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2018 DIGILAW 227 (GAU)

Kati Ram Boro v. Parag Patra

2018-02-06

A.K.GOSWAMI

body2018
JUDGMENT : Arup Kumar Goswami, J. 1. Heard Mr. S. Sahu, learned counsel appearing for the petitioners. Also heard Mr. G. Choudhury, learned counsel appearing for the respondents. By this application under Article 227 of the Constitution of India, read with Section 151 CPC, the petitioners have called into question the order dated 28.03.2016, passed by the learned Munsiff No. 2, Kamrup (M), in Title Suit No. 590/2007 in respect of the petition, being Petition No. 3574/15 dated 17.10.2015. 2. Before proceeding further, it will be appropriate to note that by the said order dated 28.03.2016, the learned trial court had also disposed of another petition, being Petition No. 3468, filed under Order 18 rule 17 read with Section 151 CPC. Dismissal of the said petition is not the subject-matter of challenge in this revision petition. 3. Petition No. 3574/15 was an application under Section 151 CPC stating that the defendants' witness No. 3, namely, Baga Ram Teron, was not in a position to face cross-examination as he is aged about 75 years and suffering from serious ailments and, accordingly, the defendants wanted to adduce evidence of another witness, namely, Shiva Prasad Sarma. 4. Mr. Sahu has submitted that the learned trial court wrongly recorded that medical certificate in respect of the illness of DW 3 was not attached and, on this ground alone, the impugned order is liable to be set aside. He further submits that no prejudice will be caused to the plaintiffs if, in substitution of Baga Ram Teron (DW 3), Shiv Prasad Sarma is examined as a witness. 5. By drawing attention of the court to paragraph 7 of the objection filed, Mr. Choudhury, learned counsel for the respondents submits that the copy of the petition furnished to the respondents did not contain the medical certificate though the medical certificate was stated to be enclosed in the application filed under Section 151 CPC. 6. Drawing attention to the certificate, which is enclosed with the instant petition along with the Application under Section 151 CPC, Mr. Choudhury submits that the said certificate discloses that DW 3 was advised bed rest for a period of two weeks with effect from to 16.10.2015 on the ground that Boga Ram Teron was suffering from arthritis, dysentery and hypertension. Therefore, the plea taken by the petitioners that he is unable to come to the court is without any substance. Choudhury submits that the said certificate discloses that DW 3 was advised bed rest for a period of two weeks with effect from to 16.10.2015 on the ground that Boga Ram Teron was suffering from arthritis, dysentery and hypertension. Therefore, the plea taken by the petitioners that he is unable to come to the court is without any substance. He also submits that if a situation arises where DW 3 cannot come to the court then the defendant can certainly pray for permission for his cross-examination on commission. It is submitted by him that the application was filed to fill up the lacunae of the defendants' case and, therefore, this petition is liable to be rejected. 7. On a perusal of the materials on record and upon hearing the learned counsel for the parties, I find that in the application under Section 151 CPC it was indicated that medical certificate was enclosed. It also appears to the court, in view of the categorical averments made in the petition, that the said certificate was not annexed with the copy furnished to the respondent Though the learned trial court had taken non-enclosure of the copy of the medical certificate as a ground for rejection of the application, on going through the same, I find substance in the argument of Mr. Choudhury. By the said certificate, DW 3 was advised bed rest for two weeks. For how long DW 3 was suffering from ailments is not indicated in the said certificate. Having regard to the contents of the certificate, I am of the considered opinion that the plea taken by the petitioner that DW 3 is unable to face cross-examination because of his illness cannot be accepted. The very basis of the petitioner to permit Shiva Prasad Sarma to be examined was founded on the premise that DW 3, who had already been examined, was unable to face cross-examination. That having found to be not acceptable, examination of Shiv Prasad Sarma on the aforesaid premise cannot be acceded to. Taking that view, this revision petition is dismissed.