Amad Uddin @ Amodudan and 4 Ors v. Azir Uddin and 7 Ors

ORDER

15.03.2024

This is an application under Article 227 of the Constitution of India challenging the orders dated 19.12.2022, 07.02.2023 as well as 03.04.2023 Page No.# 4/6 passed in Title Suit No.176/2019.

¶2From a perusal of the materials on record, it is seen that the plaintiffs have filed a suit seeking declaration that the plaintiffs are the ejmali owners of Schedule A land by way of an amicable distribution of properties of the defendant No.3 as well as for permanent injunction. The defendant Nos.1 to 3 filed their written statement denying the case of the plaintiffs and sought for dismissal of the suit with compensation. From the record, it reveals that on

05.04.2022, issues were framed and the case was fixed on 13.05.2022 for plaintiff's evidence. The plaintiffs sought for time to submit their evidence on

13.05.2022, 22.06.2022, 26.07.2022, 07.09,2022, 16.11.2022 and 19.12.2022. The learned trial court taking into account that three last chances were granted closed the evidence of the plaintiffs and fixed the case on 07.02.2023 for defendants evidence. On 07.02.2023, the defendants submitted that they would not adduce any evidence, for which the matter was fixed on 15.03.2023 for arguments. On 15.03.2023, the plaintiffs sought for adjournment on the ground of the illness of the plaintiff. Thereupon, on 03.04.2023, an application was filed for recalling of the order dated 19.12.2022 on the ground that the PW-1 was ill for which the plaintiffs evidence could not be filed on 19.12.2023. The learned trial court rejected the said application also and fixed for argument/judgment and under such circumstances, the matter has come before this Court by way of the instant proceedings.

¶3This Court has duly taken note of the provisions of the Order XVII Rule 1 of the Code which categorically stipulates that no adjournment shall be granted for more than three times to a party during the hearing of the suit. This Court Page No.# 5/6 further finds it relevant to also take note of that hearing of the suits starts with the date fixed for submission of the evidence.

¶4In the instant case, the plaintiffs were afforded not only three opportunities, but were given three last chances and then also, they did not file their evidence. The order dated 19.12.2022 under such circumstances, can be said to be illegal or suffering from any material irregularity. However, this Court finds it very pertinent to observe that it is a well settled principle of law that pleadings are not evidence and the suit can only be decreed on the basis of evidence supported by pleadings. Under such circumstances, when there was no counter claim filed by the defendant or any admission of the rights of the plaintiffs, the learned trial court ought not to have fixed the matter for defendants' evidence and ought to have taken recourse to Order XVII Rule 3 (a) of the Code and have dismissed the suit then and there.

¶5This Court has also taken note of the order dated 03.04.2023, which also in the opinion of this Court was justified. Under such circumstances, this Court finds no merits to interfere with the impugned orders. This Court further vacates the order of stay dated 03.05.2023 passed by this Court and directs the parties to appear before the learned trial court on 08.04.2024. The learned trial court shall duly take note of the above observations while disposing of the suit.

¶6The revision petition, accordingly, stands dismissed.

Page No.# 6/6

JUDGE Comparing Assistant

PageoNo.#o1/6 GAHC010092062023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oCRP(IO)/125/2023o AMADoUDDINo@oAMODUDANoANDo4oORSo S/OoLATEoSOYAoUDDIN,o RESIDENToOFoVILL.oANDoP.O.-oGULCHERRA,o P.S.-oNILAMBAZAR,oDIST.-oKARIMGANJ,o ASSAM.oPIN-o788720. 2:oASADoUDDIN oS/OoLATEoSOYAoUDDIN o RESIDENToOFoVILL.oANDoP.O.-oGULCHERRA o P.S.-oNILAMBAZAR oDIST.-oKARIMGANJ o ASSAM.oPIN-o788720. 3:oMOINoUDDIN oS/OoLATEoSOYAoUDDIN o RESIDENToOFoVILL.oANDoP.O.-oGULCHERRA o P.S.-oNILAMBAZAR oDIST.-oKARIMGANJ o ASSAM.oPIN-o788720. 4:oJAMILAoKHANAM oD/OoLATEoSOYAoUDDIN o RESIDENToOFoVILL.oANDoP.O.-oGULCHERRA o P.S.-oNILAMBAZAR oDIST.-oKARIMGANJ o PageoNo.#o2/6 ASSAM.oPIN-o788720. 5:oBADRUNoNESSA oD/OoLATEoSOYAoUDDIN o RESIDENToOFoVILL.oANDoP.O.-oGULCHERRA o P.S.-oNILAMBAZAR oDIST.-oKARIMGANJ o ASSAM.oPIN-o788720o VERSUSo AZIRoUDDINoANDo7oORSo S/OoLATEoSOYAoUDDIN,o RESIDENToOFoVILL.oANDoP.O.-oGULCHERRA,o P.S.-oNILAMBAZAR,oDIST.-oKARIMGANJ,o ASSAM.oPIN-o788720. 2:SOLMANoUDDINo@oSOLMANoAHMED oS/OoAZIRoUDDIN o RESIDENToOFoVILL.oANDoP.O.-oGULCHERRA o P.S.-oNILAMBAZAR oDIST.-oKARIMGANJ o ASSAM.oPIN-o788720. 3:MAHMUDAoBIBI oW/OoLATEoSOYAoUDDIN o RESIDENToOFoVILL.oANDoP.O.-oGULCHERRA o P.S.-oNILAMBAZAR oDIST.-oKARIMGANJ o ASSAM.oPIN-o788720. 4:THEoDEPUTYoCOMMISSIONER oKARIMGANJ oP.O. oP.S.oANDoDIST.oKARIMGANJ o ASSAM. 5:THEoSUB-REGISTRAR Page No.# 3/6 PATHERKANDI P.O. AND P.S. PATHERKANDI DIST.- KARIMGANJ ASSAM. 6:THE SUB-REGISTRAR RATABARI P.O. AND P.S.- RATABARI DIST.- KARIMGANJ ASSAM. 7:THE SUB-REGISTRAR R.K. NAGAR P.O. AND P.S. RAMKRISHNANAGAR DISTRICT- KARIMGANJ ASSAM. 8:THE SUB-REGISTRAR KARIMGANJ P.O. P.S. AND DIST.- KARIMGANJ ASSAM Advocate for the Petitioner : MS. R CHOUDHURY Advocate for the Respondent : GA, ASSAM BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH