Karabi Das v. Dharitri Medhi and Anr

O R D E R

¶1205. 2023 Heard Mr. P Sarma, learned counsel for the petitioner. Also heard Mr. B Kaushik, learned counsel for the respondent No.1.

¶2The respondent No. 2 being a proforma defendant in the suit, in the considered opinion of this court, is not necessary for determination of the present litigation inasmuch as it is a dispute between the plaintiff and defendant regarding leading of evidence by the defendant and therefore this will not affect or prejudice any right of the respondent No. 2, even if the present petition is allowed.

¶3By the present petition, the petitioner has challenged the legality and validity of the order dated 20.09.2022 passed in TS No. 141/2016 by the learned Civil Judge No. 3, Kamrup, Guwahati whereby the prayer of the petitioner, who is the defendant No. 1, for adjournment was rejected on the ground that the defendant No. 1 had already taken many adjournments and suit is pending since 2016.

¶4The respondent plaintiff instituted TS No. 141/2016 for declaration, damages and for compensation. During the proceeding of the suit, plaintiff laid its evidence and witnesses were cross-examined by defendant No. 1. Page No.# 3/4

¶5The defendant was to file evidence in chief of her witnesses. However, as many adjournments were taken earlier and considering the fact that suit was pending since 2016 the learned court below by its order dated 20.09.2022 impugned in the present revision rejected such a prayer for adjournment to enable the defendant No. 1 to file DWs.

¶6The learned counsel for the petitioner submits that she may be granted a last chance to file the evidence of her witness otherwise she will be prejudiced.

¶7Mr. Kaushik, learned counsel for the respondent No. 1 submits that suit was pending since 2016 and the defendant has been taking time on different pretext since last eight months to file evidence and therefore, the impugned order has been passed. He further submits that in the aforesaid background the impugned order cannot be said to be illegal.

¶8Heard the learned counsel for the parties. This court is in agreement with the argument advanced by Mr. Kaushik. Accordingly, this court cannot find fault with the order passed by the learned trial court in the given fact of the present case. However, considering the undertaking that the defendant shall file their evidences on affidavit if a last chance is given and no further adjournment shall be sought, this court is inclined to grant a last chance to the petitioner to file her DWs to avoid miscarriage of justice. This court is also of the view that right to defend a suit is a valuable right and if such prayer is allowed the plaintiff will not be seriously prejudiced inasmuch as the plaintiff will have right to cross-examine the witnesses. Only Page No.# 4/4 anxiety of the plaintiff is that suit has been prolonged for this kind of adjournment by the defendant.

¶9Therefore, this court is of the view that ends of justice would be met if the defendant is given a chance to file the evidence-in-affidavit of her witnesses. At the same time, the plaintiff should also be compensated, in the considered opinion of this court, for this unnecessary litigation before this court.

¶10Accordingly, it is provided that subject to payment of Rs. 5,000/- as cost to be paid by the defendant No. 1 and to be deposited before learned trial court below, the learned trial court shall allow the defendant No. 1 to file the evidence on affidavit on or before

24.07.2023. On such affidavit being filed on or before the next date fixed, the learned trial court shall proceed with the case by fixing date for cross-examination as per its own convenience. However, it is made clear that if the aforesaid cost is not deposited on or before the aforesaid date and the evidence of all the witnesses are not filed on or before the date fixed, the impugned order shall revive without any further reference of this court.

¶11Revision petition stands disposed of accordingly. JUDGE Comparing Assistant

PageoNo.#o1/4 GAHC010266542022 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oCRP(IO)/320/2022o KARABIoDASo WIFEoOFoSRIoUTPALoCHANDRAoDAS,o RESIDENToOFoHOUSEoNO.o5,oSANTIPURoCOLLEGEoROAD,o HILLSIDE,o2NDoFLOOR,o SANTIPUR,oGUWAHATI-o781009,o DISTRICT-oKAMRUP(M),oASSAM. VERSUSo DHARITRIoMEDHIoANDoANRo WIFEoOFoSRIoTAPANoMEDHI,o RESIDENToOFoMALIGAON,oGATEoNO.o3,o QUARTERoNO.o205/A,o P.O.oANDoP.S.-oJALUKBARI,o GUWAHATI-o781011. 2:DR.oBIJOYoKUMARoSHARMA oSONoOFoSRIoNARAYANoPRASADoSHARMA o RESIDENToOFoKAILASHPUR o NEARoPRASHIDAoMAHAoMANDIR o ODALBAKRA oP.S.-oDISPUR o P.O.-oGUWAHATI-o781034 o DISTRICT-oKAMRUP(M) oASSAMo AdvocateoforotheoPetitionerooooo:oMR.oOoPoBHATIo Page No.# 2/4 Advocate for the Respondent : MR B KAUSHIK BEFORE THE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY