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2019 DIGILAW 1145 (JHR)

Pokhan Mahto v. Nemo Mahto

2019-06-16

RONGON MUKHOPADHYAY

body2019
ORDER : Heard the parties. 2. In this writ application, the petitioners have prayed for quashing of the order dated 8.2.2012, passed in Title Suit No. 79 of 1980 by the learned Sub Judge-VII, Deoghar, by which without formal closure of the evidence of the plaintiff he has directed the defendants to produce their witnesses. The petitioners are further aggrieved by the orders dated 8.8.2012 and 26.11.2012, by which the application preferred by the plaintiffs for recall of the order dated 8.2.2012 has been rejected. 3. It has been submitted by the learned counsel for the petitioners that the impugned order dated 8.2.2012 is not tenable in view of the fact that without formally closing the evidence to be adduced on behalf of the plaintiffs, the defendants were directed to produce their witnesses. It has further been submitted that the present petitioners-plaintiffs were directed to produce their witnesses vide order dated 16.12.2009 and one witness namely Sadhu Mahto was examined on 22.2.2011. Submission has been advanced that on 19.10.2011, the Presiding Officer was transferred, which prevented the plaintiffs to produce their witnesses and without any rhyme or reason and without giving sufficient opportunity to the plaintiffs-petitioners, the defendants were directed to produce their witnesses vide order dated 8.2.2012. Further submission has been advanced that subsequent orders dated 8.8.2012 and 26.11.2012 reveals that no consideration had been made by the learned court below to the application preferred by the plaintiffs-petitioners for recall of the order dated 8.2.2012 and permitting the plaintiffs-petitioners to produce witnesses simply on the ground that the suit is of the year 1980. 4. Mr. Onkar Nath Tiwari, learned counsel for respondent nos. 1 and 2, has opposed the prayer made by the learned counsel for the petitioners and has submitted that from the order-sheets, it will be abundantly clear that unnecessary adjournments had been sought for by the plaintiffs and in spite of several opportunities, the plaintiffs were not able to produce their witnesses and as such the learned court below was justified in passing the orders dated 8.2.2012, 8.8.2012 and 26.11.2012. 5. The factual aspects of the case reveals that a title suit was filed by Atwa Mahatwain, Pokhan Mahto, Putan Mahto and Ganesh Mahto for a declaration that defendant no. 3/respondent no. 3 is not an adopted son of plaintiff no. 5. The factual aspects of the case reveals that a title suit was filed by Atwa Mahatwain, Pokhan Mahto, Putan Mahto and Ganesh Mahto for a declaration that defendant no. 3/respondent no. 3 is not an adopted son of plaintiff no. 1 Atwa Mahatwain and there has never been any lawful and valid adoption of defendant no.3 by the plaintiff no. 1 as her son as well as for cancellation of invalid adoption deed executed on 16.11.1979. During pendency of the suit, the plaintiff no.1-Atwa Mahatwain died and she was substituted by the petitioner no.2 and other legal heirs. It has been stated that the present petitioners are the legal heirs and successors of Ganpat Mahto. After the suit was filed, the defendants had appeared and filed their written statements and thereafter issues were framed. Vide order dated 8.2.2012, the defendants were directed to produce the witnesses. The petitioners had preferred applications for recalling the order dated 8.2.2012 but the same was rejected on 8.8.2012 on the ground that it was an old suit of the year 1980 and is pending at the stage of evidence of the defendants. Another application for recall of the order dated 8.2.2012 was preferred by the petitioners, which was also rejected vide order dated 26.11.2012. 6. In the counter affidavit filed by respondent no. 2, it has been stated that the plaintiffs were deliberately delaying the disposal of the suit and about 50 opportunities were given to the plaintiffs to adduce their evidence. 7. The plaintiffs-petitioners claim to have been deprived from producing their witnesses but the ordersheet reveals otherwise. The plaintiffs were directed to produce their witnesses on 18.6.2008 but since no witnesses were present, learned court below had given last opportunity on 11.7.2008. On that day, on the prayer of the plaintiffs, the case was adjourned after imposing a cost of Rs.100/-. The same thing was repeated on 31.7.2008 albeit by imposing a cost of Rs.200/-. On 22.8.2008, the matter was adjourned for 4.9.2008, on which date, at 4 P.M. the attendance of one witness-Babu Lal was given. No affidavited evidence was produced nor the said witness was present when the case was called out. The evidence of the plaintiffs was therefore closed on 14.9.2008. On 14.9.2008, an application was filed by the plaintiffs under section 151 of C.P.C. seeking permission to produce witnesses. No affidavited evidence was produced nor the said witness was present when the case was called out. The evidence of the plaintiffs was therefore closed on 14.9.2008. On 14.9.2008, an application was filed by the plaintiffs under section 151 of C.P.C. seeking permission to produce witnesses. The same was allowed on 5.2.2009 subject to deposit of a cost of Rs.200/-. The witness-Babulal was partially cross-examined. Thereafter he did not appear. On 25.06.2009, another opportunity was given to the plaintiffs subject to deposit of a cost of Rs.200/-. The witnesses never appeared on the next date which resulted in the evidence of the plaintiffs being closed on 9.9.2009. The plaintiff-Lakhi Mahto had submitted an application that those witnesses, who have previously filed their statements be allowed to be produced. The same was allowed on 16.12.2009 only to the extent of production of those witnesses, who have given their statements for their cross examination subject to deposit of a cost of Rs.1,000/-to the defendants. The matter thereafter kept lingering for non-production of the witnesses. On 22.2.2011, one Sadhu Mahto was examined on behalf of the plaintiffs. On 8.2.2012, the defendants were directed to produce their witnesses and the petitioners are aggrieved by the fact that no formal order of closure of plaintiffs’ evidence has been passed. The plaintiffs filed an application under section 151 of C.P.C. for recalling the order dated 8.2.2012 on the ground that they were directed to produce witnesses on 16.12.2009 and one witness was examined on 22.2.2011 and on 19.10.2011, the Presiding Officer was transferred and all of a sudden, the order dated 8.2.2012 was passed directing the defendants to produce witnesses thereby preventing the plaintiffs to adduce further evidence. The said application was rejected on 26.11.2012 since a similar application was already rejected on 8.8.2012. 8. Adverting back to the order dated 8.8.2012, the same rejected the application of the plaintiffs dated 10.7.2012, which was for permission to examine their witnesses. The sequential events narrated above would indicate how on one pretext or the other, the case got prolonged. The plea of the petitioners that without passing a formal order for closure of the plaintiffs’ evidence, the learned court below could not have directed the defendants to produce their witnesses is merely a technicality since from the order itself, it would be abundantly clear that the evidence of the plaintiffs was closed. The plea of the petitioners that without passing a formal order for closure of the plaintiffs’ evidence, the learned court below could not have directed the defendants to produce their witnesses is merely a technicality since from the order itself, it would be abundantly clear that the evidence of the plaintiffs was closed. As regards the order dated 8.8.2012 and 26.11.2012 are concerned, the same records dilatory tactics adopted by the plaintiffs and therefore there is no illegality in the said orders. 9. This case is an instance which highlights the efforts by the parties to the suit in protracting the litigation, which could have been avoided had the Presiding Officer been proactive. Such avoidable delay leads to scars in the dispensation of justice. An agonizing 39 years have passed since the initiation of the suit and yet there seems to be no end in sight. The ordersheet reveals a non-chalant approach on the part of the successive Presiding Officers when infact pragmatic and effective steps were the demands of the day. The title suit has therefore to be disposed of by the trial court on a priority basis. 10. It is, therefore, directed that learned trial court should expedite the hearing of the suit and conclude the same within a period of one month from the date of receipt/production of a copy of this order. The learned trial court shall also refrain from granting adjournments to either of the parties whatsoever be the circumstances. 11. This writ petition, therefore, stands disposed of without interfering into the orders dated 8.2.2012, 8.8.2012 and 26.11.2012 with a further direction to the learned trial court as enumerated above.