Page No.# 1/8 vs Ajay Kumar Gupta
2022 Latest Caselaw 4559 Gua

                                                                      Page No.# 1/8

GAHC010026592020




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

                                  Case No. : CRP/19/2020

            MRIDUL MAZUMDAR AND ANR.
            S/O- SRI SITESH MAZUMDAR, R/O- W/NO- 4, RABINDRA SARANI, DHUBRI
            TOWN, P.O., P.S. AND DIST.- DHUBRI, ASSAM- 783301.

            2: SMTI. MAYA SEN GUPTA
            W/O- SRI JAHAR SEN GUPTA
             R/O- DHUBRI TOWN
            W/NO. 7
             P.S. AND DIST.- DHUBRI
            ASSAM- 78330

            VERSUS

            AJAY KUMAR GUPTA
            S/O- SRI KESHAB PRASAD GUPTA, R/O- W/NO.- 5, N.S. ROAD, DHUBRI
            TOWN, P.O. AND P.S. AND DIST.- DHUBRI, ASSAM- 783301.


Advocate for the Petitioner   : MR G N SAHEWALLA

Advocate for the Respondent : MR F U BARBHUIYA


                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                         ORDER

Date : 18.11.2022

Heard Mr. G.N. Sahewalla, learned senior counsel assisted by Ms. S. Todi, learned counsel for the petitioners. Also heard Mr. F.U. Barbhuiya, learned Page No.# 2/8

counsel for the respondent.

2. By this revision petition under section 115 CPC, the petitioners, namely, (1) Mridul Mazumar and (2) Maya Sen Gupta, have assailed the judgment and decree dated 18.12.2019, passed by the learned Civil Judge, Dhubri in T.A. No. 23/2014, thereby dismissing the appellant and affirming the judgment and decree dated 18.02.2014, passed by the learned Munsiff No.1, Dhubri in T.S. No. 239/1995.

3. At the outset, the learned counsel for the respondent has referred to the order dated 22.09.2022 passed in this case and it is submitted that this proceeding has abated insofar as the petitioner no.2, namely, Maya Sen Gupta is concerned. The said point of preliminary objection has been noted and would be addressed subsequently.

4. In brief, the case of the respondent who is the plaintiff in the suit is that the petitioner no.1 was a tenant in respect of suit premises and there was an agreement to pay rent @ Rs.500/- (Rupees five hundred only) per month,

which was payable within the 1st week of every English calendar month. However, as the petitioner no.1 had defaulted in payment of rent since beginning of the tenancy, he was the defaulter and therefore, the respondent had filed the suit for eviction and recovery of arrear rent. The said suit was registered as T.S. No. 239/1995. As many as nine issues were framed for trial and the learned Munsiff No.1, Dhubri had examined the proceedings as well as the evidence on record. The suit was decreed by holding that the respondent has been able to prove his title over the suit land and it was held that the petitioner no.1 is a defaulter.

Page No.# 3/8

5. Aggrieved by the said judgment, the petitioner no.1 had preferred an appeal, which was registered and numbered as T.A. No. 4/2000 and the learned Civil Judge (Senior Division), Dhubri, by its judgment and decree dated 26.11.2002, had allowed the appeal on the ground that the issue no.4, relating to non-joinder of necessary party was not decided and the suit was remanded back for a fresh decision. Accordingly, on remand the said suit was heard by the learned Munsiff No.1, Dhubri and once again all the issues framed for trial was decided in favour of the respondent and by judgment and decree dated 18.02.2014, the learned Munsiff No.1, Dhubri had decreed the suit with cost by ordering recovery of khas possession of the schedule-B suit land by evicting the petitioner no.1.

6. Against the said appellate judgment, the petitioner no.1 had preferred a revision before this Court, which was registered as CRP 72/2018. On the ground that the factual matrix as regards the title was required to be considered, related to issue no.6, by judgment dated 28.03.2019, passed in CRP 72/2018, the appellate judgment was set aside and T.A. No. 23/2014 was remanded back for fresh decision after considering the observations made in the said order.

7. On remand, the proceedings of the appeal was taken up before the first appellate Court and with regard to issue no.6, in paragraph 15 of the appellate judgment dated 18.12.2019, passed in T.A. No. 23/2014, the learned Civil Judge, Dhubri had held that the defendant no.2 (deceased petitioner no.2) had claimed herself to be the owner of the suit premises in her written statement, but she had not adduced in evidence in the support of her plea and therefore, it was held that the examination of the petitioner no.1 as defendant Page No.# 4/8

no.1 would not be sufficient evidence regarding ownership of the deceased petitioner no.2 over the suit land. Accordingly, it was held that the respondent was able to prove his ownership on the strength of documentary evidence in respect of the suit premises. Accordingly, the appeal was dismissed and the decree by the learned trail Court was affirmed.

8. The learned counsel for the respondent has strenuously submitted that in the trial Court proceedings, the suit was decreed twice in his favour and the appeal was also dismissed and there is concurrent findings to the effect that the respondent have been able to prove his title over the suit land. He has also made his submission in support of the various issues including additional issue no.10 decided by the learned trial Court.

9. Considered the materials available on record and also perused the LCR of both the Court below.

10. The Court finds merit in the submission made by the learned senior counsel for the petitioner no.1 that the suit was filed by the respondent for ejectment for petitioner no.1. Therefore, the death of co-defendant in the suit, i.e. the petitioner no.2 would not materially affect the petitioner no.1 and it is submitted that the petitioner no.1, being a co-defendant is not required to substitute the deceased petitioner no.2. Accordingly, his submission, though opposed by the learned counsel for the respondent, is accepted. Thus, the preliminary objection of the learned counsel for the respondent is answered in the negative and in favour of the petitioner no.1 by holding that this revision would be maintainable despite the death of the petitioner no.2.

11. As this Court has already held by order dated 22.09.2022 that the Page No.# 5/8

proceedings is abated insofar as the petitioner no.2 is concerned., the Court deems it appropriate that the name of petitioner no.2 shall be struck off on her death on 30.03.2020.

12. To appreciate the submission made by the learned senior counsel for the petitioners, the record of T.S. No. 239/1995 has been perused. The records reveals that after the suit was dismissed by virtue of the appellate Court's order, the trial of the suit was re-commenced. In T.S. No. 239/1995, the petitioner no.2 (since deceased) had filed an application under Order I, Rule 10(2) CPC, which was numbered as petition no.664, against which an objection was submitted by the respondent. By order dated 10.11.2005, petition no.664 filed by the deceased petitioner no.2 was rejected. As stated hereinbefore, the petitioner no.1 had preferred revision before this Court against the said order, being CRP 145/2005. In view of the order dated 22.02.2006, the petition no.664 was revived before the learned trial Court and was heard afresh. The learned senior counsel for the petitioner no.1 has submitted that against the said order dated 22.02.2006, review petition was also filed by the respondent, being Review Petition No.38/2006, which was dismissed on 28.04.2006. However, before the petition no. 664 was reconsidered, the learned Munsiff No.1, Dhubri, by order dated 02.11.2006, permitted cross-examination of petitioner no.2 (since deceased), as third party to the proceedings. Accordingly, the records reveals that on 02.11.2006, the deceased petitioner no.2 was cross-examined and discharged. By order dated 16.03.2007, petition no.664 for impleading was considered and allowed and she was impleaded as defendant no.2 and on 13.04.2007, the newly impleaded defendant no.2 was permitted to file additional written statement, which was made a part of records and it is mentioned in the order dated 13.04.2007 that an amendment has been made.

Page No.# 6/8

Thereafter, additional issues were framed on 04.05.2007. Be it stated that the learned counsel for the respondent has not been able to show that the evidence of the petitioner no.2 (since deceased) was expunged.

13. Thus, it appears that though irregular, but the evidence on affidavit by the deceased petitioner no.2 as well as her cross-examination was never expunged and remained as part of record. It is appalling to note that in the trial Court judgment dated 18.02.2014, the learned Munsiff No.1, Dhubri did not reflect in the appendix to the said judgment that the petitioner no.2 was examined as witness. The documents exhibited by her appears to have not been taken note of although in the appendix, there is a reference to Ext.A and Ext.B. The other documents exhibited by the deceased petitioner no.2 was also referred therein. Moreover, it is further noted with concern that the appellate Court, i.e. the Court of learned Civil Judge, Dhubri in its judgment dated 18.12.2019, passed in T.A. No. 23/2014, in paragraph 18 has stated that the defendant no.2 (deceased petitioner no.2) had not adduced evidence in support of her plea. Therefore, in the judgment passed by both the learned Courts below, the evidence of the petitioner no.2 (since deceased), who was examined as third party before the learned trial Court was never appreciated or taken into consideration.

14. In view of above, as both the Courts below had failed to consider or take note of the evidence adduced by the defendant no.2 [petitioner no.2 (since deceased)], this Court has refrained from discussing decision rendered by both the learned Courts below, i.e. by the learned trial Court and the learned first appellate Court, as it would not serve any purpose.

15. Having noted that the learned appellate Court had failed to consider Page No.# 7/8

the evidence of the defendant no.2 [petitioner no.2 (since deceased)], and that the learned trial Court had also not taken note of the said evidence, this Court deem it appropriate that the appellate judgment and decree be interfered with. For the reasons assigned hereinbefore, this is an appropriate case wherein the proceedings of T.A. No. 23/2014 be remand back for a fresh decision after considering the evidence available on record.

16. The non-consideration of the evidence of defendant no.2 renders concurrent judgment passed by both the learned Courts below as perverse as this is a case of non-consideration of the evidence which is available on record. Hence, the Court is inclined to set aside and quash the first appellate judgment and decree dated 18.12.2019, passed by the learned Civil Judge, Dhubri in T.A. No. 23/2014 for a fresh hearing and disposal in accordance with law. As both the Courts below had not appreciated the evidence of petitioner no.2 (since deceased), it would not be appropriate for the revisional Court to appreciate such evidence for the first time. Hence, there is no alternative, but to remand the appeal.

17. Having noted that the original suit is of the year 1995 and the appeal was filed in the year 2014, the Court is inclined to request the learned Civil Judge, Dhubri to make an effort to dispose of the proceedings of T.A. No. 23/2014 preferably within a period of 3 (three) months from the date of receipt of certified copy of the order, if required, by curtailing unnecessary adjournments and ordering day to day hearing.

18. As nothing has been brought on record to show that any further facts or evidence are required to be introduced by the parties, it is provided that parties to the proceeding would not have any right to adduce any further or Page No.# 8/8

additional evidence and the matter would be heard on the basis of the pleadings and materials already available on record.

19. The petitioner no.1, who is the appellant no.1 in T.A. No. 23/2014 and the respondent, who is also the respondent in the said appeal are both directed to appear before the learned Civil Judge, Dhubri on 05.12.2022 along with a certified copy of this order and seek further instruction from the said learned Court. The said parties are put to notice that if they fail to appear on the date fixed, they would be doing so at their own risk and be prepared for the consequence of non-appearance.

20. In view of the aforesaid direction, there would be no necessity of the learned Civil Judge, Dhubri to issue notice for hearing to the parties.

21. Registry shall expeditiously send back both the LCRs.

22. With the aforesaid observation, this revision petition stands disposed of.

JUDGE

Comparing Assistant