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2019 DIGILAW 1245 (GAU)

Rupali Naug v. Raj Kumar Bajaj

2019-11-19

PRASANTA KUMAR DEKA

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JUDGMENT : Prasanta Kumar Deka, J. Heard Mr. N Dhar, learned counsel for the petitioner. Also heard Mr. D Chakraborty, learned counsel for respondent No. 1 and Mr. C. Chakraborty, learned counsel for the respondent No. 9. 2. The petitioner filed T.S. No. 331/2010 in the court of learned Munsiff No. 1, Kamrup (M) at Guwahati. The suit was filed against the respondent No. 1 and its authorised agent. The suit was for permanent injunction. It is the claim of the plaintiff petitioner that the land she is possessing is the ceiling surplus land acquired from the defendant No. 1 Company. On the strength of possession and subsequent alleged khatian to Mr. Girindra Biswas and Mohitosh Nandi, the petitioner made separate arrangement with them and was possessing the suit land carrying out business thereon. Advocate notice was issued to the plaintiff petitioner for vacating the suit land following which the suit was filed against the defendant respondent Nos. 1 and 2 for the relief of permanent injunction restraining the said defendants respondents from entering into the suit land and interfering with the possession. Along with the said suit an application under Order 39 Rule 1 & 2 of the CPC was filed seeking for same relief in the temporary form as the one sought for in the plaint. 3. The learned court below upon motion issued summons to the respondents. On 19.08.2010 summons were issued with a direction to the defendants respondents to maintain the then status of the plaintiff's possession until further order. The suit land along with other land of the defendant respondent No. 1 company was charged by way of an equitable mortgage against the loan sanctioned by IDBI Bank. On default in liquidating the said loan the Bank filed Original Application No. 27/2002 and necessary certificate was issued by the Debt Recovery Tribunal (DRT), Guwahati. On the basis of an application filed by the defendant respondent No. 2, vide order dated 12.10.2010 of the DRT the land under possession of the plaintiff petitioner was allowed to be attached. As per report of the recovery officer, DRT the suit land was attached on 12.07.2011. Upon such attachment the petitioner preferred WP(C) No. 4082/2011 impleading the various parties including the officials of the Tribunal, district administration etc. As per report of the recovery officer, DRT the suit land was attached on 12.07.2011. Upon such attachment the petitioner preferred WP(C) No. 4082/2011 impleading the various parties including the officials of the Tribunal, district administration etc. Vide order dated 12.08.2011 in the writ petition notice of motion was issued fixing 21.09.2011 as the returnable date with a direction to maintain status quo as regards to the possession over the land in question. Vide order dated 06.01.2012 the writ petition was dismissed on the ground that disputed facts were incorporated in the writ petition and adjudication of such matters were not warranted under the writ jurisdiction. While passing the said order the writ court observed further that the order of dismissal was without any prejudice to the petitioner. On 19.10.2012 the date for handing over the physical possession to the purchaser of suit land was re-fixed on 31.10.2012 with the assistance of the District Administration and the Revenue Officer. Vide order dated 31.10.2012 the physical possession of the suit land was handed over to its purchaser. Thereafter the petitioner filed an application under Order 39 Rule 2A of the CPC in the learned court below which was registered as Misc case No. 688/2012. By way of said petition the petitioner sought for punishment of the opposite parties therein for violation of the order of status quo passed by the learned court below in T.S. No. 331/2010. 4. The present defendant respondent No. 1 filed objection against the said violation petition. In the said violation petition the DRT officials were also impleaded. In order to prove the fact of violation even after the knowledge on the part of the officials of the DRT, the petitioner took the leave to call for original case record of OA No. 27/2002 but Registrar of the said Tribunal informed the court that the said case record could not be sent, however, granted the liberty to the plaintiff petitioner to obtain the required certified copies. The petitioner in her evidence exhibited various orders marked as Ext. 2, 3 and 14 passed by the Recovery Officer of DRT and thereafter issued summons to the Recovery Officer, Recovery Inspector of DRT to appear before the learned court on 27.11.2013 to prove the said exhibits. The petitioner in her evidence exhibited various orders marked as Ext. 2, 3 and 14 passed by the Recovery Officer of DRT and thereafter issued summons to the Recovery Officer, Recovery Inspector of DRT to appear before the learned court on 27.11.2013 to prove the said exhibits. Despite service of summons the said Officials failed to appear and as such the petitioner again filed an application seeking for direction to take steps by the petitioner to issue summons to the said officials to depose as witness in her favour to prove the documents filed by the petitioner. Vide order dated 05.12.2013 the leave was granted by the learned court below. In fact on 12.02.2014 one Mr. S Seal an official of the DRT filed an adjournment petition seeking time to depose. On 06.03.2014 the Recovery Inspector was present but not examined as PW as he was the opposite party in the case. On refusal to record the evidence of the said Recovery Inspector as witness of the petitioner side by the court below a petition raising the issue that opposite party can depose as the witness of the petitioner side was taken up for disposal. Vide order dated 03.05.2014 learned court below disallowed the said application holding that it would be unconstitutional to compel the opposite party Nos. 2 and 3 namely, Recovery Officer and Recovery Inspector of the DRT to depose against themselves. The said order is put under challenged in this revision petition. 5. Mr. Dhar submits that there is no bar in allowing the opposite party to stand as the witness of the petitioner side. In support of his contention Mr. Dhar relied various decisions of the Hon'ble High Courts and Supreme Court. It is his contention that the question of Article 20(3) of the Constitution of India is not applicable in Civil Suits under ordinary jurisdiction of the civil court. It is his contention that the order of status quo directing maintenance of the possession of the petitioner was passed by the learned court below and the same was violated at the instance of the defendant respondent No. 2. The attachment and subsequent dispossession was the handiwork of the defendant respondent No. 2 in collusion with the officials of the DRT. The attachment and subsequent dispossession was the handiwork of the defendant respondent No. 2 in collusion with the officials of the DRT. In order to justify the claim of the petitioner the said officials are required to adduce evidence in order to prove various orders exhibited by the petitioner and passed by the Tribunal. Summing up he submits that the finding that it would be unconstitutional to direct the opposite party to depose on behalf of the petitioner was wrong and required to be interfered. 6. Mr. Chakraborty raises his objection that the petition itself shows that the parties were impleaded in their private capacities and now the same has become infructuous keeping in view the individual persons impleaded in the violation petition are no longer serving in the present Tribunal. Against his submission Mr. Dhar submits that in fact the petition was filed to call for the person holding the official position at the Tribunal which was rejected. 7. I have considered the submissions of the learned counsel. It is the submission of Mr. Dhar that the defendant respondent No. 1 in collusion with the officials of the Tribunal dispossessed the petitioner and as such the officials of the Tribunal were impleaded in the violation petition. The issue of collusion cannot be decided in the violation petition. The same will have to be taken up as an issue in the main suit. The fact of wilful violation must be proved in the said proceeding before the learned court below. But as an order passed under Order 39 Rule 2 A of the CPC has its civil consequences the same must be proved in the strict sense. The petitioner in order to prove her case and to show that there was wilful violation of the order passed by the learned court below relied some of the official orders passed by the DRT and in order to prove the Exhibits the petitioner sought for leave of the court to issue summons to the said officials. The learned court below rejected the said application on the ground that the said witnesses are opposite parties in the proceeding and they cannot be called as witness to support the case of the petitioner. The learned court below rejected the said application on the ground that the said witnesses are opposite parties in the proceeding and they cannot be called as witness to support the case of the petitioner. Though the learned court below has expressed the same as "unconstitutional" but the intent and purpose of using the said word indicates that the opposite parties cannot be directed by the court to adduce evidence on behalf of the petitioner until and unless they appear on their own volition. From the various orders passed by the learned court below it is found that the petitioner had already exhibited as hereinabove stated some of the orders passed by the learned Tribunal. As the official orders and act of the officials are relevant facts U/s 35 of the Indian Evidence Act and such recording thereof is covered within the definition of public documents as defined U/s 74 of the Indian Evidence Act. Section 77 of the Indian Evidence Act stipulates that such certified copy may be produced in proof of the contents of the public document. In view of the said provision under the Indian Evidence Act in my considered opinion if the official orders are certified that is sufficient to prove the contents of the said orders and official witnesses are not required to prove the contents of the said document. If the petitioner had already exhibited the said orders in its certified form duly certified by the competent officials of the Tribunal it would be sufficient to hold that the said certified copies are the proof of the contents of the orders. However if the exhibits are not certified the officials of the Tribunal are hereby directed to issue certified copies of the said exhibits relied by the petitioner in her evidence in the proceeding. 8. Accordingly, with the said observation and direction this revision petition stands disposed of. Once certified copies issued by the officials of the Tribunal are exhibited official witnesses are not required in order to prove the said exhibits, however if the opposite parties as officials of the Tribunal appears in order to depose in respect of the stand taken by them in the proceeding there shall be no bar. Parties in this petition shall appear before the learned court below on 06.12.2019. Interim order passed earlier stands vacated. No costs.