Page No.# 1/8 vs M/S Dayal Enterprises And 3 Ors
2025 Latest Caselaw 671 Gua

Gauhati High Court

Page No.# 1/8 vs M/S Dayal Enterprises And 3 Ors on 2 June, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                   Page No.# 1/8

GAHC010103252025




                                                             2025:GAU-AS:7160

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

                        Case No. : CRP(IO)/176/2025

         AMAN JINDAL AND 2 ORS
         S/O SRI RAM PRAKASH AGARWAL (JINDAL), R/O CHIRWAPATTY ROAD,
         TINSUKIA TOWN, P.O., P.S. AND DIST- TINSUKIA, ASSAM, PIN-786125

         2: RAHUL JINDAL
          S/O SRI RAM PRAKASH AGARWAL (JINDAL)
          R/O CHIRWAPATTY ROAD
         TINSUKIA TOWN
          P.O.
          P.S. AND DIST- TINSUKIA
         ASSAM
          PIN-786125

         3: ROHIT JINDAL
          S/O SRI RAM PRAKASH AGARWAL (JINDAL)
          R/O CHIRWAPATTY ROAD
         TINSUKIA TOWN
          P.O.
          P.S. AND DIST- TINSUKIA
         ASSAM
          PIN-78612

         VERSUS

         M/S DAYAL ENTERPRISES AND 3 ORS.
         A PARTNERSHIP FIRM OF SRI RAJENDRA CHOUDHURY, SRI RAVI
         CHOUDHURY AND SRI VISHAL CHOUDHURY, SITUATED AT S.R. LOHIA
         ROAD, TINSUKIA TOWN, P.O., P.S. AND DIST- TINSUKIA, ASSAM, PIN-
         786125

         2:RAJENDRA PRASAD CHOUDHURY
          S/O LATE SATYANARAYAN CHOUDHURY
          R/O CHALIHA NAGAR
         TINSUKIA TOWN
                                                                        Page No.# 2/8

             P.O.
             P.S. AND DIST- TINSUKIA
             ASSAM
             PIN-786125

            3:RAVI CHOUDHURY
             S/O SRI RAJENDRA PRASAD CHOUDHURY
             R/O CHALIHA NAGAR
            TINSUKIA TOWN
             P.O.
             P.S. AND DIST- TINSUKIA
            ASSAM
             PIN-786125

            4:VISHAL CHOUDHURY
             S/O SRI RAJENDRA PRASAD CHOUDHURY
             R/O CHALIHA NAGAR
            TINSUKIA TOWN
             P.O.
             P.S. AND DIST- TINSUKIA
            ASSAM
             PIN-78612

             For the Petitioner(s)     : Mr. B. Dutta, Sr. Advocate
                                       : Mr. S. Deka, Advocate
             For the Respondent(s)     : Mr. H. Agarwal, Advocate


                 Date of Hearing        : 02.06.2025
                 Date of Judgment       : 02.06.2025




                                   BEFORE
                    HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                             JUDGMENT AND ORDER (ORAL)

Heard Mr. B. Dutta, the learned Senior counsel assisted by Mr. S. Deka, the learned counsel appearing on behalf of the petitioners and Mr. H. Agarwal, the learned counsel appearing on behalf of the respondent Nos. 1 to 4.

Page No.# 3/8

2. The learned Senior counsel appearing on behalf of the petitioners submitted that the proceedings under Article 227 of the Constitution have been invoked in order to place before this Court the gross abuse of the process of the Court whereby a landlord tenant dispute has been converted to a suit based on title.

3. The learned Senior counsel submitted that the petitioners herein as plaintiffs had instituted a suit against the respondents herein which was registered and numbered as Title Suit No.37/2015. The said suit was filed for recovery of vacant and khas possession of the suit premises on the ground that the defendants are defaulters in payment of rent from the month of January, 2015 onwards.

4. The learned Senior counsel drew the attention of this Court to the written statement filed by the defendants in the said suit wherein the defendants have duly admitted at paragraph No.16 and 18 that the plaintiffs were the landlords and the defendants had attorned to the plaintiffs.

5. The learned Senior counsel further submitted that on the basis of the said pleadings, the learned Trial Court on 24.06.2019 framed as many as 6 (six) issues and primarily on the ground as to whether the defendants are defaulters in payment of the monthly rent to the plaintiffs on and from the month of January, 2015. The learned Senior counsel further submitted that the examination-in-chief of the plaintiff witnesses were duly filed on 30.10.2019 and thereupon, the cross-examination of the plaintiff witnesses started w.e.f. 22.11.2019. After a passage of 5 (five) years, the cross- examination was completed on 19.07.2024.

Page No.# 4/8

6. Subsequent thereto, the case was fixed for defendants witness on 12.08.2024. After taking two adjournments, on 26.09.2024, the defendant filed an application under Order XVIII Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (for short 'the Code') for recalling the PW-1 for further cross-examination on the ground that a judgment has been delivered on 13.08.2024 in Title Suit (Probate) No.130/2014 and as such, there is a requirement for recalling of the PW-1 for further cross-examination.

7. This Court has duly taken note of the application which was filed under Order XVIII Rule 17 read with Section 151 of the Code wherein there is not a single mention as to how the said judgment passed in Title Suit (Probate) No.130/2014 has relevance to the suit in question.

8. Be that as it may, the learned Trial Court vide an order dated 29.03.2025 exercised the power under Order XVIII Rule 17 of the Code and recalled the PW-1 for further cross-examination by the defendants which is to be confined to the subject matter of the present suit in Title Suit (Probate) No.130/2014. Thereupon, it is seen that on 24.04.2025, the PW-1 was again present but there was no cross-examination carried out. Again on 03.05.2025, cross-examination of PW-1 was carried out and further cross- examination has been reserved. The learned Senior counsel further submitted that another application has been filed by the defendants seeking the records of Title Suit (Probate) No.130/2014 and as such the suit which was already a decade old is further being delayed. It is under such circumstances, the learned Senior counsel submitted that the supervisory jurisdiction of this Court is required to be invoked so that the further abuse of the process of the Court is not perpetuated.

Page No.# 5/8

9. I have also heard the learned counsel appearing on behalf of the respondents and enquired as to what is the relevance of Title Suit (Probate) No.130/2014 to the landlord tenant dispute vis-à-vis the plaintiffs as well as the defendants. The learned counsel for the respondents submitted that the subject matter of Title Suit (Probate) No.130/2014 is also the subject matter of the present suit being Title Suit No.37/2015.

10. This Court has given anxious consideration to the materials on record as well as the submissions so made by the learned counsels for the parties.

11. The materials on record as already reflected in the previous segments of the instant judgment clearly shows that the plaintiffs' suit is purely a suit for eviction of the tenants on the ground of default being made in payment of rent. The reference hereinabove made in respect to the written statement also shows that the defendants have duly attorned to the plaintiffs as their landlord and also stated that they are not defaulters. On the basis thereof, the issues have been framed including the Issue No.(ii) as to whether the defendants are defaulters in payment of rent. The record further reveals that the plaintiffs have already adduced their evidence and the defendants at the stage of evidence after taking two adjournments, have come up with this plea for recall of the plaintiff witness No.1 on the ground that there is a judgment passed on 13.08.2024 in Title Suit (Probate) No.130/2014.

12. This Court has duly perused the said application and there is nothing mentioned as to how Title Suit (Probate) No.130/2014 has any relevance with the present suit being Title Suit No.37/2015. This Court has also perused the order dated 29.03.2025 passed by the learned Trial Court and it shocks and surprises this Court that the learned Trial Court has exercised its Page No.# 6/8

jurisdiction under Order XVIII Rule 17 of the Code in such a casual manner that too when the Supreme Court made it very clear in its various judgments including in the case of K. K. Velusamy Vs. N. Palanisamy reported in (2011) 11 SCC 275, how the power under Order XVIII Rule 17 of the Code is to be

exercised.

13. This Court has also taken note of the part of the cross-examination so carried out on 03.05.2025 and it shocks and surprises this Court in the manner in which the cross-examination have also been permitted to be carried out in respect to a landlord tenant dispute where the defendants duly admits the plaintiffs as their landlords.

14. In the backdrop of the above factual aspects, it is the opinion of this Court that allowing the suit to proceed in the manner by which the learned Trial Court had permitted is in gross abuse of the process of the Court. Considering the above, in order to prevent the perpetuation of further abuse of the process of the Court as well as also arrest the unnecessary wastage of judicial time, it is the opinion of this Court that the order dated 29.03.2025 is required to be interfered with and the further continuation of the suit in the directions so made on the basis of the order dated 29.03.2025 has also to be stopped.

15. Accordingly, this Court disposes of the instant petition with the following observations and directions:

(i) The order dated 29.03.2025 passed in Title Suit No.37/2015 is interfered with.

(ii) The petition so filed by the defendants under Order XVIII Rule 17 read Page No.# 7/8

with Section 151 of the Code being Petition No.958/2024 stands dismissed.

(iii) The learned Trial Court i.e. the Court of the learned Civil Judge (Jr. Division) No.II, Tinsukia is directed not to further proceed with the cross-

examination of the plaintiff witness No.1 taking into account that the order dated 29.03.2025 has been interfered with.

(iv) The learned Trial Court is further directed to proceed with the suit in accordance with law thereby giving the defendants an opportunity to adduce evidence.

(v) Before parting with the records, this Court finds it relevant to refer to a recent judgment passed by the Supreme Court in the case of Mohit Suresh Harchandrai & Ors. Vs. Hindustan Organic Chemicals Limited dated 06.05.2025

arising out of Special Leave Petition (C) No.5754-5755 of 2025 and more particularly paragraph No.13 which is quoted herein below:

"13. Before we part with this order, we note with deep concern that from inception to its end, this dispute has been in the domain of the courts for more than two-and-a-half decades. The landlord took steps for termination of tenancy at the turn-of-the-century in 2000, and today, after a quarter of the century has already passed, only now, will they get the monetary fruits of the property that belongs to them. The application for mesne profits, as the order of the Small Causes Court itself reflects, took 11 years and more to decide. It is true that in some cases, the delay is squarely attributable to the litigating parties, but it's also equally true that in many cases, the litigants have to wait for years on end for their disputes to be resolved by judicial fora. When it comes to landlord-tenant disputes, there is an angle of being deprived of the enjoyment of the property and also the monetary benefits that accrue from owning such property. The courts, being the courts of law and justice, are duty-bound to ensure that on their Page No.# 8/8

account, no party is made to suffer. In these kinds of disputes delayed adjudication means that both parties bear the brunt. The landlord suffers on account of not receiving, in some cases, the property itself, and in other cases, the monetary dues therefrom; and the tenant suffers on account of being directed to pay large sums of money within a short period of time when the matter is finally decreed. Even though the payment arises out of an obligation, making the requisite arrangements to pay the same is still an arduous task."

(vi) This Court therefore directs the learned Trial Court to take into consideration the observations made by the Supreme Court and take appropriate steps for disposal of the said dispute at an early date.

JUDGE

Comparing Assistant