Rama Mukherjee (Bhowmik) vs Mitra Mukherjee @ Ratna Choudhury
2022 Latest Caselaw 3686 Gua

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GAHC010163132022




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

                                 Case No. : CRP(IO)/190/2022

            RAMA MUKHERJEE (BHOWMIK)
            W/O. LT. DR. SOUMENDRA MOHAN MUKHERJEE, HATIPILKHANA, P.O.
            AND P.S. TEZPUR-784001, DIST. SONITPUR, ASSAM.



            VERSUS

            MITRA MUKHERJEE @ RATNA CHOUDHURY
            D/O. LT. HEMENDRA NARAYAN CHAUDHARY, R/O. MOUZA-
            MAHABHAIRAB, HATIPILKHANA, P.O. AND P.S. TEZPUR-784001, DIST.
            SONITPUR, ASSAM.



Advocate for the Petitioner   : MR. D DAS SR. ADV

Advocate for the Respondent : MR. S K SINGH




                                   BEFORE
                    HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                           ORDER

Date : 21.09.2022

Heard Mr. G. Goswami, the learned counsel on behalf of the petitioner and Mr. B. Pushilal, the learned counsel appearing on behalf of the respondent.

2. This is an application filed under Article 227 of the Constitution challenging the orders dated 7/7/2022 and 26/7/2022 passed by the District Judge, Sonitpur, Tezpur in T.S.(P) No. Page No.# 2/8

43/2010. For appreciating the challenge in the instant proceeding, it would be relevant to take note of that this Court vide the judgment and order dated 10/6/2022 in CRP(IO) 75/2022 passed certain directions in respect to Title Suit (P)No.43/2010. The said directions can be seen from a perusal of paragraph 21 of the said judgment and order dated 10/6/2022, which for the sake of convenience is quoted hereinbelow :

"21.A perusal of the record as well as the impugned order dated 17.03.2022 shows that there has been an inordinate delay in the disposal of the probate proceedings. This Court is also concerned with the delay in the disposal of the probate proceedings which was filed on 20.03.2010. The evidence on affidavits of three witnesses were filed on 27.04.2010 to prove the WILL of late Dr. Soumendra Mohan Mukherjee dated 18.11.2006. Out of the three witnesses, one witness has already expired and any further delay in the disposal of the probate proceeding may result in frustration of the entire probate proceedings. Consequently, therefore, this Court in exercise of the powers under Article 227 of the Constitution of India directs the following:-

(i) The parties shall appear before the Court of the District Judge, Sonitpur, Tezpur on 21.06.2022. On the said date, the respondent herein who is the plaintiff in T.S.(P) No. 43/2010, shall produce her witnesses for cross-examination at 10.30 AM.

(ii) The Court of the District Judge, Sonitpur, Tezpur is directed to take up the said probate proceeding as the first item of the day so that the cross- examination of the plaintiff witnesses can be done. If for some reasons the cross-examination could not be done or completed, the court below shall take up the matter on the next date as the first item and continue henceforth till the cross-examination of the plaintiff witnesses are completed. The said cross-examination is directed to be taken on day-to- day basis till it is not completed.

(iii)It is further made clear that if there is any objection raised s regard the admissibility of the evidence tendered, the court below shall take it up for consideration at the final argument of the suit.

(iv) It is further directed that after completion of the cross-examination, the court below shall dispose of the said probate proceedings as expeditiously as possible and preferably within a period of 3 (three) months from 21.06.2022.

(v) During the said trial, if any of the parties are aggrieved by any order being passed, which are not otherwise appealable under the Code of the Page No.# 3/8

Civil Procedure, the parties shall be at liberty to raise objection to such order in terms with Section 105 of the CPC."

3. Pursuant to the said directions passed by this Court wherein the parties were directed to appear before the Court of the District Judge, Sonitpur, Tezpur, on 21/06/2022 and the plaintiff in Title Suit(P) No. 43/2010 produced the witness for cross-examination. It appears that the matter was fixed on 7/7/2022. In the meantime, being aggrieved and dissatisfied with the judgment and order dated 10/6/2022 passed in CRP(IO) No.75/2022, an SLP being Special Leave to Appeal (C) No.12402/2022 was filed before the Supreme Court.

4. On 7/7/2022, when the matter was fixed for cross-examination of the plaintiff's witnesses, an application was filed by the Advocate on behalf of the petitioner seeking adjournment on the ground that an SLP was filed against the judgment and order dated 10/6/2022 passed by this Court and a diary number was given in that respect. It was stated in the said application that in view of the filing of the Special Leave Petition, the matter may be adjourned. However, the Court of the District Judge, Sonitpur, Tezpur(hereinafter for short referred to as a Trial Court) rejected the said petition on the ground that there was no stay to the judgment and order dated 10/6/2022 passed in CRP(IO) No. 75/2022. The Trial Court further taking into consideration that both the witnesses who were senior citizens were available in the Court for their cross-examination on the date fixed by the Court but on every occasion the respondent would come with a new story rejected the said petition for adjournment. It would also be necessary to take note of that on the very date when the witnesses were very much present, there was none to cross-examine the plaintiff's witnesses and consequently in view of the grounds assigned in the said order dated 7/7/2022, the cross-examination of the plaintiff witnesses was closed.

5. Upon closing the said evidence of the plaintiff, the Court fixed 15/7/2022 for the defendant witnesses. On 15/7/2022, the defendant herein did not file the evidence on affidavit of the defendant witness. The lawyer for the defendant Mr. G. Goswami filed an application under Order XVIII Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 for recalling of the order dated 7/7/2022 as well as for recalling of the witnesses.

6. It shocks and surprises this Court to note that the matter in which the application was filed taking into account that the said application was not in consonance with the provisions Page No.# 4/8

of Order VI Rule 15 read with Section 141 of the Code of Civil Procedure as well as Rule 16 of

the Civil Court Rules and Orders of Gauhati High Court. A petition seeking judicial determination has to be supported by way of an affidavit and/or required to be verified in the manner as stipulated in Order VI Rule 15 of the Code. But in this case, upon perusal of the said application enclosed as Annexure-6 to the instant proceedings, it would be seen that the said application was filed by the lawyer and on the basis of the verification by the lawyer without even making a statement in the said petition that he had been instructed by the defendant to file the said petition and swear the verification on behalf of the defendant.

7. Be that as it may, the Trial Court vide an order dated 26/7/2022 rejected the said petition filed for recalling of the order dated 7/7/2022 as well as for recalling of the witnesses. It is relevant to note that the said petition registered and numbered as Petition No. No.2562/2022. The Trial Court while passing the order dated 26/7/2022 observed that the petition has been filed by the counsel and not by the defendant herself. The Trial Court also observed that for recalling of an order as well as for recalling of a witness, the same can be done only on sufficient cause being shown by the party making the application and there was no ground for recalling of the witnesses as well as the order dated 7/7/2022 justifying the prayer sought for. The Trial Court accordingly fixed 23/8/2022 for defendant witnesses.

8. Pursuant to the orders passed on 7/7/2022 and 26/7/2022, another development had taken place inasmuch as the SLP which was filed by the petitioner before the Supreme Court challenging the judgment and order dated 10/6/2022 passed in CRP(IO) No.75/2022 was withdrawn and accordingly dismissed. Therefore, the said order dated 10/6/2022 passed by this Court in CRP(IO) No. 75/2022 had attained finality. At this stage, it may be relevant to note that in paragraph 21 (v) of the judgment and order dated 10/6/2022, it was clearly mentioned that if during the trial, any order(s) was passed which was not appealable under the Code, the parties shall be at liberty to raise objection to such order(s) in terms with Section 105 of the Code. The orders impugned herein were not orders appealable under Section 104 read with Order XLIII of the Code. However, the petitioner who was the defendant in the suit again approached this Court under Article 227 of the Constitution by way of the instant petition challenging the order dated 7/7/2022 as well as the order dated 26/7/2022 on 16/8/2022.

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9. This Court vide an order dated 17/8/2022 issued notice making it returnable by four weeks and stayed the further proceedings of Title Suit(P) No.43/2010 pending in the Court of the District Judge, Sonitpur, Tezpur till the next returnable date. It has been mentioned by the learned counsel for the petitioner/defendant which have also been agreed by the learned counsel appearing on behalf of the respondent/plaintiff that the order passed on 17/8/2022 by this Court could not be communicated to the Trial Court and consequently on 23/8/2022 as the petitioner who was the defendant in the said proceedings did not file his evidence on affidavit, the defendant's evidence was closed.

10. In the backdrop of the above facts, let this Court take into consideration the submission made by the learned counsel for the parties.

11. Mr. G. Goswami, the learned counsel appearing on behalf of the petitioner submits that the order dated 7/7/2022 as well as the order dated 26/7/2022 are required to be interfered with taking into consideration that the petitioner has approached the Supreme Court by filing an SLP against the judgment and order dated 10/6/2022 passed in CRP(IO) No. 75/2022. He further submits that in the eventuality, this Court is not inclined to interfere with orders dated 7/7/2022 and 26/7/2022, this Court may take into account the subsequent events pursuant to the order dated 17/8/2022 passed by this Court wherein the further proceedings of T.S.(P) No.43/2010 was stayed and inspite of that, the Court below had closed the evidence of the DWs. He submitted that if one additional opportunity is being granted, the defendant shall file all their evidence on affidavit on such date as may be fixed by this Court.

12. On the other hand, Mr. B.Pushilal, the learned counsel appearing on behalf of the respondent submits that inspite of the judgment and order passed by this Court, the petitioner herein for one reason or other have been trying to delay the proceedings in Title Suit(P) No. 43/2010. He submits that there were three witnesses who have filed their evidence on affidavit on 27/4/2010 to prove the WILL of Late Dr. Somendra Mohan Mukherjee dated 18/11/2006. Out of the three witnesses, one witness had already expired. Out of the remaining two witnesses, one witness' health is frail and the respondent herein is quite aged. He submits that in view of the specific directions passed by this Court in paragraph 21 of the judgment and order dated 10/6/2022, the said two witnesses had appeared before the Court and on one ground or the other the petitioner had been seeking adjournment. He submits Page No.# 6/8

that merely filing of an SLP does not amount to a stay to the directions passed by this Court in the judgment and order dated 10/6/2022, more so, when the directions passed by this Court was specific. He submits that the petitioner by hook or by crook through her counsel is trying to frustrate the probate suit and this aspect of the matter would be seen from the application filed on 7/7/2022 as well as on 26/7/2022 whereby it is the counsel who is filing such petitions in order to derail and delay the probate proceedings. He submits that this is a fit case wherein exemplanary cost should be imposed upon the petitioner for abusing the process of the Court. The learned counsel further submitted that it is a well settled principle of law that the superintending power of the High Court under Article 227 of the Constitution is to be sparingly used to keep the Courts and the Tribunal within its jurisdiction under bounds. He submits that the filing of the instant petition is on the face of it being a complete abuse of the process of the Court, the instant petition is liable to be dismissed with costs.

13. Upon hearing the learned counsel for the parties and upon perusal of the materials on record, this Court would like to take up each of the orders impugned in the instant proceedings one by one. This Court had already quoted paragraph 21 of the judgment and order dated 10/6/2022 passed in CRP(IO) No. 75/2022 wherein various directions have been given so that the Title Suit(P) No. 43/2010 could be brought to a logical end. Pursuant to the directions passed by this Court, the Trial Court have tried to implement the said directions but from the conduct of the petitioner it reveals that on one pretext or the other such directions were not allowed to be implemented. Of the two remaining witnesses, who are aged, and of which, one is of frail health, who have been appearing before the Court in pursuant to the directions, the petitioner on one ground or the other had not cross-examined them. On 7/7/2022, a petition was filed stating inter alia that in view of filing of an SLP, the matter should be adjourned. The Trial Court rightly taking into account that filing of an SLP does not amount to stay to the directions passed by this Court in the judgment and order dated 10/6/2022 had rejected the said application. Even after refusal to grant adjournment by the Trial Court, there was none on behalf of the petitioner to cross-examine the witnesses who were present. Considering the above, the Trial Court was therefore justified in passing the order dated 7/7/2022.

14. Now coming to the next order dated 26/7/2022, it would be seen that on that day also Page No.# 7/8

another application was filed by the counsel appearing on behalf of the petitioner seeking recall of the order dated 7/7/2022 as well as for recalling the witnesses under Order XVIII Rule 17 of the Code of Civil Procedure, 1908. This application on the face of it was not maintainable taking into account that the application was not supported by way of an affidavit as was required under Order VI Rule 15 (4) read with Section 141 of the Code of Civil Procedure as well as Rule 16 of the Civil Court Rules and Orders of the Gauhati High Court which mandates that when an application is filed seeking judicial determination, it has to be supported by way of an affidavit or verified in the manner stipulated in Order VI Rule 15 of the Code. Upon a perusal of the petition filed which was registered and numbered as Petition No. 2562/2022, it would also be seen that though the application was filed on behalf of the petitioner by the lawyer on the basis of a verification by the lawyer there was not even a statement made to the effect that the petitioner had authorised the said counsel to file such application. Therefore, the said petition on the face of it appears to be not maintainable.

15. Be that as it may, if the grounds assigned in the said application is looked into, the said grounds are totally misconceived for recalling an order passed or for recalling a witness. Consequently, the order dated 26/7/2022 also does not call for any interference by this Court, more so, in a proceeding under Article 227 of the Constitution. Therefore, this Court is not inclined to exercise the jurisdiction under Article 227 of the Constitution in so far as the orders dated 7/7/2022 and 26/7/2022 are concerned.

16. Before concluding, it is also relevant to take note of the submission made by the learned counsel for the petitioner to the effect that in spite of the order dated 17/8/2022 passed by this Court in the instant proceedings, the Trial Court vide the order dated 22/5/2022 had closed the defendant witnesses.

17. On a specific query being made to the learned counsel for the petitioner as to whether the said order was duly communicated to the Court below, the learned counsel with all fairness submitted that the said order was however not communicated to the Court below on account of the miscommunication between the counsel appearing at Guwahati and the local counsel at Tezpur. Taking into account that this Court vide order dated 17/8/2022 had stayed the further proceedings of T.S.(P) No. 43/2010 till the returnable date, this Court is of the opinion that the order dated 23/8/2022 by which the defendant witnesses was closed needs Page No.# 8/8

to be interfered with and accordingly the said order by which the defendant evidence was closed is hereby interfered with.

18. The learned counsel for the petitioner/ the defendant submits that the petitioner/ the defendant in the suit would be able to filed their evidence on affidavit of all the defendant witness on a date as may be fixed by this Court. Considering the above, this Court fixes the Title Suit No.(P) 43/2010 on 02/11/2022, on which date the defendant in the suit/the petitioner herein shall file the evidence on affidavit of all the witnesses without fail. Thereupon, the Court shall dispose of the suit in accordance with law as expeditiously as possible and preferably within a period of 3(three) months from 02/11/2022. The directions in the judgment and order dated 10/6/2022 passed by this Court shall hold the field except paragraph 21(iv) which stands modified as stated herein above.

19. With the above observations and directions, the instant petition stands disposed off. The Registry is directed to forthwith communicate to the learned District Judge, Sonitpur, Tezpur about the instant order.

JUDGE

Comparing Assistant