Patna High Court
Md. Irfan @ Irfanul Haque vs Humaira Ayisha on 22 April, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.1212 of 2023
======================================================
Md. Irfan @ Irfanul Haque, Son of Late Wasimul Haque, Resident of
Qutubuddin Lane, Sabzibagh, P.S.- Pirbahore, District- Patna, Pin Code-
800004.
... ... Petitioner/s
Versus
Humaira Ayisha, Wife of Shakeel Qureshi, Resident of Qutubuddin Lane,
Sabzibagh, P.S.- Pirbahore, District- Patna, Pin Code- 800004.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Pramod Kumar Gayadutta, Advocate
Mr. Abinash Kumar, Advocate
Mr. Kumar Satya Kirti, Advocate
For the Respondent/s : None.
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 22-04-2025
Present learned counsel for the petitioner. However,
no one appears for the respondent. Perusal of record shows even
on the previous date of hearing, learned counsel for the
respondent sought time for filing counter affidavit along with
other relevant documents. Office note shows neither counter
affidavit nor other relevant documents have been filed by the
respondent. It seems the respondent wants to linger the matter
and, therefore, the matter is put up for hearing and disposal.
2. Heard learned counsel for the petitioner.
3. The petitioner is aggrieved by the order dated
16.10.2023
passed by the learned Sub Judge-I, Patna in Title
Eviction Suit No. 38 of 2020 whereby and whereunder the
learned trial court confirmed the order dated 16.01.2023 by
Patna High Court C.Misc. No.1212 of 2023 dt.22-04-2025
which the prayer of the plaintiffs has been allowed for
correcting the evidence of P.W.1, namely Salimmuddin.
4. The learned counsel for the petitioner submits
that the petitioner is defendant before the learned trial court in
Title Eviction Suit No. 38/2020 which has been filed by the
respondent. In the said title suit, the examination-in-chief of
P.W.1, namely Salimmuddin was filed. In paragraph 4 of the
examination-in-chief, it has been deposed by the witness that the
monthly rent has been fixed at Rs.1700/-. After filing of the
examination-in-chief by way of affidavit, an application has
been filed by the plaintiff on 05.01.2023 for correction of
typographical error in para 4 of the examination-in-chief of
P.W., namely Salimmuddin in mentioning the rent amount as
Rs.17,00/- instead of Rs. 17,000/-. The learned counsel further
submits that the learned trial court allowed the application filed
by the plaintiff and further allowed the plaintiff to correct the
figure of Rs.1700/- to Rs.17,000/- in paragraph 4 of the
deposition of P.W.1, namely Salimmuddin. Since it was a
palpably illegal order, the defendant/petitioner filed an
application for review of the said order dated 16.01.2023, but
again the learned trial court did not consider the facts and
circumstances properly and held that it allowed the amendment
in the deposition after matching the amount from the plaint. The
Patna High Court C.Misc. No.1212 of 2023 dt.22-04-2025
learned trial court further held that no new grounds have been
brought to the notice of the court for interfering with the
impugned order and holding that the court has already given the
permission for amendment which has been done and as it comes
under the purview of Order 47 Rule 4 (2) (b) of the Code of
Civil Procedure, rejected the review application filed on behalf
of the petitioner. The learned counsel further submits that both
the orders are illegal in the sense that the affidavited
examination-in-chief of P.W.1, namely Salimmuddin was
ordered to be amended on prayer being made by the plaintiff. If
there was any error in the examination-in-chief, the prayer could
have been made for recalling the witness for re-examination, but
the court considering the pleadings of plaintiff for taking a view
that the examination-in-chief should be amended is an erroneous
exercise of jurisdiction as the court was not vested with any
such power. Similarly rejection of the review application was
also without any merit as the learned trial court tried to justify
the illegality already committed vide order dated 16.01.2023.
Thus, learned counsel submits that the impugned orders are not
sustainable and the same be set aside.
5. I have given my thoughtful consideration to the
submission of the learned counsel for the petitioner and I find
merit in the contention of learned counsel for the petitioner for
Patna High Court C.Misc. No.1212 of 2023 dt.22-04-2025
the reason that if the evidence of witness has been filed on
record by way of affidavit, it is for the witness to make a prayer
for correction if the witness was not put on dock. It was not
open for the plaintiff to move application seeking correction in
the evidence of his witness because the plaintiff could not
substitute himself in place of witness though the plaintiff could
have sought reexamination of the witness to clarify this point.
But the plaintiff could not seek correction in the affidavit of
examination-in-chief in this manner. For this simple reason, the
impugned orders are completely erroneous orders and the
learned trial court refusing to review its order compounded the
confusion.
6. Therefore, the orders dated 16.01.2023 and
16.10.2023 passed by the learned Sub Judge-1, Patna in Title
Eviction Suit No. 38/2020 are set aside.
7. Accordingly, the present petition stands allowed.
(Arun Kumar Jha, J)
V.K.Pandey/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 23.04.2025
Transmission Date NA
