Allowed

Krishna Gopal Karmakar v. Janardhan Saha and 7 Ors.

Gauhati HC5 Jun 2020CRP(I/O)/153/2019

Case brief

AI extract

What is this about?

The Gauhati High Court allowed a revision petition against an order closing the plaintiff's case due to default in filing evidence. The Court set aside the lower court order and granted the petitioner one last opportunity to file evidence on affidavit within ten days, subject to a fine and service conditions.

What did the court decide?

Impugned order set aside; petitioner permitted to file evidence on affidavit within ten days on depositing Rs. 5,000 as cost.

Krishna Gopal Karmakar Vs Janardhan Saha and… — Civil Procedure and Limitation | Gauhati HC (2020)

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Page No.# 1/4

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GAHC010113292019

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : CRP(I/O) 153/2019

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1:KRISHNA GOPAL KARMAKAR

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S/O LT. GOUR CHANDRA KARMAKAR, R/O VILL. BAGRABARI, ARAIANI, P.O. AND P.S. BAGRIBARI, DIST.-KOKRAJHAR, (BTAD), ASSAM

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VERSUS

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1:JANARDHAN SAHA AND 7 ORS.

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S/O LT. KALIDAS SAHA, R/O BAGRIBARI, ARAIANI, P.O. AND P.S. BAGRIBARI, DIST.-KOKRAJHAR, BTAD, ASSAM

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2:RISHIKESH SAHA S/O LT. KALIDAS SAHA R/O BAGRIBARI ARAIANI P.O. AND P.S. BAGRIBARI DIST.-KOKRAJHAR BTAD ASSAM

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3:GOPAL SAHA S/O LT. SRIDAM SAHA R/O VILL. BAGRIBARI ARAINI P.O. AND P.S. BAGRIBARI DIST.-KOKRAJHAR BTAD ASSAM

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4:BISWAJIT SAHA S/O LT. SRIDAM SAHA R/O VILL. BAGRIBARI ARAINI

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P.O. AND P.S. BAGRIBARI DIST.-KOKRAJHAR BTAD ASSAM

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5:NANDA DULAL SAHA S/O LT. SRIDAM SAHA R/O VILL. BAGRIBARI ARAINI P.O. AND P.S. BAGRIBARI DIST.-KOKRAJHAR BTAD ASSAM

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6:MAYA RANI SAHA W/O LT. SRIDAM SAHA R/O VILL. BAGRIBARI ARAINI P.O. AND P.S. BAGRIBARI DIST.-KOKRAJHAR BTAD ASSAM

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7:SANJIB KUMAR SAHA S/O SHRI JHANTU SAHA R/O GOSSAIGAON SITALIPARA P.O. AND P.S. GOSSAIGAON DIST.-KOKRAJHAR BTAD ASSAM 8:JHANTU SAHA R/O GOSSAIGAON SITALIPARA P.O. AND P.S. GOSSAIGAON DIST.-KOKRAJHAR BTAD ASSA

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Advocate for the Petitioner : MR R DHAR

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Advocate for the Respondent : MD H R AHMED (R1, R2)

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BEFORE

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HONOURABLE MR. JUSTICE SUMAN SHYAM

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ORDER

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Date : 05-06-2020

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Heard Mr. R. Dhar, learned counsel for the petitioner. Also heard Mr. H.R. Ahmed, learned counsel appearing for the respondent nos. 1 and 2. None has appeared for the remaining respondents.

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This revision petition has been preferred against the order dated 01/03/2019 passed by the learned Civil Judge, Kokrajhar, in connection with Title Suit No. 06/2016, whereby, evidence of the plaintiff was closed on account of default on his part to file the evidence on affidavit on the date fixed for that purpose.

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By referring to the documents available on record, Mr. Dhar submits that the evidence on affidavit of as many as four witnesses of the plaintiff was made ready for filing but on 01/03/2019, the same could not be brought on record due to a communication gap between the plaintiff and his lawyer owing to sudden illness of the plaintiff’s wife. Urging that there is a counter claim in the suit and, therefore, if the plaintiff is not granted an opportunity to file his evidence on affidavit, serious prejudice will be caused to his interest, Mr. Dhar has prayed for one opportunity for his client to produce the evidence, which would be subject to any condition that may imposed by this Court.

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Mr. Ahmed, on the other hand, has strongly opposed the prayer made by the petitioner’s counsel and by inviting the attention of this Court to the order dated 06/01/2020, submits that even the additional affidavit as directed by this Court, has not been brought on record. Under the circumstances, Mr. Ahmed has prayed for dismissal of the revision petition.

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I have considered the submissions advanced by the learned counsel for the parties and also gone through the materials available on record.

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It appears that despite a number of opportunities granted to him, the petitioner had failed to file his evidence on affidavit, as a result of which, the learned Court below was compelled to pass the impugned order dated 01/03/2019.. To that extent, no infirmity is found in the impugned order dated 01/03/2019. However, this Court is also conscious of the fact that the subject matter of the suit pertains to right, title and interest over a plot of land and the respondents/defendants have also come up with a counter claim. Therefore, although the conduct of the petitioner does not appear to be

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satisfactory enough, to this Court, yet, considering the over all facts and circumstances of the case and for ends of justice, I am inclined to grant one last opportunity to the petitioner to file his evidence on affidavit.

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As such, the prayer made in the revision petition stands allowed.

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The impugned order dated 01/03/2019 stands set aside.

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The petitioner is permitted to file his evidence on affidavit before the learned trial Court along with the certified copy of this order within ten days from today. The evidence on affidavit would be taken on record, subject to the condition that a sum of Rs. 5,000/- (Rupees five thousand) in cash as cost payable to the respondents, is deposited by the petitioner and an advance copy of the evidence on affidavit is also served upon the defendants’ before presenting the same before the learned trial Court.

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It is made clear that if the plaintiff, for any reason, fails to comply with the condition mentioned above, his right to lead evidence in the Title Suit shall stand struck off without any further reference to this Court.

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With the above observation, the revision petition stands disposed of.

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Interim order passed earlier stand vacated.

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JUDGE

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Sukhamay

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Comparing Assistant

Krishna Gopal Karmakar v. Janardhan Saha and 7 Ors.

Case brief

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Krishna Gopal Karmakar v. Janardhan Saha and 7 Ors.

Case brief

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