Remanded

Anami Rabha v. Fukanta Rabha and 3 Ors.

Gauhati HC8 Jan 2020CRP(I/O)/52/2019

Case brief

AI extract

What is this about?

Writ petition under Article 227 challenging an order closing plaintiff's evidence due to excessive adjournments. High Court found jurisdictional error and remanded matter for compliance with Order XVII Rule 1 CPC.

What did the court decide?

Order dated 18.12.2018 quashed and matter remanded to trial court to consider witness expiration and pass appropriate order within three weeks.

Anami Rabha Vs Fukanta Rabha and 3 Ors. — Civil Procedure and Limitation | Gauhati HC (2020)

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Page No.# 1/3

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GAHC010035712019

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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) 52/2019

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1:ANAMI RABHA

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W/O LATE AKAN RABHA, R/O. VILLAGE AG-GUMI, P.S. CHAYGAON, IN THE DIST. OF KAMRUP(R), ASSAM, PIN- 781137.

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VERSUS

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1:FUKANTA RABHA AND 3 ORS.

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S/O LT. SUKIN RABHA, R/O. VILL. AG-GUMI, BALAGAON ROAD, P.S.CHAYGAON, MOUZA- PUB CHAMARIA, DIST. KAMRUP(R), ASSAM, PIN781137

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2:SEWALI RABHA W/O. LATE AMRIT RABHA R/O- VILLAGE AG-GUMI BALAGAON ROAD P.S.- CHAYGAON MOUZA- PUB CHAMARIA DIST. KAMRUP(R) ASSAM.

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3:MAYA RABHA (MINOR) D/O.- LT. AMRIT RABHA R/O. VILLAGE AG-GUMI BALAGAON ROAD P.S.- CHAYGAON MOUZA- PUB CHAMARIA DIST. KAMRUP(R) ASSAM PIN- 781137. RESPONDENT NO. 3 THE MINOR IS REP. BY HER NATURAL GUARDIAN CUM MOTHER SMTI. SEWALI RABHA.

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4:KARTIK RABHA (MINOR)

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S/O.- LT. AMRIT RABHA R/O. VILLAGE AG-GUMI BALAGAON ROAD P.S.- CHAYGAON MOUZA- PUB CHAMARIA DIST. KAMRUP(R) ASSAM PIN- 781137. RESPONDENT NO. 4 THE MINOR IS REP. BY HIS NATURAL GUARDIAN CUM MOTHER SMTI. SEWALI RABHA

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Advocate for the Petitioner : MR. L K BORAH

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Advocate for the Respondent :

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BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA

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ORDER

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Date : 08.01.2020

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Heard Mr. L.K. Borah, learned counsel for the petitioner.

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By this application under Article 227 of the Constitution of India, the petitioner has challenged the order dated 18.12.2018 passed by the learned Munsiff, Kamrup (R), Amingaon in TS 70/2014. By the said order, the petition for examining unlisted witness was closed.

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By referring to the order sheet of the learned trial Court, it is submitted that the suit was instituted on 25.08.2011 and the case was fixed for PWs on 16.06.2012. It is submitted that the order sheet would show that since 16.06.2012 enumerable adjournments have been taken by the respondents/ plaintiffs and therefore, the evidence of PWs was closed by order dated 18.12.2017 and the next date of the suit was fixed for filing of defendant’s witness (DWs) on 12.02.2018. It is also submitted that in the application filed under Section 151 CPC for examining further witness, being petition No. 2033 dated 18.12.2017, it was stated that one of the PWs, namely, Azim Ali had died before cross-examination and therefore, the respondents desired to produce Aynul Ali, Farman Ali and Chandra Biswas as further plaintiff’s witness. It is submitted that the petitioners had filed their written objection, however, learned trial Court had allowed the said petition No. 2033/2017, allowing the respondents to positively

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file their evidence on affidavit on the next date fixed.

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The learned counsel for the petitioner has submitted that the plaintiff’s witness was closed on 18.12.2017 and there is nothing on record to show when one witness, namely, Azim Ali had expired and therefore, the impugned order is not sustainable as the learned trial Court did not take into account the provisions of Order XVII Rule 1 CPC which provides that more than three adjournments would not be granted to a party during hearing of the suit.

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On considering the submissions made by the learned counsel for the petitioner, this Court finds sufficient force in the arguments because it is observed that the first date fixed for filing of plaintiff’s witness was on 16.07.2012 by virtue of order dated 16.06.2012 and the evidence of PWs was closed by order dated 18.12.2017 i.e. after a period of five years. Hence, without recording a finding that when the listed witness has expired, the impugned order, if allowed to stand, would negate the provisions of Order XVII Rule 1 CPC and proviso appended thereto. Accordingly, the Court has no hesitation to set aside the order dated 18.12.2018, as the order dated 18.12.2018 is found to be vitiated by jurisdictional error because while allowing petition No. 2033/2017, the learned trial Court did not consider the provisions of Order XVII Rule 1 CPC.

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Accordingly, the matter is remanded back to the learned trial Court with a direction to take into account the date on which the witness, namely, Azim Ali had expired. Thereafter, being guided by the principles of Order XVII Rule 1 CPC, appropriate order would be passed by the learned trial Court without any delay and in any event within a period of 3(three) weeks from the date of receipt of the certified copy of this order by ensuring that the notice of the case is served on the last set of counsel engaged by the respondents (plaintiffs).

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The petitioner shall appear before the court of learned Munsiff, Kamrup (R), Amingaon on or before 28.01.2020 and by producing a certified copy of this order, seek further instructions from the said learned Court.

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This application stands disposed of.

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JUDGE

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Comparing Assistant

Anami Rabha v. Fukanta Rabha and 3 Ors.

Case brief

What is this about?

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Anami Rabha v. Fukanta Rabha and 3 Ors.

Case brief

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