Priyanath Saha and 2 Ors v. On the Death of Tushar Kanti Saha His Legal Heirs,

ORDER

16.08.2024 Heard Mr. S.K. Ghosh, learned counsel for the petitioners and also heard Ms. R. Page No.# 3/4 Saha, learned counsel appearing for the respondent Nos.1 and 2.

¶2In this petition under Article 227 of the Constitution of India, three petitioners, namely, Priyanath Saha, Bijit Kumar Saha and Sanjit Kumar Saha have put to challenge the correctness or otherwise of the order dated 29.04.2022, passed by the learned Civil Judge, Bongaigaon, in Title Suit No.26/2018. It is to be noted here that vide impugned order dated 29.04.2022, the learned Civil Judge, Bongaigaon, has closed the evidence of the PWs for not taking any step by the petitioners.

¶3Mr. Ghosh, learned counsel for the petitioners, submits that the petitioners, as plaintiffs, have instituted a title suit, being Title Suit No.26/2018 before the learned Civil Judge, Bongaigaon and the same was pending at the stage of evidence. Then, vide order dated 29.04.2022, the learned Civil Judge, Bongaigaon has closed the evidence of the plaintiffs' side and fixed the case for evidence of the defendants' side. Thereafter, the petitioners have preferred a petition, being Petition No.1294/2022, for granting another date for filing evidence. However, the learned Civil Judge refused to recall the earlier order dated 29.04.2022, vide order dated 19.05.2022. Mr. Ghosh further submits that three witnesses are yet to be examined and their examination is very much necessary to decide the suit and therefore, it is contended to allow the petition.

¶4Per contra, Ms. Saha, learned counsel for the respondent Nos.1 and 2 submits that the respondents have no objection in the event of allowing the petition.

¶5Having heard the submission of learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record and also perused the order dated 29.04.2022 and also the order dated 19.05.2022 passed in Title Suit No.26/2018.

¶6It appears that on 29.04.2022 the learned Civil Judge, Bongaigaon, has closed the evidence of the plaintiffs' side as the plaintiffs have not taken any step and thereafter, the Page No.# 4/4 petitioners have preferred one petition, being Petition No.1294/2022 before the learned Civil Judge, Bongaigaon and the learned Civil Judge has dismissed the same on

19.05.2022. It is well settled that right to fair trial is a right of both the parties to a proceeding be it civil or criminal. Fair trial includes affording a fair opportunity to both the parties to prove their respective cases.

¶7Thus, having considered the submission of learned Advocates of both sides and also considering the facts and circumstances on the record, this Court is inclined to allow this petition. Accordingly, the impugned orders dated 29.04.2022 and 19.05.2022, passed by the learned Civil Judge, Bongaigaon, in Title Suit No.26/2018, stand set aside.

¶8At this stage, Mr. Ghosh, learned counsel for the petitioners submits that in fact, there are 5(five) witnesses and the affidavit-in-evidence of 3 witnesses have already been filed before the learned Civil Judge, Bongaigaon and in view of above, it is provided that the learned Civil Judge, Bongaigaon, shall take the same on record and thereafter, proceed to hear the matter in accordance with law.

¶9In terms of above, the petition stands disposed of. Comparing Assistant Sd/- Robin Phukan JUDGE

PageoNo.#o1/4 GAHC010234742022 ooooooo undefined ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oCRP(IO)/149/2022ooooooo oo oPRIYANATHoSAHAoANDo2oORS. S/O-oLATEoMOTILALoSAHA oR/O-oSALBAGAN oWARDoNO.o12 oNORTHoBONGAIGAON oP.O. oP.S.oANDoDIST.oBONGAIGAON oASSAM oPIN-o783380. 2:oBIJIToKUMARoSAHA S/O-oLATEoMOTILALoSAHA oR/O-oSALBAGAN oWARDoNO.o12 oNORTHoBONGAIGAON oP.O. oP.S.oANDoDIST.oBONGAIGAON oASSAM oPIN-o783380. o3:oSANJIToKUMARoSAHA S/O-oLATEoMOTILALoSAHA oR/O-oSALBAGAN oWARDoNO.o12 oNORTHoBONGAIGAON oP.O. oP.S.oANDoDIST.oBONGAIGAON oASSAM oPIN-o783380. oVERSUS ONoTHEoDEATHoOFoTUSHARoKANTIoSAHAoHISoLEGALoHEIRS Page No.# 2/4 S/O- LATE MONINDRA KUMAR SAHA R/O- PLOT NO. 05 BLOCK-B LAKE TOWN P.O. AND P.S. LAKE TOWN DISTRICT- NORTH 24 PARGANAS KOLKATA-700089(W.B.). 1.1:KAUSHIK SAHA S/O - LATE TUSHAR KANTI SAHA R/O- PLOT NO. 05 BLOCK-B LAKE TOWN P.O. AND P.S. LAKE TOWN DISTRICT- NORTH 24 PARGANAS KOLKATA-700089(W.B.). 1.2:ASHISH SAHA S/O - LATE TUSHAR KANTI SAHA BOTH ARE R/O- PLOT NO. 05 BLOCK-B LAKE TOWN P.O. AND P.S. LAKE TOWN DISTRICT- NORTH 24 PARGANAS KOLKATA-700089(W.B.). 2:SAJJIT SAHA S/O- LATE HIRALAL SAHA R/O- WARD NO. 12 SALBAGAN NORTH BONGAIGAON P.O. P.S. AND DIST. BONGAIGAON ASSAM, PIN- 783380. ------------ Advocate for : MR. S K GHOSH Advocate for : MS R SAHA (r-1 2) appearing for ON THE DEATH OF TUSHAR KANTI SAHA HIS LEGAL HEIRS BEFORE HON'BLE MR. JUSTICE ROBIN PHUKAN