Gauhati High Court
M/S. Dolaguri Tea Co. (P) Ltd vs M/S. Kathoni Tea Company Ltd on 5 August, 2022
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GAHC010178182018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/274/2018
M/S. DOLAGURI TEA CO. (P) LTD.
A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING
ITS REGD OFFICE AT 1 BRITISH INDIA STREET, 2ND FLOOR, KOLKATA- 69,
REP. BY ITS MANAGER AND AUTHORISED OFFICER SRI SANJAY JOSHI
AGED ABOUT 48 YEARS, S/O- SRI RB JOSHI, R/O- DOLAGURI TEA ESTATE,
UNDER P.O- LETEKUJAN, P.S AND DIST- GOLAGHAT, ASSAM
VERSUS
M/S. KATHONI TEA COMPANY LTD
A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING
ITS REGD OFFICE AT VILL- DHALAGURI BAGAN, UNDER P.O AND P.S-
GOLAGHAT UNDER MOUZA- MORONGI DIST- GOLAGHAT, ASSAM
Advocate for the Petitioner : MR G CHOUDHURY
Advocate for the Respondent : MR A DEY (R-1)
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 05.08.2022
Heard Mr. G. Choudhury, the learned counsel appearing on behalf of the
Petitioners and Mr. B. Sarma, the learned counsel appearing on behalf of the
Respondent.
2. This is an application under Article 227 of the Constitution of India
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challenging the order dated 23/07/2018 passed by the learned Civil Judge,
Golaghat in Title Suit No.6/2009.
3. The Court vide the impugned order dated 23/7/2018 rejected the prayer
for expunging the evidence of DW-1 Sri Nipul Saikia and also rejected the prayer
for permitting one Sanjoy Joshi to be examined as DW-1 on the ground that
there was no sufficient reasons in the said application.
4. It is the specific case of the Petitioners, who are the Defendants in the suit
that the Defendant No. 1 is a Company and Sri Nipul Saikia had submitted the
Examination-in-Chief as DW-1 in the capacity of Director of the Company.
Subsequent thereto, the said Nipul Saikia had resigned from the Board of
Directors and is no longer associated with the Company, for which the
Examination-in-Chief of the said Sri Nipul Saikia was required to be expunged. It
is also the further case of the Petitioners that at that relevant point of time, Sri
Sanjoy Joshi was the Director for whom leave was sought for to adduce his
evidence as the said Sri Sanjoy Joshi was one of the Directors of the Company.
5. The learned counsel for the Petitioners submits that the instant
proceedings have been pending for the last 4 years, the said Director has also
changed and now at present the Defendant would like to adduce the evidence
of one Dibyajyoti Sarma.
6. After perusal of the materials on record and taking into account the
judgment of the Supreme Court rendered in the case of Mange Ram Vs. Brij
Mohan reported in (1983) 4 SCC 36 and the provisions of Order XVI Rule 1A,
this Court is of the opinion that the ends of justice would be met if the
Defendant No. 1 is permitted to adduce the evidence of the said Dibyajyoti
Sarma provided that the Defendant No. 1 can produce the witness without the
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assistance of the Court. Taking into account that the suit is a long pending
matter, the Defendant No. 1 shall file the evidence on affidavit of the said
Dibyajyoti Sarma on the next date so fixed by this Court.
7. This Court vide an order dated 24/8/2018 passed in I.A.(C) No. 3071/2018
had stayed further proceedings of Title Suit No.06/2009 pending before the
Court of the Civil Judge, Golaghat. The said interim order has been extended
from time to time. In view of the order passed herein, the said interim order
stands vacated and the parties are directed to appear before the Trial Court on
18/8/2022, on which date, the Defendant No. shall file the evidence on affidavit
of the said Dibyajyoti Sarma without fail. Further taking into consideration that
the matter is an old pending matter, the learned Court below shall taking into
account the convenience of the parties, fix the next date for cross-examination
of the witnesses of the Defendants so filed.
8. It is made clear that there shall be no adjournment at the stage of cross-
examination of the Defendants' witness unless for unavoidable circumstances.
The Trial Court is further directed to dispose off the suit within a period of
4(four) months from the date of appearance of the parties.
9. Before concluding, it is mentioned that the Trial Court shall take into
consideration that it is a trite principle of law that if a witness does not come to
face cross-examination in respect of the evidence on affidavit so filed, the said
evidence on affidavit cannot form a part of evidence provided there is some
admission in favor of the other side.
JUDGE
Comparing Assistant
