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2019 DIGILAW 1119 (GAU)

Naren Medhi v. Mantaj Ali

2019-09-27

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT : 1. Heard Mr. Sheeladitya, learned counsel for the petitioner. Also heard Mr. A. Khanikar, learned counsel for the respondent No. 1. 2. The respondent No. 1 instituted the Title Suit No. 189/2009 in the court of the learned Civil Judge No. 1, Kamrup (M) against the respondent Nos. 2(i) and 2(ii). By the judgment and decree dated 24.9.2009, the suit was decreed in favour of the respondent No. 1. In respect of the suit land which was 2K, 5L of Dag No. 486 and 435, the decree obtained by respondent No. 1 was executed. After execution of the decree, the present petition under order 21, rules 97 to 102 was preferred for obstructing the decree. As required under the law upon such obstruction being raised, the claim of the petitioner was proceeded in the manner of a separate suit. In course of such proceeding the petitioner preferred an application under order 16, rule 1(2) for calling the civil nazir and the revenue staff as witnesses. 3. The claim of the petitioner is that they are possessors of 2K, 5L of Dag No. 486 and 435 but the respondent No. 1 while executing his decree had also executed it in respect of the land of the petitioner. According to the petitioner, the relevance of the evidence to be rendered by the civil nazir and the other revenue officials would be to determine as to whether the land which was in possession of the petitioner was also included in the land covered by the decree in favour of respondent No. 1. The said application of the petitioner was rejected vide order dated 18.12.2017 in Misc.(J) Case No. 671/2017 of the learned Civil Judge No. 2, Kamrup (M). Being aggrieved, the present revision is preferred. 4. When an application under order 16, rule 1(2) is made, the court under order 16, rule 1(3) may for reasons to be recorded, permit a party to call for any witness other than such witnesses whose names appear in the list referred under order 16, rule 1(1). In order to appreciate the application of the petitioner under order 16, rule 2 there is requirement under the law for the Civil Judge to record its reasons either to accept or to reject such application. 5. In order to appreciate the application of the petitioner under order 16, rule 2 there is requirement under the law for the Civil Judge to record its reasons either to accept or to reject such application. 5. From the said point of view when we look into the order dated 18.12.2017 we find that what the learned Civil Judge No. 2 had provided is that so far as the role of a civil nazir is concerned, the court may presume that the officials and the civil nazir have performed their work in a regular manner and, therefore, a further prayer for summoning the civil nazir and the revenue officials to adduce evidence on behalf of the petitioner would unnecessarily enlarge the issue at hand as their evidences are not necessary. The said provision of the learned Civil Judge may be a conclusion but it cannot construed to be a reason as required to be provide under order 16, rule 1(3). A reason would be as to what would be the relevance of the possible evidence of the civil nazir and the revenue officials who are sought to be called for as witnesses and whether such evidence would be relevant for the purpose of determining the suit at hand, i.e., whether the land in possession of the petitioner were also covered by the decree obtained by the respondent No. 1. As the learned Civil Judge No. 2 had neither gone into the reasons and nor recorded it in the order dated 18.12.2017 we remand the matter back to the learned Civil Judge No. 2 for a fresh consideration on the merits of the claim and for recording its reasons as to whether the evidence of the civil nazir and the revenue officials would be relevant and germane for determining the issue raised by the petitioner in his claim under order 21, rule 97. 6. Accordingly, the order dated 18.12.2017 is set aside and the matter is remanded back for fresh consideration as indicated above. 7. Revision stands allowed. 8. As agreed, the parties shall appear before the learned Civil Judge No. 2 on 5.11.2019.