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2018 DIGILAW 153 (GAU)

Dharitri Das v. Hari Charan Bej

2018-01-29

A.K.GOSWAMI

body2018
JUDGMENT : Arup Kumar Goswami, J. 1. Heard Mr. Sheeladitya, learned counsel appearing for the petitioner. Also heard Mr. P.K. Kalita, learned Senior counsel, appearing for the respondents. The plaintiff/petitioner filed a Title Suit, numbered as T.S. No. 76/13, before the Munsiff No. 1, Kamrup, at Guwahati, which was transferred to the court of learned Munsiff, Amingaon, wherein it was numbered as T.S. No. 320/2014 (New). In the said suit, the plaintiff prayed for declaration of right, title and interest over the Scheduled property as well as for recovery of possession and for permanent injunction restraining the defendants from making construction over the Scheduled land. 2. The defendants had filed written statement 3. During the course of the trial, the plaintiff had adduced evidence of three witnesses, including that of the father of the plaintiff, as PW 2. According to the petitioner, the father had executed a gift deed, being Gift Deed No. 531/07 dated 29.05.2007, gifting the suit property to her. However, before PW 2 could be cross-examined, he died. At this stage, the petitioner filed a petition under Section 151 CPC, being Petition No. 2029/15, praying to allow one Srikanta Haloi, who was stated to be an attesting witness of the Gift Deed, to adduce evidence. A written objection was filed to the said petition. By an order dated 1.7.16, the petition was rejected and the same has occasioned filing of the present revision petition under Article 227 of the Constitution of India read with Section 151 CPC. 4. Mr. Sheeladitya has submitted that the aforesaid Petition No. 2029/15, filed under Section 151 CPC, ought to have been filed under Order XVI Rule 1(3) CPC, but wrong quoting of the provision would not matter as the learned trial court had considered the aforesaid provision. He has further submitted that but for the death of PW 2 there would have been no occasion for the plaintiff to adduce evidence of Srikanta Haloi. He submits that the learned trial court had completely misdirected itself in appreciating the provision under Order XVI Rule 1 (3). 5. Mr. Kalita, learned Senior counsel for the respondents has submitted that the plaintiff/petitioner had prayed for allowing her to adduce evidence of Srikanta Haloi as PW 2, which is not permissible in law and, therefore, the learned trial court was justified in rejecting the said petition. 6. 5. Mr. Kalita, learned Senior counsel for the respondents has submitted that the plaintiff/petitioner had prayed for allowing her to adduce evidence of Srikanta Haloi as PW 2, which is not permissible in law and, therefore, the learned trial court was justified in rejecting the said petition. 6. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 7. It is seen that the aforesaid petition filed under Section 151 CPC (Annexure-C) is not a complete document inasmuch as in three paragraphs of the said application dates are not filled up keeping the spaces blank. However, the omission to mention the dates will not have any material bearing as the facts are not in dispute. However, filing of a petition in such manner leaves a lot to be desired as it is expected that counsel takes reasonable and appropriate care before filing petition before the court. 8. Order XVI Rule 1 (3) reads as follows: "1(3) The Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list." 9. A perusal of the above provision goes to show that if a party shows sufficient cause for the omission to mention the name of any witness in the list to be furnished under Order XVI Rule 1 (1), the court may, for reasons to be recorded, permit a party to call, whether by summoning through court or otherwise, any witness. The crucial aspect that has to be considered is whether sufficient cause is shown to enable the party to call a witness, whose name did not figure in the list furnished under Order XVI Rule 1(i) CPC. 10. In the instant case, according to the plaintiff, the list of witnesses submitted at the time when PW 2, i.e., the father of the plaintiff (executor of the Gift Deed) was alive, would have been sufficient. But the situation took a different turn after the death of PW 2 and it had become necessary for the plaintiff to examine another witness to prove the Gift Deed. But the situation took a different turn after the death of PW 2 and it had become necessary for the plaintiff to examine another witness to prove the Gift Deed. According to the opinion of this court, the same is a sufficient cause to enable the court to permit a party to call a witness in terms of Order XVI Rule 1(3) CPC. 11. In the above background, I am of the considered opinion that the learned trial court failed to exercise its jurisdiction on the touchstone of Order XVI Rule 1(3) in not permitting the plaintiff to adduce the evidence of Srikanta Haloi. However, Mr. Kalita is correct in submitting that it cannot be by way of substitution of PW 2. The evidence of PW 2 may be expunged, but that does not mean that Srikanta Haloi, whom the plaintiff wants to examine, will step into the shoes of PW 2. The plaintiff/petitioner will be allowed to adduce evidence of Srikanta Haloi as PW 4. 12. The parties to the proceeding will appear before the learned trial court on 14.3.18. In view of the above, the revision petition is allowed.