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2017 DIGILAW 837 (GAU)

Umesh Ch. Das v. Labanya Das

2017-06-23

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : 1. Heard Mr. R. Borpujari, the learned counsel for the petitioner and Mr. J. Deka, the learned counsel for the respondent No. 2/Defendant No. 1. None appears for Respondent No. 1/Plaintiff when the matter was called. 2. In challenge in this application under Article 227 of the Constitution of India is the order dated 14.09.2016 passed by the learned Munsiff No. 1, Kamrup (Metropolitan), Guwahati, in T.S. No. 540/2009. 3. The Petitioner is arrayed as Proforma Defendant No. 2 in the said suit, which was filed by the respondent No. 1/Plaintiff, seeking relief against the respondent No. 2/Defendant No. 1. The plaintiff is the wife of the Proforma Defendant. For the sake of convenience, the parties are referred as arrayed in the suit. 4. Owing to the issue involved herein, this judgment need not be burdened with the pleadings of the parties. It would suffice to state that while no relief was claimed against the proforma defendant No. 2 in the suit, the proforma defendant No. 2 submitted his written statement and admitted the entire claim of the plaintiff (i.e. his wife), for which the plaintiff did not amend the plaint and did not seek any relief against the proforma defendant No. 2. 5. In course of time, the plaintiff produced her witness, who were cross-examined by the defendant No. 1 but there was no cross-examination of the plaintiff by the proforma defendant No. 2. Then the witness of the defendant No. 1 was examined and was cross examined by the plaintiff, but there was no cross examination by the proforma defendant No. 2. Thereafter, by order dated 16.02.2016, the suit was posted on 21.03.2016 for argument. 6. Thereafter, by filing petition No. 1111/10 dated 21.03.2016, the proforma defendant No. 2, prayed for vacating the order dated 16.02.2016 and accept his evidence-on-affidavit filed on 21.03.2016 and to fix another date for his cross examination. The defendant No. 1 filed her written objection and the matter was heard on 20.07.2016. Thereafter, by the impugned order, the said petition filed by the proforma defendant No. 2 was rejected. 7. The learned counsel for the proforma defendant No. 1/petitioner submits that as he had filed his written statement, the proforma defendant No. 1 had an indefeasible right to tender his evidence in the case. Thereafter, by the impugned order, the said petition filed by the proforma defendant No. 2 was rejected. 7. The learned counsel for the proforma defendant No. 1/petitioner submits that as he had filed his written statement, the proforma defendant No. 1 had an indefeasible right to tender his evidence in the case. It is submitted that merely because the plaintiff and the proforma defendant No. 2 are related, that cannot preclude his right as of the contesting parties in the suit to examine himself as a witness by filing his evidence-on-affidavit. The learned counsel for the petitioner has relied on the statements made in the petition No. 1111/16 and submitted that on 16.02.2016, the case was fixed for passing necessary orders and, on the said date his counsel had discussed the matter with the Bench Assistant so that the case may be next posted for evidence of the proforma defendant No. 2, but the case record was not put up. The engaged counsel once again enquired in the next hour and came to learn that the suit had been fixed on 21.03.2016 for argument. Hence, on 21.03.2016, the proforma defendant No. 2 had moved the said petition No. 1111/16 before the learned court below together with his evidence-on-affidavit. It is submitted that there was an inadvertent delay, but would not cause any prejudice to the either side as because on 21.03.2016, when the case was first fixed for argument, the evidence-on-affidavit by the proforma defendant No. 1 had already come on record. 8. The learned court below, by the order dated 14.09.2016, rejected the said prayer, further directing that the evidence-on-affidavit filed by the proforma defendant No. 2 would not form a part of the record. The said order is impugned herein. 9. Per contra, the learned counsel for the defendant No. 1 has argued in support of the impugned order. By referring to the print-out of the case history, as downloaded from the web-site of http://services.ecourts.gov.in/ecourtindia, it is submitted that on 19.11.2010 and 04.12.2010, the case was fixed for steps before preliminary hearing, but no steps were taken by the proforma defendant No. 2, then the case was fixed for cross examination of plaintiff’s evidence on five dates from 07.11.2014 to 27.04.2015, but the proforma defendant No. 2 did not cross examine the PWs. Thereafter, the suit was fixed on 5 dates from 21.05.2015 to 28.09.2015. Thereafter, the suit was fixed on 5 dates from 21.05.2015 to 28.09.2015. Thereafter, the case was sent for recording of cross examination by the Advocate Commissioner appointed for the said purpose and the case was fixed for report by the Commissioner on 6 dates from 19.11.2015 to 11.12.2015. Thereafter, the case was fixed for passing of necessary orders and after the case was posted on 21.03.2016 for argument, then for the first time a plea was taken to permit the proforma defendant No. 2 to accept his evidence. 10. The learned counsel for the defendant No. 1 submits that although the suit was posted for defendant’s witness on and from 21.05.2015, the proforma defendant No. 2 had slept over his right and on no occasion between the period from 21.05.2015 to 21.03.2016, did the said proforma defendant take any initiative to examine himself. It is also submitted that on no earlier occasion, did the said proforma defendant had made any prayer for adjournment or shown cause for the inability to file his evidence-on-affidavit. By referring to the provisions of Order XVIII Rule 2 of the Civil Procedure Code, it is submitted that it was a baseless perception of the proforma defendant No. 2 that after the evidence of defendant No. 1 is over, the trial court would invite him to give his evidence. It is submitted that as per the provisions of Order XVIII Rule 2 of the Code, all the defendants were required to file their respective evidence- on- affidavits, irrespective of their status as defendants in the suit. The learned counsel for the defendant No. 1 by relying on the provisions of Order XVII Rule 1 of the Code also submits that as per the said provision, a party may avail a maximum of 3 (three) adjournments after the commencement of hearing. it is submitted that the first preemptory hearing for framing issues occurred sometime in the year 2010, so the proforma defendant No. 2 is deemed to have availed more than the said prescribed adjournment as he had neither filed his evidence-on-affidavit on proper time nor he had prayed for extension of time to file such evidence, even during an extraordinary long period between 21.05.2015 to 21.03.2016, while witness of defendant No. 1 was still being examined and/or cross examined. Therefore, it was prayed that there was no infirmity in the impugned order. 11. Therefore, it was prayed that there was no infirmity in the impugned order. 11. Upon hearing the learned counsel for the Petitioner/Proforma defendant No. 2 and respondent/defendant, this court has perused the materials on record and it was deemed fit to dispose of this revision at the admission stage itself. 12. It is seen that as per the scheme of the Civil Procedure Code as well as the Civil Court Rules & Orders framed by Gauhati High Court, the same do not recognize a defendant differently from a proforma defendant. Although no authority on the point could be shown before this Court, the “proforma defendant” status of parties has come to be recognized by the prevailing practice being followed by this Court as well as subordinate courts under the jurisdiction of this Court, but this observation may not be treated as a decision on the point, this is only a passing remark because as per the provisions of Order XVIII Rule 2(1) of the Code, it is provided that on the day fixed for hearing any party who has the right to begin would produce his evidence in support of the issues which he is bound to prove. Under the provisions of Order XVIII Rule 2(2) of the Code, after the evidence of one party is over, the other party is then required to state his case and produce his evidence (if any) and may then address the court generally on the whole case. Thus, in the opinion of this court, the words “other party” appearing in Order XVIII Rule 2(2) of the Code would include all defendants including the proforma defendants in a suit. 13. In the further opinion of this Court, if the procedure as argued by the learned counsel for the Proforma defendant No. 2 is accepted, then it would set an incorrect precedent where after examination in chief and cross examination of each party to a suit is over, the trial courts would have to call upon the next party in the queue or list to tender evidence and also to face cross examination. Thus, in a given case where there are multiple parties, then the evidence would be never ending. 14. Thus, in a given case where there are multiple parties, then the evidence would be never ending. 14. It is also not the projected case of the proforma defendant No. 2 that he had suffered from any legal disability which prevented him from filing his evidence- on- affidavit in the appropriate stage of the suit. The words (if any) used in the provisions of Order XVIII Rule 2(2) of the Code indicates that as per the scheme of the Code, if no witness is produced, then also the case can be proceed to the stage of argument. There is another mischief that may occur in a few cases if the argument of the learned counsel for the petitioner is accepted, because it would enable a unscrupulous plaintiff to array his own person as the last proforma defendant, then wait for evidence of all parties to be over and then come in the last and easily fill-up the lacunae that might have remained in the suit. In this regard, it would be pertinent to extract the statements made in paragraph (2) of the petition No. 1111/16 dated 21.03.2016, where the proforma defendant No. 2 has stated as follows: “2. That the petitioner who is the proforma defendant also filed his written statement in the suit on 25.01.2010 and he has been taking steps regularly.” The aforesaid statement is indicative of the fact that the proforma defendant No. 2, who is the husband of the plaintiff, is admittedly keeping a track of the suit and taking steps regularly, which also shows that he is aware of whatever that has transpired in the suit during cross-examination of witnesses of both sides and not only that, his counsel has admittedly been speaking to Bench Assistant instead of addressing his point to Court by filing an appropriate petition, but at the stage of argument, the proforma defendant No. 2 has come to court at his sweet convenience wanting to examine himself as witness, which, according to this court, is not permissible. 15. Notwithstanding that the first hearing of the suit commenced with issue hearing in the year of 2010, as the evidence of the defendant’s side commenced on 21.05.2015, but no witness was examined by the proforma defendant No. 2 till 21.03.2017, the said conduct of inaction on part of the proforma respondent would also constitute waiver. 16. 15. Notwithstanding that the first hearing of the suit commenced with issue hearing in the year of 2010, as the evidence of the defendant’s side commenced on 21.05.2015, but no witness was examined by the proforma defendant No. 2 till 21.03.2017, the said conduct of inaction on part of the proforma respondent would also constitute waiver. 16. Hence, in view of the discussions above, this court is not inclined to accept the argument advanced by the learned counsel for the petitioner. No infirmity or jurisdictional error is found in the impugned order, which is upheld. 17. A party to a suit does have the right to examine himself as witness, but it must be done at an appropriate stage, and in any case without exhausting the limit of three adjournments as provided in Order XVII Rule 1 of the Civil Procedure Code, which commences from the “date of first hearing” in a suit. This is the appropriate time to remember an often quoted legal maxim – Law comes to the aid of the vigilant and not the dormant. 18. Accordingly, this revision is dismissed. However, the parties are left to bear their own cost.