On the Death of Musstt Afruja Begum Barbhuiya, Her Legal Heirs v. On the Death of Md. Mahamod Ali Barbhuiya and Anr

ORDER

11.08.2023 Heard Ms. P Bhattacharya, learned counsel for the petitioners whereas Shri SD Purkayastha, learned counsel is present for the contesting respondents. A short issue has arisen for consideration in this petition filed under Section 227 of the Constitution of India. The petitioner is aggrieved by an order dated 02.03.2022 passed by the learned Munsiff No. 5-cum-JMFC Cachar, Silchar in Title Suit No. 111/2012. The suit was instituted against the petitioners as defendants for declaration of right, title, interest, confirmation of possession and cancellation of sale deed. When the suit had reached the stage of examination of two numbers of defence witnesses, the matter did not proceed and as such, there was a delay from the year Page No.# 4/5 2017 to 2022. Considering the above, the learned Munsiff vide the impugned order dated

02.03.2022 had expunged the evidence of DW1 and DW2. Ms. Bhattacharya, learned counsel for the petitioners-defendants has submitted that there were compelling reasons for seeking adjournments. She submits that there were deaths of parties which required substitution and in the mean time, in the year 2020, the Covid pandemic had also affected the proceedings and therefore, there was no deliberate attempt to prolong the suit. On the other hand, opposing the present prayer, Shri Purkayastha, learned counsel for the respondents has submitted that the order impugned was passed by taking into consideration all the relevant facts and circumstances and the principal consideration that there was unnecessary delay is a relevant one and therefore, the order may not require any interference. After hearing the learned counsel for both the parties, this Court is of the considered opinion that the reasons cited for passing the order dated 02.03.2022 may not be construed as wholly irrelevant, as expeditious disposal of a suit/proceeding is an essential component. However, this Court is of the opinion that interest of justice would be served if a last opportunity is granted to the defendants to produce the DW1 and DW2 for their cross-examinations. However, such order is required to be a conditional order. Therefore, while the impugned order dated 02.03.2022 whereby the evidence of DW1 and DW2 was expunged is set aside, the learned Munsiff No. 5, Cachar is directed to allow the DW1 and DW2 to be cross-examined on a date to be fixed by the said Court. The present order, however, is subject to payment of cost of Rs.5,000/- which is imposed upon the petitioners-defendants to be paid to the respondents. The petition is, accordingly allowed and the parties are directed to appear before the learned Munsiff No. 5-cum-JMFC Cachar, Silchar on 28.08.2023 on which date, the Page No.# 5/5 learned Court will fix a date for the cross-examination as a last chance. The revision petition stands disposed of.

JUDGE Comparing Assistant

PageoNo.#o1/5 GAHC010134652022 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oCRP(IO)/153/2022o ONoTHEoDEATHoOFoMUSSTToAFRUJAoBEGUMoBARBHUIYA,oHERoLEGALo HEIRSo DIST.oCACHAR,oASSAM. 1.1:oJIYAURoRAHAMANoBARBHUIYA oS/OoLATEoMOBIJILoALIoBARBHUIYAoANDoLATEoAFRUJAoBEGUMo BARBHUIYA oVILL.oPANGRAM oPT-III oP.O.oANDoP.S.oUDHARBOND oDIST.oCACHAR oASSAM. 1.2:oABIDURoRAHAMANoBARBHUIYA oS/OoLATEoMOBIJILoALIoBARBHUIYAoANDoLATEoAFRUJAoBEGUMo BARBHUIYA oVILL.oPANGRAM oPT-III oP.O.oANDoP.S.oUDHARBOND oDIST.oCACHAR oASSAM. 1.3:oAMIJURoRAHAMANoBARBHUIYA oS/OoLATEoMOBIJILoALIoBARBHUIYAoANDoLATEoAFRUJAoBEGUMo BARBHUIYA oVILL.oPANGRAM oPT-III oP.O.oANDoP.S.oUDHARBOND oDIST.oCACHAR oASSAM. 1.4:oTAMIZURoRAHAMANoBARBHUIYA oS/OoLATEoMOBIJILoALIoBARBHUIYAoANDoLATEoAFRUJAoBEGUMo BARBHUIYA PageoNo.#o2/5 oVILL.oPANGRAM oPT-III oP.O.oANDoP.S.oUDHARBOND oDIST.oCACHAR oASSAMo VERSUSo ONoTHEoDEATHoOFoMD.oMAHAMODoALIoBARBHUIYAoANDoANRo HISoLEGALoHEIRS- 1:v)oMD.oANOWARoUDDINoBARBHUIYA oS/O.oLT.oMAHAMODoALIoBARBHUIYA oR/O.oVILL.oPANGRAM oPT-III oP.O.oANDoP.S.oUDHARBOND oDIST.oCACHAR oASSAM. 1:iv)oMD.oMOHIBoUDDINoBARBHUIYA oS/O.oLT.oMAHAMODoALIoBARBHUIYA oR/O.oVILL.oPANGRAM oPT-III oP.O.oANDoP.S.oUDHARBOND oDIST.oCACHAR oASSAM. 1:iii)oMD.oSAHABoUDDINoBARBHUIYA oS/O.oLT.oMAHAMODoALIoBARBHUIYA oR/O.oVILL.oPANGRAM oPT-III oP.O.oANDoP.S.oUDHARBOND oDIST.oCACHAR oASSAM. 1:ii)oMD.oJAHURoUDDINoBARBHUIYA oS/O.oLT.oMAHAMODoALIoBARBHUIYA oR/O.oVILL.oPANGRAM oPT-III oP.O.oANDoP.S.oUDHARBOND oDIST.oCACHAR oASSAM. 1:i)oMD.oMOINoUDDINoBARBHUIYA Page No.# 3/5 S/O. LT. MAHAMOD ALI BARBHUIYA R/O. VILL. PANGRAM PT-III P.O. AND P.S. UDHARBOND DIST. CACHAR ASSAM. 1:vi) MD. KAMRUL ISLAM BARBHUIYA S/O. LT. MAHAMOD ALI BARBHUIYA R/O. VILL. PANGRAM PT-III P.O. AND P.S. UDHARBOND DIST. CACHAR ASSAM Advocate for the Petitioner : MS. P BHATTACHARYA Advocate for the Respondent : MR. S D PURKAYASTHA BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI