Gauhati High Court
Page No.# 1/6 vs On Death Of Late Atowar Rahman His ... on 28 July, 2022
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GAHC010110132019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/155/2019
JOYGAN BIBI AND ANR.
W/O- MOZIBAR RAHMAN, R/O- VILL- AIRANJONGLA PART-I, P.O- AMCO
ROAD, P.S AND DIST- DHUBRI, ASSAM
2: MOZIBAR RAHMAN
S/O- LATE GHATU MOLLAH
R/O- VILL- AIRANJONGLA PART-I
P.O- AMCO ROAD
P.S AND DIST- DHUBRI
ASSA
VERSUS
ON DEATH OF LATE ATOWAR RAHMAN HIS LEGAL REPRESENTATIVE -
BHANU BEWA AND 5 ORS
DHUBRI, ASSAM
1.1:BHANU BEWA
W/O- ATOWAR RAHMAN
R/O- VILL- AIRANJONGLA PART-I
P.O- AMCO ROAD
P.S AND DIST- DHUBRI
ASSAM
1.2:MD SOLEMAN
S/O- ATOWAR RAHMAN
R/O- VILL- AIRANJONGLA PART-I
P.O- AMCO ROAD
P.S AND DIST- DHUBRI
ASSAM
1.3:BAIN UDDIN
S/O- ATOWAR RAHMAN
R/O- VILL- AIRANJONGLA PART-I
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P.O- AMCO ROAD
P.S AND DIST- DHUBRI
ASSAM
1.3.1:NUR JAHAN BEWA
W/O LATE BIAN UDDIN
1.3.2:ANJULI KHATUN
D/O LATE BIAN UDDIN
1.3.3:IKBAL HUSSAIN
S/O LATE BIAN UDDIN
BEING MINOR REPRESENTED BY HIS MOTHER NUR JAHAN BEWA
1.3.4:RAFIQUL ISLAM
S/O LATE BIAN UDDIN
BEING MINOR REPRESENTED BY HIS MOTHER NUR JAHAN BEWA
1.3.5:INZAMUL HAQUE
S/O LATE BIAN UDDIN
BEING MINOR REPRESENTED BY HIS MOTHER NUR JAHAN BEWA
1.4:ATIFUR RAHMAN
S/O- ATOWAR RAHMAN
R/O- VILL- AIRANJONGLA PART-I
P.O- AMCO ROAD
P.S AND DIST- DHUBRI
ASSAM
1.5:ANOWAR HUSSAIN
S/O- ATOWAR RAHMAN
R/O- VILL- AIRANJONGLA PART-I
P.O- AMCO ROAD
P.S AND DIST- DHUBRI
ASSAM
1.6:SANOWAR HUSSAIN
S/O- ATOWAR RAHMAN
R/O- VILL- AIRANJONGLA PART-I
P.O- AMCO ROAD
P.S AND DIST- DHUBRI
ASSAM
1.7:SOFIOR RAHMAN
S/O- ATOWAR RAHMAN
R/O- VILL- AIRANJONGLA PART-I
P.O- AMCO ROAD
P.S AND DIST- DHUBRI
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ASSAM
1.8:MOSTT SALEHA KHATUN
D/O- ATOWAR RAHMAN
W/O- ASHRAF ALI
R/O- VILL- NEWGHAT
P.O- AMCO ROAD
P.S AND DIST- DHUBRI
ASSAM
1.9:MONOWARA KHATUN
D/O- ATOWAR RAHMAN
W/O- AMJAD ALI
R/O- VILL- GASPARA
P.O- DHARAMSHALA
P.S AND DIST- DHUBRI
ASSAM
1.10:MINERA KHATUN
D/O- ATOWAR RAHMAN
R/O- VILL- ARANJONGLA
P.O- AMCO ROAD
P.S AND DIST- DHUBRI
ASSAM
1.11:ON THE DEATH OF LATE FAZILA KHATUN
W/O- ALI HUSSAIN HER LEGAL HEIR REPRESENTATIVE
1.11.1:ALI HUSSAIN
S/O- LATE ROMIZUDDIN
R/O- VILL- BOGULAMARI
P.O- AMCO ROAD
P.S AND DIST- DHUBRI
ASSAM
1.11.2:FAIJAL HOQUE
S/O- ALI HUSSAIN
R/O- VILL- BOGULAMARI
P.O- AMCO ROAD
P.S AND DIST- DHUBRI
ASSAM
1.11.3:MOFAJJAL
S/O- ALI HUSSAIN
R/O- VILL- BOGULAMARI
P.O- AMCO ROAD
P.S AND DIST- DHUBRI
ASSAM
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1.11.4:ROBIAL
S/O- ALI HUSSAIN
R/O- VILL- BOGULAMARI
P.O- AMCO ROAD
P.S AND DIST- DHUBRI
ASSAM
1.11.5:AIJAL
S/O- ALI HUSSAIN
R/O- VILL- BOGULAMARI
P.O- AMCO ROAD
P.S AND DIST- DHUBRI
ASSAM
1.11.6:HAFIZUL
S/O- ALI HUSSAIN
R/O- VILL- BOGULAMARI
P.O- AMCO ROAD
P.S AND DIST- DHUBRI
ASSA
Advocate for the Petitioner : MR. K K DEY
Advocate for the Respondent : MR G BHARADWAJ
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 28.07.2022
Heard Mr. K.K. Dey, the learned counsel appearing on behalf of the
Petitioners and Mr. G. Bharadwaj, the learned counsel appearing on behalf the
Respondents Ms. S. Sharma, the learned counsel appears on behalf of the
Respondent Nos. 5 & 6.
2. This is a petition under Article 227 of the Constitution challenging the order
dated 28/2/2019 passed by the Munsiff No. 2, Dhubri in Title Suit No. 82/2011
whereby the Court below had rejected the prayer of the Petitioners to file
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additional evidence on affidavit of PW-1 as well as to adduce another witness on
the ground that the same would amount to fill up the lacuna in the evidence on
affidavit of the PW-1 which had surfaced after the cross-examination of the PW-2
and PW-3. It was further mentioned by the Court below that if the additional
evidence on affidavit is accepted, it will prejudice the Defendant and as such the
leave so sought for filing additional evidence on affidavit of the PW-1 and to
adduce the evidence of an additional witness by the name of Mr. Joynal Abedin was
rejected.
3. I have heard the learned counsel for the parties and also perused the
materials on record.
4. It appears from the record that the Plaintiffs' evidence have not yet been
closed. Further to that, the PW-1 has not yet been cross-examined. Therefore,
permitting the PW-1 to file an additional evidence on affidavit, in the opinion of this
Court, shall not prejudice the Defendant inasmuch as the Defendant shall have the
right to cross-examine the Plaintiffs' witness No. 1 on such additional evidence on
affidavit so filed.
5. As regards the evidence of Joynal Abedin, when the Plaintiffs wishes to bring
him as a witness in terms with Order XVI Rule 1A of the Code of Civil Procedure,
1908, this Court taking into consideration the judgment of the Supreme Court in
the case of Mangeram Vs.Brij Mohan reported in (1983) 4 SCC 36, is of the
opinion that permitting the said witness to adduce evidence would not prejudice
the Defendants inasmuch as the Defendants would be in a position to cross-
examine the said witness. Consequently, this Court therefore, interferes with the
order dated 28/2/2019, thereby permitting the Petitioners to file additional
evidence on affidavit of PW-1 as well as grants leave to the Plaintiffs to adduce the
evidence of Mr. Joynal Abedin as a Plaintiffs' witness.
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6. In view of the above, the instant petition stands disposed off.
7. The interim order dated 29/5/2019 by which the further proceedings of Title
Suit No. 82/2011 pending before the Court of the Munsiff No. 2, Dhubri was stayed
is hereby vacated. The parties are directed to appear before the Court below on
1/9/2022.
JUDGE
Comparing Assistant
