Allowed

Parveen Begum @ Sk. Parvin Begam and Ors. v. Basera Khatoonand Ors.

Calcutta HC16 Aug 2023CO/1308/2023

Case brief

AI extract

What is this about?

This revision allowed the petition to set aside the lower court's order permitting a belated recall of a preemptor witness years after a constituted attorney had already examined evidence on her behalf, holding such recall was unnecessary and not supported by material.

What did the court decide?

Set aside impugned order dated February 14, 2023; revisional application allowed; no order as to costs.

Parveen Begum @ Sk. Parvin Begam and Ors. Vs Basera… — Property and Title | Calcutta HC (2023)

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16.08.2023 Sl. No.16(DL) srm

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C.O. No. 1308 of 2023

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Parveen Begum @ Sk. Parvin Begam & Ors.

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Versus

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Basera Khatoon & Ors.

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Mr. Mahendra Prasad Gupta, Ms. Adeli Bhattacharyya

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…for the Petitioners.

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Sk. Abdus Salam, Mr. Mosleuddin Ahmed

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…for the Opposite Parties.

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The learned Civil Judge (Senior Division), 1^st Court, Howrah, by the order impugned dated February 14, 2023 passed in Title Suit No.38 of 2008, allowed the application filed by the preemptor/opposite party No.1. The prayer for recall of the petitioner to adduce evidence after the evidence of the PW was closed and the PW was discharged two years ago, had been allowed.

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The son of the preemptor/opposite party No.1 represented his mother as a constituted attorney. The law provides that an agent can represent a party in a suit. Accordingly, the son as the constituted attorney adduced evidence and was examined and cross-examined. He was discharged. After two year from such discharge and when the

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evidence of DW1 was closed, the preemptor wanted to recall herself on the ground that some religious rituals were required to be incorporated in the evidence. Such application was allowed by the learned court below, without any cogent reasons.

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This Court is of the view that unless there were convincing material requiring recall of the plaintiff when her son had already examined himself as an authorised constituted attorney of the preemptor, such application should not have been allowed at such a belated stage, on the mere asking. The application records that certain religious rituals were required to be proved in evidence.

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The right of pre-emption can be exercised on three grounds; co-sharership, contiguous ownership and bargadarship. The petitioner has already filed the application for pre-emption claiming to be a contiguous adjoining owner. Thus, what was required to be proved was that the petitioner had the longest common boundary with the land sold. In such situation, there cannot be any religious requirement which was required to be proved in order to obtain a decree of preemption.

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It is made clear that the application filed by the petitioner also did not disclose that the constituted attorney had acted contrary to the interest of the preemptor. It is

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settled-principle of law that recalling of a witness after two years, cannot be allowed in order to fill up any gap or lacuna in the evidence.

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Hence the order impugned dated February 14, 2023 is

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set aside. The revisional application is allowed.

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The revisional application is, thus, disposed of.

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There shall be no order as to costs.

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Parties are to act on the basis of the server copy of this

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order.

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(Shampa Sarkar, J.)

Parveen Begum @ Sk. Parvin Begam and Ors. v. Basera Khatoonand Ors.

Case brief

What is this about?

What did the court decide?

Parveen Begum @ Sk. Parvin Begam and Ors. v. Basera Khatoonand Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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