Debasish Roy v. Rupak Paul and 2 Ors

ORDER Date : 30.08.2024 Heard Ms. S. Todi, learned counsel for the applicant. Also heard Mr. D. Chakraborty, learned counsel for the opposite party no. 1 and Mr. A. Bhattacharya, learned counsel for the opposite party nos. 2 and 3.

¶2This is an application under Section 151 CPC seeking direction for sending back the case records of Title Suit No. 133/2010 and Title Appeal No. 07/2022 which is tagged along with the accompanying Regular Second Appeal, i.e. RSA No. 128/2024 on the ground that certain documents available in the said case records which is required to be filed as evidence in affidavit in another Title Suit being Title Suit No. 66/2022.

¶3Ms. S. Todi, learned counsel for the applicant submits that the case records are necessary for preparing the evidence in affidavit in Title Suit No. 66/2022 in which eviction is sought against the opposite party no. 1.

¶4Mr. D. Chakraborty, learned counsel for the opposite party no. 1 has strongly opposed the said prayer and submits that the prayer sought cannot be granted in law. He further draws the attention of this Court to Section 65 of the Indian Evidence Act, 1872, which provides taking of secondary evidence relating to documents in certain cases.

¶5I have given my prudent consideration to the arguments made by both the parties and perused the averments made in the said Page No.# 3/7 application.

¶6It appears that the opposite party /plaintiff, had instituted a Title Suit which was registered as T.S. No. 133/2010 before the Learned Munsiff No.1, Cachar Silchar, wherein it was alleged that the applicant had engaged in illegal action in order to oust the opposite party from the suit premises.

¶7It further appears that the applicant had entered a tenancy agreement with the partnership firm, changed the ownership structure of the firm that originally owned the suit premises.

¶8Resultantly the opposite party filed a suit seeking a declaration affirming the tenancy rights of the opposite party upon the suit premise.

¶9It further appears that the applicant herein as defendant filed written statement.

¶10It further appears that during the pendency of the said proceeding before the Learned Munsiff No.1, Cachar Silchar, the applicant was permitted to file an additional written statement along with a counter-claim in Title Suit bearing No. T.S. No. 133/2010.

¶11It further appears that the opposite party being aggrieved by the same, assailed the said order by preferring a Civil Revision Petition, registered as CRP(I/O) 57/2013, before the Hon'ble Gauhati High Court, and vide its order dated 11.04.2014, the Hon'ble Gauhati High Court was pleased to set aside the said order.

¶12It further appears that the Learned Munsiff Court No. 1, Page No.# 4/7 Cachar, Silchar, Vide its judgment and order dated 18.12.2021, was pleased to dismiss the said suit.

¶13It further appears that that the opposite party being dissatisfied by the judgment and order dated 18.12.2021 passed by the Learned Munsiff No. 1, Cachar, Silchar in Title Suit No. 133/2010, filed an appeal registered as T.A. No. 7/2022 before the Learned Civil Judge (Senior Division) No. 1, Cachar, Silchar wherein the Learned Civil Judge (Senior Division), by judgment and order dated 12.03.2024, dismissed the appeal and upheld the judgment and order dated 18.11.2021 passed by the Learned Munsiff No. 1, Cachar, Silchar.

¶14It further appears that the opposite party being highly aggrieved by the judgment and order dated 12.03.2024 passed by the Learned Civil Judge (Senior Division) No. 1, Cachar, Silchar in T.A. No. 7/2022, filed a Civil Revision Petition, registered as CRP 51/2024, before the Hon'ble Gauhati High Court.

¶15However, this Court, vide its judgment and order dated

24.06.2023, granted liberty to the opposite party to prefer a Regular Second Appeal against the judgment and order dated 12.03.2024 passed by the Learned Civil Judge (Senior Division) No. 1, Cachar, Silchar in T.A. No. 7/2022 and further directed the registry to retain the case records received from the Lower Court for one month.

¶16It further appears that the opposite party, having been granted liberty to prefer a Regular Second Appeal against the judgment and order dated 12.03.2024 passed by the Leamed Civil Judge (Senior Division) No. 1, Cachar, Silchar in T.A. No. 7/2022, instituted the Page No.# 5/7 connected Regular Second Appeal (RSA) before the Hon'ble Gauhati High Court, registered as R.S.A No. 128/2024.

¶17Pertinent that upon hearing both the parties, this Hon'ble Court, vide order dated 22.07.2024, observed the following, which is quoted below for ease of reference: "List this matter after 4(four) weeks. Registry is directed to tag the LCR with this record in view of the above order passed in CRP No.51/2024"

¶18It further appears that meanwhile upon dismissal of Title Suit No. 133/2010 by the Learned Munsiff Court No.1, Cachar, Silchar, the applicant instituted a Title Suit, registered as T.S. No. 66/2022 before the Learned Munsiff No.1, Cachar, Silchar seeking eviction of the opposite party on the ground that the opposite party is a defaulter and that the applicant requires the suit premises for its personal use.

¶19Pertinent that this suit is currently pending adjudication before the Learned Munsiff No.1, Cachar, Silchar.

¶20It further appears that the Title Suit bearing No. 66/2022, which is currently pending before the Learned Munsiff No. 1, Cachar, Silchar, pertains to the eviction of the opposite party and that the suit is presently at the stage of evidence, with the next date fixed for the filing of evidence by the plaintiff being 31.08.2024.

¶21In this connection it is submitted by the learned counsel for Page No.# 6/7 the applicant that in order to enable the applicant to file its evidence by way of affidavit, it is crucial that the documents relied upon by the applicant be submitted in original form before the Learned Court below.

¶22It is pertinent to mention that the opposite party herein as plaintiff had filed Title Suit No. 133/2010 before the Learned Munsiff No. 1, Cachar, Silchar, in which the applicant was arrayed as a defendant. It is stated that in the said proceeding, the applicant filed its evidence by way of affidavit and relied upon certain original documents which also forms part of proceeding in Title Suit No. 66/2022, which is pending before the Learned Munsiff No. 1, Cachar, Silchar.

¶23As such, the ground on which the prayer for sending the case records to the Trial Court in respect of Title Suit No. 66/2022 is that in order to file the evidence by way of affidavit on the next date of listing of the said suit, the original documents which are currently tagged along with the accompanying Regular Second Appeal before this Court and forms part of the case records is required.

¶24However, it appears that no details of any documents have been provided in the Interlocutory Application.

¶25Be that as it may, the Code provides procedure for giving secondary evidence relating to documents.

¶26Hence there is no merit in the prayer sought in the Interlocutory Application and accordingly the Interlocutory Application stands rejected. Page No.# 7/7 Disposed of. JUDGE Comparing Assistant

PageoNo.#o1/7 GAHC010176372024 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oI.A.(Civil)/2573/2024o DEBASISHoROYo S/OoLATEoSRISHoCHANDRAoROY,o R/OoBILPAR,oDIST.-oCACHAR,oASSAM,oPIN-o788005. VERSUSo RUPAKoPAULoANDo2oORSo S/O-oLATEoRAKESHoCHANDRAoPAUL,oR/O-oPARKoROAD,o P.OoANDoP.S-oSILCHAR,oDIST-oCACHAR,oASSAM 2:M/SoSARADAMANIoSTORE oAoPARTNERSHIPoFIRMoHAVINGoITSoPRINCIPALoPLACEoOFoBUSINESSoATo CENTRALoROAD oP.O.oANDoP.S.-oSILCHAR oDULYoREP.oBYoITSoPARNERSoNAMELY-oSISIRoKUMARoROY. 3:ASHISHoKUMARoROY oS/OoLATEoSRISHoCHANDRAoROY oR/OoBILPAR oDIST.-oCACHAR oASSAM oPIN-o788005o AdvocateoforotheoPetitionerooooo:oMRoGoNoSAHEWALLA,oMSoKoSARMA,MRoHoKoSARMA,MS.oS.o TODIo AdvocateoforotheoRespondento:o,oo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo Page No.# 2/7 BEFORE HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI