On Death of Soid Ali Mondal His Legal Heirs Jalekha Khatun and 32 Ors v. Purnima Devi and 16 Ors

ORDER Date : 25.01.2023

Heard Ms. M. Sahu, learned counsel for the petitioner. Also heard Mr.A. C. Sarma, learned Senior Counsel assisted by Mr. N. Brahma learned counsel for the respondent Nos.1 and 6 and Ms. U. Das, learned counsel for respondent Nos.3,4 and 5.

¶2The present revision petition is filed assailing the order dated 21.10.2017 passed by the learned trial court below whereby on the failure of plaintiff to issue summons to official witnesses, the evidence of plaintiff was closed.

¶3By the said order, the prayer of plaintiff to allow to exhibit certain documents, which was left to be exhibited was also rejected.

¶4The said petition was dismissed on the ground that the petitioner had failed to disclose, why such documents filed on that day could not be filed earlier inasmuch as the plaintiff side had already filed the examination-in-chief of his witnesses and they were already cross examined and discharged and date Page No.# 8/10 was fixed for official witness.

¶5Learned counsel for the petitioner submits that to arrive at a just decision by learned trial court below, the petitioner ought to have been granted an opportunity to issue summon to the official witness inasmuch as to bring on record the exhibit which are necessary for proper adjudication of the case. However, learned court below by ignoring settled proposition of law that technicalities should not obstruct substantive justice, passed the impugned order. Accordingly, the learned counsel for the petitioner submits that the learned Court below had failed to exercise its jurisdiction properly resulting in failure of justice. Therefore, the learned counsel for the petitioner prays that plaintiff may be granted a last opportunity to issue summon and to bring document on record by way of an additional witness.

¶6Per contra Mr. A. C. Sarma, learned Senior Counsel submits that the petitioner as plaintiff has been very negligent all throughout inasmuch as it is the bounden duty of the plaintiff to take proper steps for bringing the official witnesses to the witness box. However on failure of the plaintiff to perform his duty, the learned court below has rightly rejected his prayer.

¶7Coming to the issue of bringing documents on record, Mr. Sarma, learned Senior Counsel submits that a document cannot be allowed to be brought on record on mere asking inasmuch as there are provisions of law, which enables the parties to pray before the court to bring on documents on record, which are necessary for the proper determination of the issue before the trial court. However, the petitioner has casually filed an application stating that some documents are required to be filed. However no explanation whatsoever has been given in the said petition why such documents are necessary and why even after leading more than three witnesses, the petitioner had not Page No.# 9/10 brought such document on record and therefore, the learned court below had rightly rejected such application, submits Mr. Sarma, learned Senior Counsel.

¶8This court has given anxious consideration to the arguments advanced by the learned counsel for the parties. So far relating to the issue of the issuance of summons to the official witnesses, this court is of the considered opinion that the petitioner was negligent in not taking steps to bring such official witnesses to the witness box. However, at the same time, for proper and just determination of the issue before the learned trial court the examination of the official witnesses are necessary, and the same would help both the parties and the learned court to come into a just decision and therefore in the considered opinion of this court and for ends of justice and to avoid miscarriage of justice, an opportunity should be granted to the petitioner to take necessary steps for issuance of summons to bring official witnesses to the witness box. Accordingly, it is directed that the present petitioner be given a chance to bring official witnesses and to take steps for doing the needful. Accordingly the learned trial court below shall fix a date for appearance of the witnesses by giving a chance to the petitioner to take necessary steps. In the event, the petitioner fails to take such steps, the suit shall proceed from the stage, as on the date of passing of the impugned order dated 1.12.2016.The plaintiff shall be allowed to take such steps subject to payment of cost of Rs.2,000/- to be paid to the defendants

¶9Coming to the next issue of bringing new documents on record, this court finds force in argument of Mr. Sarma, learned Senior Counsel that the plaintiff has not given any explanation whatsoever in seeking to bring the documents on record through additional evidence after closure of their witnesses. Therefore, this court is not inclined to interfere with the said order. However it is provided Page No.# 10/10 that if the petitioner files any appropriate application permitted under the law, before the learned court below for the aforesaid purpose, the court may still consider such application and pass necessary order without being influenced by any of the observation made in this order and after giving an opportunity to the defendants to object such petition. However, it is made further clear that the petitioner shall be at liberty to file such application within a period of five weeks from today and if such application is not filed within a period of five weeks from today, the same may not be entertained by the learned Court below.

¶10With the aforesaid terms, this revision petition stands disposed of.

¶11The parties shall appear before the learned trial Court on 20.2.2023, on which date the learned court below shall pass necessary order in terms of the present order. JUDGE Comparing Assistant

PageoNo.#o1/10 GAHC010271312017 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oCRP(IO)/42/2017o ONoDEATHoOFoSOIDoALIoMONDALoHISoLEGALoHEIRSoJALEKHAoKHATUNo ando32oORS.o W/O.oSOIDoALIoMONDAL, 2:oJALALoMONDAL o 3:oFIROZoMONDAL o 4:oMINALoMONDAL o 5:oSALEMAoKHATUN o 6:oALEMAoKHATUN o 7:oFAZILAoKHATUN o 8:oMONIZAoKHATUN oNO.o2oTOo8oAREoALLoSONSoANDoDAUGHTERSoOFoLT.oSOIDoALIoMONDAL 9:oONoDEATHoOFoABDULoMONDALoHISoLEGALoHEIRS Page No.# 2/10 SURZO BEWA W/O. LT. ABDUL MONDAL 10: INSAN ALI MONDAL 11: USUF ALI KHAN @ USUF ALI MONDAL 12: KALACHAN MONDAL MINOR 13: AMIRAN KHATUN NO. 12 IS A MINOR BEING REPRESENTED BY HIS MOTHER SURZO BEWA NOS. 10 TO 13 ARE ALL SONS AND DAUGHTERS OF LT. ABDUL MONDAL NOS. 1 TO 13 ARE ALL R/O. VILL. HATIPOTA PART-II PIN-783348 14: AYMOL BIBI W/O. SABOR UDDIN R/O. VILL. PASHOWARKHAL PIN-783348. 15: TARA BANU W/O. GAZI SHEIKH R/O. VILL. KOIMARI PIN-783348. 16: ASER UDDIN MONDAL @ ASHIRUDDIN MONDAL Page No.# 3/10 17: NASER MONDAL 18: KASHEM MONDAL 19: KALAM MONDAL 20: NURUDDIN MONDAL NOS. 16 TO 20 ARE SONS OF LT. BHOSHA MONDAL 21: AZIOR MONDAL 22: MOZIBAR MONDAL 23: ANOWAR MONDAL 24: MONOWAR MONDAL NOS. 21 TO 24 ARE THE SONS OF LT. SALIM UDDIN MONDAL 25: MUSA MONDAL 26: MOKBUL MONDAL NOS. 25 and 26 ARE SONS OF LT. HASHEM ALI MONDAL 27: SABAT ALI MONDAL Page No.# 4/10 28: SURUT ZAMAL MONDAL 29: SABIOR MONDAL 30: NAWSHAD MONDAL 31: AZIT MONDAL 32: TAZEL MONDAL NO. 27 TO 32 ARE ALL SONS OF LT. HASEN ALI MONDAL 33: ABBAS ALI MONDAL SON OF LT. WAHED ALI MONDAL NOS. 18 TO 35 ARE ALL R/O. VILL. HATIPOTA PART-II PIN-783348 VERSUS PURNIMA DEVI and 16 ORS. W/O. LT. BENU CHOUDHURY, 2:SHRI BIPLAB CHOUDHURY S/O. LT. BENU CHOUDHURY BOTH ARE RESIDETS OF WARD NO. 14 BILASIPARA TOWN PIN.- 783348. 3:THE ASSTT. SETTLEMENT OFFICER Page No.# 5/10 BILASIPARA PIN-783348. 4:THE SETTLEMENT OFFICER DHUBRI 5:THE STATE OF ASSAM TO BE REP. BY THE COLLECTOR DHUBRI. 6:OMELA KHATUN W/O. MANSER SHEIKH R/O. VILL. KATHALDI PART-I PIN-783348. 7:NILARANI KHATUN D/O. LT. SALIM UDDIN W/O. MOKSED ALI AKAND 8:MONOWARA KHATUN W/O. LT. BOSA MONDAL 9:PINZIRA KHATUN W/O. BAKKAR ALI 10:MOMTAZ BEGUM W/O. FAZAR SHEIKH NOS. 7 TO 10 ARE ALL R/O. VILL. HATIPOTA PART-II PIN.-783348. Page No.# 6/10 11:ABEDIA BIBI D/O. LT. AHED ALI 12:OFIDA BIBI W/O. SABAN ALI NOS. 11 and 12 ARE R/O. VILL. HATIPOTA PART-I PIN-783348. 13:ALEMA BIBI W/O. MANNAN SHEIKH R/O. VILL. ALOMGANJ PART IX P.O. ALOMGANJ P.S. GAURIPUR PIN.- 783339. 14:SAKINA KHATUN W/O. OSMAN ALI R/O. VILL. BANIAPARA PIN- 783348. 15:FARIDA BIBI D/O. HASHEM ALI MONDAL 16:HALIMA BIBI W/O. MANNAF ALI NOS. 16 and 17 ARE R/O. VILL. BOCHIRCHAR PIN-783348. Page No.# 7/10 17:OMELA BIBI W/O. MUHURI SHEIKH R/O. VILL. KATHALDHICHAR PIN.-783348 Advocate for the Petitioner : MS.F AHMED Advocate for the Respondent : MR.A C SARMA Sr. Adv., R- 1and2 BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY