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2019 DIGILAW 711 (GAU)

Deben Das v. On the death of Putuli Devi

2019-06-10

SANJAY KUMAR MEDHI

body2019
JUDGMENT : Sanjay Kumar Medhi, J. 1. Heard Shri B.D. Deka, learned counsel for the petitioners. Also heard Shri B.K. Bhagawati, learned counsel for the respondents. 2. The instant petition has been filed under Article 227 of the Constitution of India challenging an order dated 15.05.2015, passed by the learned Munsiff No. 4, Kamrup (M), Guwahati in Title Suit No. 19/2004. The aforesaid order was passed in a Petition No. 559/2015 filed by the petitioners/defendants. 3. The brief facts of the case may be narrated as follows. 4. The predecessors of the respondents had instituted a Title Suit being T.S. 19/2004 for declaration of right, title, interest and recovery of possession. The claim had rested upon an unregistered gift dated 04.03.1965, executed by one Shri Gobinda Kumari Aideo in favour of the predecessors of the present respondents. 5. The petitioners, who are defendants in the suit, had contested the same and filed written statement. While denying the claim of the respondents/plaintiffs, it was averred in paragraph 16 of the written statement that the land in question was purchased by the defendants vide a registered sale deed, dated 25.06.1983. As there were certain error in the schedule, a rectification deed was also executed on 08.08.1983. As per the petitioners/ defendants, the land was purchased from the original owner who according to them is one Shri Gopi Rahang. Though the petitioners/defendants claimed that along with the written statement, a list of documents and the documents were filed, the same was not found in the records. It is also a fact that the records were transmitted from the Court of Munsiff No. 1 to the Court of the Munsiff No. 4. When the aforesaid fact was detected, the petitioners/ defendants had filed an application seeking adjournment on the ground that they would file the necessary documents. However, the learned Trial Court vide order dated 14.08.2009, had rejected the said application. It appears that no further action was taken by the petitioners/defendants on that point and ultimately on 16.12.2010, the suit was decreed in favour of the plaintiffs/respondents. 6. Against the judgment and decree dated 16.12.2010, passed by the learned Munsiff No. 4 Kamrup (M), the petitioners had preferred an Appeal before the learned Court of the Civil Judge No. 3 Kamrup, being Title Appeal No. 04/2011. 6. Against the judgment and decree dated 16.12.2010, passed by the learned Munsiff No. 4 Kamrup (M), the petitioners had preferred an Appeal before the learned Court of the Civil Judge No. 3 Kamrup, being Title Appeal No. 04/2011. Along with the same, the petitioners had also filed an application under Order 41 Rule 27 of the CPC praying for a liberty to adduce evidence at the appellate stage. 7. The learned first Appellate Court vide the judgment and order dated 29.09.2014, had allowed the Appeal and remanded the matter to the learned Trial Court for passing a fresh judgment by recording specific findings upon each of the issues after giving an opportunity of hearing to both the parties. It is seen that in the aforesaid order, the opportunity of hearing was specifically restricted by the learned first Appellate Court at the stage of "advancing arguments." For ready reference, the extract of the judgment of the learned first Appellate Court is quoted herein below:- "11. The judgment and decree passed by the learned Court below in Title Suit No. 19/2004 is hereby set aside and the case is remanded to the learned Court below with direction to pass a fresh judgment by recording specific findings upon each issue after giving an opportunity of hearing (advancing arguments) to both the parties. 8. On such remand, the petitioners/defendants had filed an application under Order 8 Rule 1A (3) of the CPC seeking leave of the Court to adduce fresh evidence by way of documents. Against the aforesaid application, the respondents/plaintiffs had filed their objections. The said petition, however, did not find favour and the learned Trial Court vide order dated 15.05.2015 had rejected the same. It is this order which is the subject matter of challenge in the present proceedings. 9. Shri B.D. Deka, learned counsel for the petitioners, submits that the learned first Appellate Court in its order dated 29.09.2014, having made it clear that the petitioners under Order 41 Rule 27 of the CPC was not considered, it was the duty of the learned Trial Court to duly consider the application under Order 8 Rule 1A (3) by following the principles laid down by the Code as well as by a catena of judicial pronouncements. Learned counsel submits that the issue which was raised by him on the point of introducing the documents which were the foundation and he cannot be left remediless by such action. It is submitted that the foundation of the written statement being the sale deed and the rectification deed, in the event, he is not allowed to bring those documents on records and prove the same, grave prejudice would be suffered by him. It is further submitted that it is not a case where the plaintiffs were not aware of such documents and since it was only a matter of formality, the discretionary power vested on the Trial Court, have been judiciously exercised by allowing the petition. 10. Shri Deka, learned counsel for the petitioners, has referred to the following judgments to bring home the point that the relevancy of the documents which are the subject matter of the petition under Order 8 Rule 1A (3) is of paramount importance which the learned Trial Court had failed to appreciate. 1. Pratima Bora vs. Tankeswar Bora and Others, 2015 (4) GLT 1008 2. Raifuddin Ahmed vs. Om Prakash Khakolia and Others, 2010 (6) GLR 437 3. Maharam Ali and Others vs. Indra Devi Jamatia, 2011 (2) GLT 832 11. Shri Deka, learned counsel for the petitioners, finally submits that substantial justice cannot be made subservient to technicalities and the facts of the case in hand justifies that the application should have been duly considered and allowed. 12. On the other hand, Shri B.K. Bhagawati, learned counsel for the respondents/plaintiffs, submits that the so called detection of not filing the documents along with the written statement was made only at the stage of cross-examination of the defendants witnesses. Even assuming that there was some inadvertent error in not filing the documents or the list thereof along with the written statement which is envisaged by the Code, even the evidence on affidavit of the DWs. were filed without marking any of those documents as exhibits. The same establishes that the petitioners/defendants were not only utterly negligent but they have had also waived their right. Shri Bhagawati, learned counsel, further submits that the order dated 14.08.2009, by which, the application of the petitioners praying for adjournment on the ground of non-filing of documents was rejected was not put to challenge. The same establishes that the petitioners/defendants were not only utterly negligent but they have had also waived their right. Shri Bhagawati, learned counsel, further submits that the order dated 14.08.2009, by which, the application of the petitioners praying for adjournment on the ground of non-filing of documents was rejected was not put to challenge. Though Shri Deka, the learned counsel for the petitioners/defendants, had submitted that such situation can be saved by Section 104 of the CPC, no grounds have been able to shown in the Memo of Appeal filed before the learned first Appellate Court challenging the aforesaid order dated 14.08.2009. The learned counsel for the respondents has also submitted that from 14.08.2009, more than a year had passed before the suit was decreed and no action being taken on that issue by the petitioners/defendants, the same amounted to waiving of the rights. The final contention of the learned counsel for the respondents is that when the learned Appellate Court in the judgment dated 29.09.2014 had remanded the matter to the learned Trial Court by imposing certain conditions, namely, that in the remand, the opportunity to the parties would only be at the stage of advancing arguments, no fault can be attributed to the learned Trial Court in passing the impugned order dated 15.05.2015. He emphatically submits that the appeal was preferred by the petitioners/defendants and the findings not being put to challenge any further, such findings of the learned first Appellate Court had attained finality. Therefore, the learned Trial Court had acted in accordance with the observation made by the first Appellate Court while passing the order dated 15.05.2015. 13. The rival contentions of the learned counsels have been duly considered and the materials before this Court have been carefully examined. 14. There is no manner of doubt that the provisions of Order 8 Rule 1A (3) is a discretionary provision vested on the Courts and such discretion has to be exercised reasonably, fairly and for the furtherance of justice. 15. However, in the instant case, the impugned order dated 15.05.2015 has been passed after the remand made by the learned first Appellate Court vide the judgment dated 29.09.2014 with certain conditions, namely "advancing arguments" by both the parties. 15. However, in the instant case, the impugned order dated 15.05.2015 has been passed after the remand made by the learned first Appellate Court vide the judgment dated 29.09.2014 with certain conditions, namely "advancing arguments" by both the parties. Such restrictions imposed by the learned first Appellate Court not been put to challenge and rather allowed to attain finality, it would not lie on the part of any of the parties to criticize an order passed by the learned Trial Court which has been passed by following such restrictions. Though in any other case, an application under Order 8 Rule 1A (3) would deserve a different consideration, in the instant case, because of the restrictions imposed by the learned first Appellate Court, such discretion was circumscribed as the remand was only on the stage of advancing arguments. This Court has further observed that it is not only at the stage of filing of the written statement that the list of documents and the documents as such were not found to be filed along with the same, even the evidence on affidavit of the DWs. did not annex any of this documents by marking as exhibits. The suit was instituted in the year 2004 and as indicated above, neither in the written statement nor in the evidence filed by way of affidavit, the documents have been annexed or marked as exhibits. The aforesaid fact establishes gross negligence on the part of the petitioners/ defendants. Even after the order dated 14.08.2009, passed by the learned Trial Court rejecting the application of the petitioners/defendants seeking for time to file the documents, no action has been seen to be taken till the suit was decreed on 16.12.2010. Shri Deka, learned counsel for the petitioners, has not been able to point out any grounds in the appeal preferred against the aforesaid judgment dated 16.12.2010, whereby, challenge to the order dated 14.08.2009, has been made Therefore, no aid can be taken of under Section 104 of the C.P.C. 16. In view of the aforesaid facts and circumstances, this Court is of the opinion that no case for interference is made out and accordingly the present petition is dismissed.