Sanjib Saikia vs Rajesh Kumar Gupta And 12 Ors
2025 Latest Caselaw 4371 Gua

Gauhati High Court

Sanjib Saikia vs Rajesh Kumar Gupta And 12 Ors on 24 March, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                              Page No.# 1/10

GAHC010171562024




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

                       Case No. : CRP(IO)/314/2024

         SANJIB SAIKIA
         S/O- LATE DANDIDHAR SAIKIA,
         R/O- HOUSE NO. 189, BEHIND SAIKIA MARKET COMPLEX,
         G.S. ROAD, GANESH GURI CHARIALI, BELOW GANESHGURI FLYOVER,
         GUWAHATI- 781006, DIST.- KAMRUP(METRO), ASSAM.



         VERSUS

         RAJESH KUMAR GUPTA AND 12 ORS
         S/O- GAURI KUMAR GUPTA,
         RESIDENT OF SUKHI JEEVAN COMPOUND,
         CHRISTIAN BASTI, G.S. ROAD,
         OPP. HOTEL PRAGATI MANOR, GUWAHATI,
         ASSAM- 781005.

         2:TRILUKYA KONWAR
          S/O- LATE BUDHIN CH. KONWAR

         RESIDENT OF GHORAMARA

         DIBRUGARH TOWN
         DIBRUGARH

         ASSAM.

         3:PUNKAJ BORUAH
          S/O- LATE DHARMA BORUAH

         RESIDENT OF A.I.R. CAMPUS

         QUARTER NO. 49/3
         CHANDMARI
                                   Page No.# 2/10


GUWAHATI- 781003
KAMRUP(METRO)

ASSAM.

4:APURBA GOSWAMI
 S/O- LATE JOGESWAR GOSWAMI

RESIDENT OF CHANDMARI COLONY

GUWAHATI- 781003
KAMRUP(METRO)

ASSAM.

5:BIPUL CHILA OJA
 S/O- LATE BHUBAN CH. CHILA OJA

RESIDENT OF MELACHKAR

P.O. AND P.S.- SIVSAGAR

SIVSAGAR
ASSAM.

6:HIMADRI BORA
 S/O- DULAL BORA

RESIDENT OF FLAT NO. 2B
JYOTI APARTMENT

PUB-JYOTINAGAR
GUWAHATI- 781020

KAMRUP(METRO)
ASSAM.

7:ANINDITA CHATTOPADHYAY BORA
W/O- SRI HIMADRI BORA

R/O- FLAT NO. 2B
JYOTI APARTMENT

PUB- JYOTINAGAR
GUWAHATI- 781020

KAMRUP(METRO)
                                           Page No.# 3/10

ASSAM.

8:BHUBAN CHANDRA TAMULI
 S/O- LATE GANGA RAM TAMULI

RESIDENT OF PADUMANI KATHALBARI GAON

CHELENGHAT
JORHAT ASSAM
AND AT PRESENT RESIDENT OF FLAT NO. 502

MEGHMALLAR APARTMENT
ZOO NARENGI ROAD

M.T. ROAD
GUWAHATI- 781021
KAMRUP(METRO)

ASSAM.

9:DR. CHANDAN DOLAKASHARIA
 S/O- HOREN DHOLAKASHARIA

RESIDENT OF KAMALBARI ROAD

P.S.- LAKHIMPUR
ASSAM
AND AT PRESENT RESIDENT OF FLAT NO. T2A

TOWER BLOCK
PROTECH PARK
HENGRABARI ROAD

GANESHGURI
GUWAHATI- 781036
ASSAM.

10:KOUSTAV KUMAR ATRAYA
 S/O- LATE ROBIN SARMA

RESIDENT OF M.I.G. BUILDING

2/4 CHANDMARI COLONY
 GUWAHATI- 781003

KAMRUP(METRO)
ASSAM
                                                                       Page No.# 4/10

        REPRESENTED BY ITS TRUE AND LAWFUL ATTORNEY
        SMTI. DIPTI SARMA

        APPOINTED BY VIRTUE OF G.P.A. NO. 3494/16 DATED 23.12.2016.

        11:TRIDIV MOHAN DAS
         S/O- LATE ANIL MOHAN DAS

        RESIDENT OF NIHARIKA NIWAS

        284 M.T. ROAD
         GITA NAGAR
         GUWAHATI-781024

        KAMRUP METRO
        ASSAM.

        12:NIKHIL MOHAN DAS (MINOR)
         REPRESENTED BY HIS FATHER AND NATURAL GUARDIAN

        SRI TRIDIV MOHAN DAS
        RESIDENT OF NIHARIKA NIWAS

        284 M.T. ROAD
         GITA NAGAR
         GUWAHATI- 781024
        KAMRUP(METRO)
        ASSAM.

        13:BASAB SHARMA
         S/O- SRI BIHURAM SHARMA

        RESIDENT OF MANGAL NAGAR

        P.O.- MANGALDAI
         DARRANG
        ASSAM

Advocate for the Petitioner           : Mr. Drupad Das, Advocate


Advocate for the Respondents          : Mr. N. Alam, Advocate
                                                        Page No.# 5/10




                          BEFORE
     HONOURABLE MR. JUSTICE DEVASHIS BARUAH
                Date of Hearing     : 24.03.2025

                Date of Judgment    : 24.03.2025
             JUDGMENT AND ORDER (ORAL)

Heard Mr. Drupad Das, the learned counsel appearing on behalf of the petitioner and Mr. N. Alam, the learned counsel appearing on behalf of the respondents.

2. At the outset, Mr. Drupad Das, the learned counsel appearing on behalf of the petitioner submits that he was confused and was not aware that the impugned order is required to be made a part of the petition. He was under the impression that the impugned order is just required to be filed with the petition and not made an Annexure to the petition.

3. This Court taking into account that it is a mistake committed by the counsel and it being well settled principle of law that a party should not suffer on account of the fault of the counsel, this Court proceeds with the disposal of the instant proceedings without taking cognizance of such a mistake.

4. The supervisory jurisdiction of this Court has been invoked under Article 227 of the Constitution challenging the order dated 18.07.2024 passed by the learned Court of the Civil Judge Page No.# 6/10

(Senior Division) No.1, Kamrup (M) at Guwahati whereby an application filed under Sections 137 & 138 of the Indian Evidence Act, 1872 read with Section 151 of the Code of Civil Procedure, 1908 (for short, 'the Code') for re-examination of the DW1 was rejected.

5. From the materials on record, it is seen that the respondents herein had filed an application under Order XXXIX Rule 2A of the Code alleging violation of an order dated 28.02.2018 by the petitioner passed in Misc.(J) Case No.100/2018 arising out of Title Suit No.50/2017. In the said proceedings, the respondents had adduced evidence. The petitioner herein who was the opposite party in the said proceedings had also adduced evidence. The cross-examination of the petitioner was done at the residence of the petitioner after the learned Trial Court had issued a Commission. The said cross- examination was carried out on 28.07.2023. At that point of time, the petitioner herein did not have an opportunity to seek re- examination as the Commissioner did not have the power to permit re-examination. It is under such circumstances, on 02.08.2023, the application was filed under Sections 137 & 138 of the Indian Evidence Act, 1872 read with Section 151 of the Code seeking re-examination of the petitioner. Upon filing of the said application, the respondents herein had filed written Page No.# 7/10

objection.

6. The learned Trial Court vide the impugned order dated 18.07.2024 rejected the said application on the ground that the application so filed by the petitioner seeking re-examination did not specify what doubts and discrepancies were required to be clarified through re-examination, and as such, rejected the same. It is under such circumstances, the present proceedings have been initiated.

7. I have heard the learned counsels appearing on behalf of the parties and have given an anxious consideration to the materials on record.

8. The right to re-examine the witness by the party calling the witness is inherent. It is settled position of law that if there is a requirement to seek certain clarifications as regards any doubts and discrepancies, the learned Court before whom the cross- examination is being conducted is required to give an opportunity to the party calling the witness to re-examine his or her witness. It is also well settled that in the process of re- examination, if any additional materials are stated with the leave of the Court, the party who had earlier cross-examined would have a right to re-cross-examine the said witness. In this regard, this Court finds it relevant to refer to the judgment of the Page No.# 8/10

Supreme Court in the case of Rammi vs. State of M. P., reported in (1999) 8 SCC 649. Paragraph Nos.16, 17 & 18 are reproduced herein below:-

"16. The very purpose of re-examination is to explain matters which

have been brought down in cross-examination. Section 138 of the Evidence Act outlines the amplitude of re-examination. It reads thus:

"138. * * * Direction of re-examination.--The re-examination shall be directed to the explanation of matters referred to in cross- examination; and if new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter."

17. There is an erroneous impression that re-examination should be confined to clarification of ambiguities which have been brought down in cross-examination. No doubt, ambiguities can be resolved through re-examination. But that is not the only function of the re- examiner. If the party who called the witness feels that explanation is required for any matter referred to in cross-examination he has the liberty to put any question in re-examination to get the explanation. The Public Prosecutor should formulate his questions for that purpose. Explanation may be required either when the ambiguity remains regarding any answer elicited during cross- examination or even otherwise. If the Public Prosecutor feels that certain answers require more elucidation from the witness he has Page No.# 9/10

the freedom and the right to put such questions as he deems necessary for that purpose, subject of course to the control of the court in accordance with the other provisions. But the court cannot direct him to confine his questions to ambiguities alone which arose in cross-examination.

18. Even if the Public Prosecutor feels that new matters should be elicited from the witness he can do so, in which case the only requirement is that he must secure permission of the court. If the court thinks that such new matters are necessary for proving any material fact, courts must be liberal in granting permission to put necessary questions."

9. That being a settled principle of law, this Court finds it relevant to take note of that the petitioner herein was cross- examined on commission at his residence and the Commissioner could not have permitted the petitioner to be re-examined unless there was specific authorization given by the learned Trial Court.

10. Consequently, the petitioner filed an application on 02.08.2023. The reason for rejection vide the impugned order, in the opinion of this Court, was not proper taking into account that the right to re-examine being an inherent right upon the party calling the witness, the learned Trial Court ought not to have refused the said right by passing the impugned order.

11. Consequently, this Court interferes with the order dated 18.07.2024 and allows the petition No.5263/2023 filed by the Page No.# 10/10

petitioner seeking re-examination of the petitioner. It is observed that if any new materials or facts are mentioned during re- examination, the respondents herein would have a right to cross- examine the petitioner.

12. It has been brought to the attention of this Court that the next date is fixed in the suit as well as in the proceedings under Order XXXIX Rule 2A of the Code on 24.04.2025. The parties herein who are duly represented shall draw the attention of the learned Trial Court of the instant order so passed and the learned Trial Court shall pass appropriate orders in that regard and proceed with the disposal of the proceedings in the manner observed herein above.

JUDGE

Comparing Assistant