Tamalika Mazumder & Ors vs Indrani Dey & Anr
2022 Latest Caselaw 5090 Cal

04.08.2022 Item No.1 Ct. No.7 CHC (disposed of)

C.O.1984 of 2022

Tamalika Mazumder & ors.

Vs.

Indrani Dey & anr.

Mr. Sabyasachi Mondal, Mr. Sayan Mukherjee ...for the petitioners

Mr. Apurba Kr. Ghosh, Mr. Rudranil Ghosh, Ms. Annayesa Chakraborty ...for the opposite party no.1

The petitioners assail order dated 18th June,

2022,passed by learned Civil Judge (Junior Division),

5th Court, Howrah, in Misc. Case No.17 of 1995, arising

out Title Execution Case No.26 of 1991, rejecting the

petition filed by the petitioners under Section 32 of the

Civil Procedure Code.

Admittedly, petitioners are the judgment-debtors,

and petitioners being judgment-debtors filed instant

Misc.Case referred above under Section 47 C.P.C. in

the year 1995.

Learned advocate appearing for the petitioners

submits that evidence of private witness being P.W.2 is

necessary in this case to establish the stand or

averments made in application under Section 47 of

C.P.C.

It is also contended by the petitioners that since

the witness even after receiving summons declined to

ensure his appearance, an application under Section

32 of the C.P.C. was filed thereafter, and it was

rejected by the court below by the order impugned. The

rejection of prayer under Section 32 of the C.P.C.,

according to petitioners, is illegal, and it has been so

done mechanically without adhering to the facts and

circumstances involved in this case.

Upon receiving copy of the application, Mr. Ghosh,

learned advocate appearing for the opposite party no.1

submits that the opposite party no.1 is the decree-

holder, who was favoured with the decree in the year

1991. The first appeal preferred, thereafter, failed to

disturb the decision of the trial court.

It is contended by the learned advocate for the

opposite party no.1 that evidence of P.W.1 was

concluded on 3rd May, 2008, and in this long gap of

almost more than 12 years, the petitioners have not

been able to examine their required witness, upon

taking required steps therefor, well in advance. The

entire exercise undertaken by the petitioners is dilatory

one, and harrasive also, just to frustrate the decree

granted in eviction suit, learned advocate appearing for

the opposite party no.1 argues.

Having considered the submission of both sides, it

appears that a private witness has been sought to be

examined in this case as P.W.2. The scheme to

examine witnesses required for the decision of

application under Section 47 C.P.C. perhaps was

contemplated, when the application under Section 47

C.P.C. was filed in the year 1995. Therefore, it is well

within the knowledge of the petitioners how many

witnesses, the petitioners have, who are required to be

examined in this case after the evidence of P.W.1 was

concluded on 3rd May, 2008, as it is evident from the

impugned order. Sufficient time thereafter was pssed

without any justified reasons. But application under

Section 47 C.P.C. cannot be attempted to be rendered

as a never ending process, and it cannot be continued

endlessly. However, petitioners are further given an

opportunity to examine their witness or witnesses if

there be any within fortnight from the date of this

order, failing which, the court below will be free to

dispose of Misc.Case No.17 of 1995 under Section 47

C.P.C. in accordance with the provision of the law,

without extending any further latitude to the

petitioners.

The impugned order is set aside directing the court

below to fix a suitable date within two (02) week from

this date enabling the petitioners/judgment-debtors to

adduce their witness or witnesses as a special chance,

otherwise, the court may proceed with the case in the

manner as already mentioned hereinabove.

This Court reposes trust and confidence upon the

court below that pending Misc.Case referred

hereinabove may be disposed of expeditiously as

possible, preferably within a period of three (03) weeks

from the date of communication of this order,

including the date of examination of witnesses, to be

made by petitioners/judgment-debtors, if any, as per

order mentioned hereinabove.

With this observation/direction, the revisional

application stands disposed of.

Petitioners are directed to make communication of

this order to the learned court below.

Urgent certified photostat copy of this order, if

applied for, be given to the parties as expeditiously as

possible on compliance of all necessary formalities.

(Subhasis Dasgupta, J.)