Sanjit Bortamuly vs Someswar Bortamuly @ Humbor ...
2022 Latest Caselaw 2765 Gua

                                                                   Page No.# 1/4

GAHC010041812020




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : CRP(IO)/62/2020

         SANJIT BORTAMULY
         S/O LT. TULASHI BORTAMULY, R/O VILL. BONGAON, P.O. RAHDHOLA, P.S.
         GOLAGHAT,MOUZA-DAKHINHENGERA, DIST. GOLAGHAT, ASSAM, PIN-
         785614, PH. NO. 9435049244

         VERSUS

         SOMESWAR BORTAMULY @ HUMBOR BORTAMULY AND 3 ORS.
         S/O LT. HARAKANTA BORTAMULY @ KOCH, R/O TAMULY GAON, P.O
         TAHDHOLA, P.S. GOLAGHAT, MOUZA-DAKHINHENGERA, DIST
         GOLAGHAT, ASSAM, PIN-785622

         2:RATUL BORTAMULY
          S/O LT. KESHAB BORTAMULY @ KOCH
          R/O TAMULY GAON
          P.O TAHDHOLA
          P.S. GOLAGHAT
          MOUZA-DAKHINHENGERA
          DIST GOLAGHAT
         ASSAM
          PIN-785622

         3:SUSHIL BORTAMULY
          S/O LT. KESHAB BORTAMULY @ KOCH
          R/O TAMULY GAON
          P.O TAHDHOLA
          P.S. GOLAGHAT
          MOUZA-DAKHINHENGERA
          DIST GOLAGHAT
         ASSAM
          PIN-785622

         4:MINTU BORTAMULY @ BHARGAB BORTAMULY
          S/O LT. BABUL BORTAMULY
                                                                       Page No.# 2/4

             R/O TAMULY GAON
             P.O TAHDHOLA
             P.S. GOLAGHAT
             MOUZA-DAKHINHENGERA
             DIST GOLAGHAT
             ASSAM
             PIN-78562

Advocate for the Petitioner   : MR. L K BORAH

Advocate for the Respondent : MR. T CHAKRABORTY




                                   BEFORE
                    HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                         ORDER

Date : 05.08.2022

Heard Mr. L.K. Borah, the learned counsel appearing on behalf of the Petitioner and Mr. P. Chakraborty, the learned counsel appearing on behalf of the Respondents.

2. This is an application under Article 227 of the Constitution of India challenging the order dated 21/11/2019 passed by the learned Civil Judge, Golaghat in Title Suit No.8/2014 whereby the petition filed by the Petitioner being Petition No. 655/2019 was rejected.

3. The brief facts for the purpose of dispute are that the Petitioner/Plaintiff had filed a list of witnesses stating the names and address of the persons whom he proposes to summon as witnesses in support of his case. The listed witnesses were one Puneswar Phukan, Cheniram Gohain and Tankeswar Bortamuly. The said Puneswar Phukan was the listed witness but he declined to give evidence on affidavit and during the pendency of the suit, Cheniram Gohain and Tankeswar Bortamuly expired. Under such circumstances, the Petitioner Page No.# 3/4

filed an application, which was registered as Petition No.448/2018 to include the names of Sri Parikshit Bortamuli and Sri Phanidhar Gohain in the list of witnesses. The said application was duly allowed by the Trial Court. Subsequent thereto, the evidence on affidavit of Sri Parikshit Bortamuli was filed and on the very day, another application was filed stating inter alia that Sri Phanidhar Gohain is not interested to give evidence, for which the Petitioner sought to enlist Shri Arun Bortamuly as a Plaintiff witness No. PW-3. The said petition was registered and numbered as Petition No. 655/2019.

Objection to the said petition was duly filed stating inter alia that on the earlier occasion the Plaintiff filed another petition, which was allowed for which the filing of the present petition was not maintainable.

The Trial Court vide order dated 21/11/2019 rejected the said petition on the ground that if the evidence of Shri Arun Bortamuly was relevant then the Plaintiff ought to have listed his name at the first instance while filing his list of witnesses. Subsequent thereto also, the Plaintiff got a chance on 18/4/2018, but then also the Plaintiff did not mention the name of Shri Arun Bortamuly as a material witness and under such circumstances, the Plaintiff cannot be allowed one more opportunity to examine the witness, whose name was not mentioned in the earlier petition. Under such circumstances, the said application was rejected.

Feeling aggrieved and dissatisfied, the instant application was filed under Article 227 of the Constitution.

I have heard the learned counsel for the parties and perused the materials on record.

On a specific query being made to the learned counsel appearing on Page No.# 4/4

behalf of the Petitioner as to whether the Petitioner without applying for summons can bring the witness to give evidence, the learned counsel for the Petitioner submits that he can do so.

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, this Court permits the Petitioner to adduce the evidence of Sri Arun Bortamuly as PW-3 provided the Plaintiff is in a position to produce the said witness without any summons from the Court.

The learned counsel for the Petitioner submits that on the next date fixed by this Court, the evidence on affidavit of Sri Arun Bortamuly will be filed.

This Court vide an order dated 4/6/2020 stayed further proceedings of Title Suit No. 8/2014 pending before the Court of the Civil Judge at Golaghat. The said interim order stands vacated and the parties are directed to appear before the Court below on 9/9/2022 on which date, the Petitioner/Plaintiff shall file the evidence on affidavit of Sri Arun Bortamuly without fail. The Court below shall thereafter proceed with the adjudication of the matter in accordance with law.

JUDGE

Comparing Assistant