. On the said date, the respondents herein filed an application under Order XIII Rule 10 read with Section 151 CPC calling for some documents to facilitate the cross-examination of PWs. The petitioner/plaintiff side then prayed for adjournment but the application was rejected by the order dated 3.9.2012 passed by the learned trial court. 7. Aggrieved by the said order dated 3.9.2012, the defendants then filed CRP No. 7/2013 before this Court. This Court by an order dated 18.11.2013 declined to interfere with the order dated 3.9.2012 passed by the learned trial court and observed that the ultimate decision of the trial court goes against the defendant, he may set up a ground in appeal that the order dated 3.9.2012 and further directed that probate case will be decided expeditiously within 6 months. 8. Notwithstanding the refusal by this Court to interfere with the order dated 3.9.2012, the defendants filed an application under Order XI Rule 14 read with Section 151 CPC on 6.1.2014 for discovery of documents mentioned in the Schedule of the said application but the learned trial court by the order dated 10.1.2014 rejected the said application. 9. The order dated 10.1.2014 was challenged before this Court by filing CRP (I/O) No. 25/2015, however, this Court vide order dated 2.4.2014 dismissed the said revision. The said dismissal order was assailed before the Hon’ble Apex Court, which was also dismissed. 10. Thereafter, the defendants filed a review petition before the learned trial court along with an application for condonation of delay and the learned trial court had rejected both the said applications vide order dated 15.7.2015. These orders were once again challenged before this Court in CRP No. 297/2015 and this Court vide order dated 25.6.2016 dismissed the said petition by imposing a cost of Rs. 1000/-. 11. These orders were once again challenged before this Court in CRP No. 297/2015 and this Court vide order dated 25.6.2016 dismissed the said petition by imposing a cost of Rs. 1000/-. 11. The defendants, thereafter filed an application under Section 24 of CPC for transfer of the suit from the court of learned Additional District Judge (FTC) to any other court but the said application for transfer was not entertained by the learned District Judge, Cachar, Silchar. Only thereafter, the order dated 25.1.2016 passed by this Court in CRP No. 297/2015, the defendants cross examined the PWs. 12. On 31.3.2016, the defendants/respondents filed an application before the learned trial court to expunge the evidence on affidavit of PW-3, Bimal Namasudra, as he had died. 13. It appears that the case was fixed on 31.3.2016 for cross-examination of PWs and on the said date, the defendants by filing a petition No. 212/2004 informed the court below about the information of death of PW-3 along with photocopy of death certificate was laying on record but no order was passed and it was submitted in the petition that the evidence of PW-3, Bimal Namasudra, is required to be expunged and separated. The plaintiff, on 8.4.2016 filed the written objection to the said petition. However, the case was fixed on 16.5.2016 for cross-examination of DW-1. 14. On the said date, 2 PWs were present one of the PW was cross examined and discharged and the other PW was allowed to go without cross-examination on the submission made by the learned counsel for the parties. Hence, the case was fixed on 8.4.2016 for cross-examination of PW-4 and the plaintiff objected the same by filing an objection petition No. 212/2004. 15. The defendant side submitted evidence on affidavit of DW-1 on 3.5.2016 and the case was fixed on 16.5.2016 for cross-examination of DW-1 and for hearing on Petition No. 212/2004. 16. On 16.5.2016, both the parties have prayed for adjournment, which was allowed and the case was fixed on 23.5.2016 and on the said date, an objection was filed being Petition No. 92/2005 and the case was fixed on 30.5.2016 for objection hearing. After that the case was adjourned on 30.5.2016 and 10.6.2016 and the matter was heard on 24.6.2016. 16. On 16.5.2016, both the parties have prayed for adjournment, which was allowed and the case was fixed on 23.5.2016 and on the said date, an objection was filed being Petition No. 92/2005 and the case was fixed on 30.5.2016 for objection hearing. After that the case was adjourned on 30.5.2016 and 10.6.2016 and the matter was heard on 24.6.2016. By the order dated 24.6.2016, the evidence of PW-3, Bimal Namasudra was expunged and the learned trial court did not find any ground to allow the amendment of the plaint. The aforesaid order is in challenge in the present revision. 17. The learned counsel for the petitioner submits that under the provisions of Section 33 of the Evidence Act, as the PW-3, Bimal Namasudra had died, his evidence ought to have been retained in the record owing to the relevancy of the statement made by the deceased witness. It is submitted that the defendant’s side got ample opportunity to cross examine PW-3, but owing to their dilatory tactics adopted by the defendants, PW-3, who had submitted evidence on affidavit on 15.9.2004, could not be examined till his death on 24.11.2005. It is submitted that unless the said evidence is kept on record, the petitioner would not be entitled to refer to the relevancy of the said evidence and retaining the said evidence on record would not create the prove of the contest made therein which has to be independently proved by the plaintiff’s side, in the manner prescribed under the law. The learned counsel for the petitioner further submitted that the Petition No. 92/2005 which was field on 16.5.2016 was merely an adjournment petition, therefore, the learned trial court has erroneously treated the same as an application for amendment and the prayer for adjournment was refused by the impugned order. On this ground, the impugned order has been challenged by the petitioner. 18. Per contra, the learned counsel for the respondents has submitted that by the order passed by this Court on 31.3.2008 in WP (C) No. 6736/2005, a direction was issued to the plaintiff to produce witnesses and that time the petitioner did not informed this Court about the death of PW-3 on 24.11.2005. 18. Per contra, the learned counsel for the respondents has submitted that by the order passed by this Court on 31.3.2008 in WP (C) No. 6736/2005, a direction was issued to the plaintiff to produce witnesses and that time the petitioner did not informed this Court about the death of PW-3 on 24.11.2005. It is submitted that after the order passed by this Court, trial has been started on 23.3.2008 where it is found that issues were not framed and ultimately issues were framed on 31.3.2008 and the case was fixed for evidence of the plaintiff’s side on 4.7.2008 and on the said date, the petitioner/plaintiff side filed the Petition No. 6/2002. The plaintiff had submitted before the trial court that the evidence in chief of PWs were already submitted on record and the PW-3, Bimal Namasudra had died and, as such, the evidence in chief of 3 PWs are on record and it was prayed that the learned court may take up the above evidence in chief of PW-3 as the evidence of the plaintiff. It is submitted that for practical purpose, it is by virtue of CRP No. /2008, that the evidence of PWs has come on record by which it was informed that PW-3 has already expired. It is submitted by relying on the case of V.M. Mathews vs. S. Sharma and Others, AIR 1996 SC 109 that as per pargraph-10 thereof unless the witness was cross examined, the effect of second proviso of Section 33 was not applicable and therefore, the impugned order was rightly passed insofar as it relates to the expunge of evidence. The learned counsel of the respondents further submitted relying on the case of Sashi Jana and Others vs. Khadal Twar and Others, (2004) 4 SCC 236 , wherein the Apex Court has laid down 3 conditions in which the evidence of witnesses on a judicial proceeding can be safe under Section 33 of the Evidence Act, which are – (i) that the earlier proceeding was between the same parties; (ii) that the adverse party in the first proceeding had the right and opportunity to cross examine; and iii) that the question in issue in both the proceeding were substantially the same. The learned counsel for the respondents supporting the impugned order submits that the said Petition No. 92/2005 was not for amendment and he made an attempt to justify the refusal of amendment on the basis of the pleadings. However, this Court is not inclined to go into the pleadings at this stage because if the Petition No. 92/2005 was not for amendment, this Court is not required to answer the justification part of the plaintiff/ petitioner for praying amending of the pleadings in the suit.