Calcutta High Court
Atul Bazaz vs Rani Goenka on 3 September, 2024
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
BEFORE:
HON'BLE JUSTICE RAJA BASU CHOWDHURY
IA NO.GA/2/2022
RVWO/14/2019
IA NO.1/2019
IN THE GOODS OF:
SITA DEVI BAZAZ (DECEASED)
AND
ATUL BAZAZ
VERSUS
RANI GOENKA
For the caveatrix/defendant : Mr. Sarosij Dasgupta, Adv.
Ms. Afreen Begum, Adv.
For the respondent/plaintiff : Mr. Rupak Ghosh, Adv.
Mr. Ayan Dutta, Adv.
Mr. Pradip Sumar Sarawagi, Adv.
Heard on : 30.08.2024 & 03.09.2024.
Judgment on : 3rd September, 2024.
RAJA BASU CHOWDHURY, J:
1. The instant review petition has been filed, inter alia, praying for review of
the order dated 6th February, 2018 passed by a Coordinate Bench of this
Court. The review was accompanied by an application under Section 5 of
the Limitation Act, 1963. The review was dismissed for default on 11th
April, 2022, the application under Section 5 of the Limitation Act, 1963,
accordingly, also stood dismissed. Since then, an application being IA No.
GA 2/2022 has been filed for recall of the order dated 11th April, 2022.
This Court has taken up hearing of not only the application for recall of the
order dated 11th April, 2022, but application under Section 5 of the
Limitation Act, 1963 and the review has also been heard on merits.
2. To consider the aforesaid matter, it is necessary to briefly indicate the
facts.
3. The present proceeding arose out of and in connection with an application
for grant of probate of the last will and testament dated 8th December,
2005 executed by Sita Devi Bazaz, a Hindu inhabitant governed by
Mitakhsara School of Hindu Law (hereinafter referred to as the "deceased").
At the time of death of the deceased, she had left behind and was survived
by Raj Kumar Bazaz (son) and Rani Goenka (daughter). The review
applicant is the daughter of the deceased, while the propounder is the
grandson (son's son) of the deceased.
4. Records reveal that the review applicant had not only filed a caveat but had
also filed an affidavit in support thereof. By the order dated 2nd December,
2014, the probate proceeding was converted to a contentious cause and is
being tried as a suit. The propounder/plaintiff had examined himself as the
first witness. On 15th November, 2017, since, the review
applicant/defendant was not represented, a Coordinate Bench of this
Court after recording the deposition of the first witness namely Atul Bazaz
stands concluded, had permitted the plaintiff to examine the second
witness namely Archana Bazaz. On the said date itself, in absence of the
defendant, the examination of the second witness namely Archana Bazaz
was closed and the Coordinate Bench of this Court recorded that no one is
present to cross-examine the witness namely Archana Bazaz on behalf of
the caveatrix/defendant and the evidence is closed and the matter was
directed to appear for argument on 5th December, 2017.
5. Before the arguments could commence, the defendant had filed an
application for recall of the order dated 15th November, 2017. The prayers
made in the Notice of Motion taken out on behalf of the defendant on 12 th
January, 2018 are extracted hereinbelow: -
a. Recalling the order dated 15.11.2017 passed by His Lordship
The Hon'ble Justice Sahidullah Munshi of the Hon'ble High
Court;
b. Allow the petitioner to cross-examine the plaintiff's witnesses;
c. Ad interim order in terms of prayer (a) above;
d. Such further and/or other order or orders be passed, direction or
directions be given as Your Lordships may deem fit and proper.
6. Records reveal that on 6th February, 2018, although, the plaintiff was not
represented, the Coordinate Bench of this Court by accepting the
explanation given by the defendant and by observing that the defendant
was sufficiently compelled not to appear before the Court on 15th
November, 2017, was pleased to recall the order dated 15th November,
2017 with a further direction on Archana Bazaz to appear on 9th March,
2018 at 11.30 a.m.
7. Archana Bazaz was thereafter cross-examined by the defendant's advocate.
After closure of her cross-examination, the defendant having found that the
first witness's cross-examination was not complete had filed an application
being GA No.62 of 2019, inter alia, praying for modification of the order
dated 15th November, 2017. Such application was filed on 7th January,
2019. Subsequently on 26th February, 2019, the defendant obtained leave
to withdraw the same with liberty to file an appropriate application on the
self-same cause of action. According to the defendant, the aforesaid
withdrawal was necessitated since, the defendant was in effect seeking
review of the order dated 15th November, 2017, which was not permissible
in an application for modification being GA No.62 of 2019.
8. Pursuant to the aforesaid liberty, the review had been filed accompanied by
an application under Section 5 of the Limitation Act, 1963, being I.A
No.G.A/1/2022. Incidentally though, an affidavit in opposition was filed,
however, on 11th April, 2022 since the defendant was not represented in
Court, the Coordinate Bench of this Court was, inter alia, pleased to
dismiss the cause for default.
9. The defendant had thereafter, applied for recall of the above order by filing
the recalling application being IA No G.A/2/2022. Since then, not only the
review but the restoration application being IA NO.GA/2/2022 has come
up for consideration. This Court has heard the matter extensively and
having found the explanation given by the defendant as regards her non-
appearance on 11th April, 2022 to be sufficient directs that the order dated
11th April, 2022 be recalled and consequentially directs the review along
with the application under Section 5 of the Limitation Act, 1963 to be
restored to their respective original file and number.
10. Mr. Dasgupta, learned advocate appearing on behalf of the defendant
would submit that the order dated 15th November, 2017 was recalled by an
order dated 6th February, 2018. According to him, once, the order dated
15th November, 2017 was recalled, it consequentially followed that the
direction to close the deposition of the plaintiff's first witness was also
recalled along with the order directing closure of evidence of the plaintiff's
second witness. He submits that the Court by oversight had not included
the name of the plaintiff's first witness in the order dated 6 th February,
2018 and this is a mistake apparent on the face of the record. It is still
further submitted that the defendant's advocate had duly cross-examined
the plaintiff's second witness pursuant to the direction passed by the
Coordinate Bench on 6th February, 2018 and on closure of the cross-
examination of the plaintiff's second witness had taken out an application
seeking modification of the earlier order dated 6th February, 2018.
According to Mr. Dasgupta, since, the relief sought for by the defendant
was not permissible by way of a modification application, such application
was withdrawn with liberty to apply afresh on the self-same ground, and in
terms of the liberty granted by the Coordinate Bench of this Court on 26 th
February, 2019, a review had been filed. According to him, since, the
defendant had been bona fide proceeding with the modification application,
there had been delay in filing the review. He prays that the delay in filing
the review be condoned. In support of his contention that it was also open
to the Court to permit recall of a witness, he has relied on the judgment
delivered by the Hon'ble Supreme Court in the case of K.K. Velusamy v.
N. Palanisamy., reported in (2011) 11 SCC 275.
11. It is submitted, in the facts noted hereinabove, this Court may be pleased
to review its earlier order dated 6th February, 2018 and permit the
defendant to cross-examine the plaintiff's first witness whose cross-
examination was incidentally also closed along with the plaintiff's second
witness on 15th November, 2017.
12. Per contra, Mr. Ghosh, learned advocate representing the
propunder/plaintiff would submit, that the defendant is only interested to
delay the proceeding. By placing before this Court a compilation of relevant
documents along with the list of dates, which is taken on record, he
submits that although, the examination of Atul Bazaz had commenced on
18th August, 2017 and continued on 21st September, 2017, ultimately, the
same was closed on 15th November, 2017, since, on repeated occasions the
defendant's advocate chose not to appear. As such, on 15th November,
2017, when the defendant's advocate did not appear, the Coordinate Bench
of this Court not only closed the deposition of Atul Bazaz but also
permitted the examination in chief of Archana Bazaz to be proceeded with.
After conclusion of examination in chief of Archana Bazaz, since none was
present for cross-examining her, the witness action on behalf of the
plaintiff was closed. He submits that although, the Coordinate Bench of
this Court by an order dated 6th February, 2018 had recalled the order
dated 15th November, 2017, the Court had specifically permitted the
defendant to cross-examine the plaintiff's second witness and not the first
witness. According to him, the defendant accepted the said order, had
proceeded with the cross-examination of the plaintiff's second witness and,
only upon conclusion of such cross-examination, the defendant filed the
application for modification. By placing before this Court, the application
for recall of the order dated 15th November, 2017 filed by the defendant
being GA/149/2018, he submits that despite the fact that the defendant
had sought for recall of both the witnesses, the Coordinate Bench of this
Court expressly permitted recall of only one witness, namely Archana
Bazaz. He submits that in the facts noted hereinabove, the review should
fail and the parties be permitted to proceed further, as the next date is
fixed for arguments.
13. Having heard the learned advocates appearing for the respective parties,
and considering the materials on record, as also the explanation given by
the defendant for the delay in filing the review, I find the delay to be
sufficiently explained, accordingly, the delay in filing the review is
condoned. IA No GA 1/2022 (GA 1207 of 2019) is accordingly allowed and
the review is considered on merit.
14. Although, elaborate arguments have been advanced in this matter, I find
that the only point that requires consideration is, the closure of witness
action of the plaintiff on 15th November, 2017 and the order recalling the
direction dated 15th November, 2017. To morefully appreciate the above,
the order dated 15th November, 2017 is extracted hereinbelow:
"No one is present to cross-examine the witness namely,
Archana Bazaz on behalf of the caveatrix. Evidence is closed.
Let this matter appear for argument on 5th December, 2017."
15. From the aforesaid order, it would be apparent that on 15th November
2017, the evidence of the plaintiff's second witness Archana Bazaz was
closed. I find that the evidence of the plaintiff's second witness was closed
as none was present on behalf of the defendant to cross-examine the
witness namely, Archana Bazaz. Although, on the aforesaid date the
evidence of Atul Bazaz was also closed, such fact is, however, not recorded
in the order. Be that as it may, the fact remains that on the said date the
evidence of both witnesses, Atul Bazaz and Archana Bazaz were closed.
This Court notices that the defendant had filed an application for recall of
the order dated 15th November, 2017. From the prayers of the notice of
motion, which have been extracted hereinabove, it would transpire that the
defendant had clearly sought for recall of both the witnesses of the plaintiff.
16. Incidentally, the said application filed on behalf of the defendant was
allowed ex parte by an order dated 6th February, 2018. The consideration
for allowing such application was the explanation given by the defendant in
paragraph 6 of the said application. It appears that the Coordinate Bench
on being satisfied with regard to such explanation and by accepting the
same had recalled the order dated 15th November, 2017 to meet the ends of
justice. Upto this stage, there is no dispute, but in the aforesaid order,
since the Coordinate Bench had directed only one of the witnesses namely,
Archana Bazaz to appear on 9th March, 2018 at 11.30 A.M., a difficulty has
arisen and it is necessary to ascertain whether the order dated 6th
February, 2018 was limited to recall of only one witness or both the
witnesses and whether there is an error apparent on the face of the record,
which had prompted the defendant to apply before this Court.
17. It must be noted that ordinarily, when an order is passed by a Court, the
same is final unless, the Court considers the same is required to be recalled
either to meet the ends of justice or for any other sufficient reason. In the
instant case, it may be noted that on 15th November, 2017, the evidence of
both the witnesses of the plaintiff were closed. Unfortunately, in the order
dated 15th November, 2017 it had gone down as "No one is present to cross-
examine the witness, namely Archana Bazaz on behalf of the caveatrix.
Evidence is closed." Perhaps it is for this reason that the Coordinate Bench
was prompted while recalling the order dated 15th November, 2017, by its
order dated 6th February, 2018 to direct the witness namely Archana Bazaz
to appear on 9th March, 2018.
18. I may note here, as reiterated earlier, that the Court seldom interferes with
an order which is final. However, if the Court finds that the order was
passed under a mistake and it would not have exercised the jurisdiction in
a particular manner but for the erroneous assumption which, in fact, did
not exist and its perpetration shall result in miscarriage of justice, then it
cannot on any principle be precluded from rectifying the error. Admittedly,
on 15th November 2017, evidence of both the witnesses was closed. Once,
the Court recalled the order dated 15th November, 2017, in my view, it
obviously followed that the direction was not confined to only one witness.
The direction only on Archana Bazaz to appear on 9th March, 2018 appears
to be an error apparent on the face of the record. However, simply because
there is an error, the same may not permit rectification/review. In this case,
I may note that if the defendant is not permitted to cross-examine the
plaintiff's first witness, the same would cause injustice because the
foundation for recall of the first witness lies in the foundation for recall of
the second witness. Although, I have been able to ascertain from the
submissions made by the parties that the suit has advanced further and is
at the stage of argument, however, taking note of the facts as narrated
hereinabove, I am of the view that the order dated 6th February, 2018
requires to be reviewed. Accordingly, I direct the plaintiff's first witness to
appear before the Court for cross-examination on 10th September, 2024,
subject to the convenience of the Learned Judge taking up hearing of the
matter.
19. Before parting, I must record an undertaking given by Mr. Dasgupta on
behalf of the defendant that the cross examination of the plaintiff's first
witness would not be unnecessarily prolonged and attempt shall be made to
conclude the cross examination on a particular day or immediately on the
next date, or as may be permitted by the Court.
20. GA/1/2019 (Old GA/1207/2019) and IA NO.GA 2/2022 are allowed and
RVWO/14/2019 is disposed of.
(RAJA BASU CHOWDHURY, J.)
akg/sm
