Pronoy Ranjan Borgohain vs Alpana Lahon

Heard Sri BD Deka, learned counsel for the petitioner.

Considering the nature of the dispute and also the fact that the original title suit is of the year 2013, this Court proposes to dispose of the present

petition at the admission stage.

The present petitioner is the defendant in the Title Suit which was instituted for ejectment of the tenant. The petitioner had contested the suit and

had also taken the defence of deposit of rent in the Court in various NJ cases after the rent which was tendered to the landlord was refused to be

received. However, while adducing evidence, the documents of certain NJ cases could not be exhibited as those were untraceable at that point of

time. However, subsequently on being able to trace out the same, the petitioner had filed two applications before the learned Court of Munsiff,

Charaideo, the first for calling the Sheristadar of the Court to prove the NJ cases and the second for allowing the petitioner to produce additional

evidence by invoking the provision under Order XVIII Rule 17 A of the Code of Civil Procedure (CPC). While the first petition was numbered as

Petition No.396/2017, the second was numbered as Petition No.118/2017.

The learned court of the Munsiff, Charaideo vide separate orders, dated 11.05.2017 and 1. 06.2017 had rejected both the petitions. So far as the

first petition is concerned, the learned Court had held that since the suit was pending at the stage of hearing of the defendant’s side on the petition

to produce additional evidence, the stage of calling for the Sheristadar was not there and accordingly the same was rejected. On the other hand,

Petition No.118/2017 has been rejected on the ground that the provision of law, namely, Order XVIII Rule 17 A of the CPC stood repealed w.e.f.

01.07.2002 and in absence of such power, the petition could not be entertained. It is the validity and legality of the aforesaid orders which have been

challenged in this petition.

I have heard Sri BD Deka, learned counsel for the petitioner. Although notice to the respondent is served, none has appeared and in fact, this Court

vide an earlier order dated 20.11.2019 had recorded that service on the sole respondent is complete. This Court has also noted that while issuing notice

vide order dated 01.09.2017, further proceeding in the connected Title Suit No.1/2013 pending before the Court of learned Munsiff, Charaideo was

stayed and the same interim order is continuing till date.

Sri Deka, learned counsel for the petitioner has submitted that both the impugned orders are cryptic in nature. He submits that while Petition

No.396/2017 has been rejected on the ground that the Petition No.118/2017 is pending while the said Petition No.118/2017 has been rejected vide the

order dated 01.06.2017 on a mere technical ground that provision of law which was quoted in the petition was repealed w.e.f. 01.07.2002. The learned

counsel has submitted that due to inadvertence, a repealed provision of law may be quoted in a petition which however cannot be the sole reason for

rejecting a petition without assigning any other ground when the Court is empowered by Section 151 of the CPC to pass any such order which in the

opinion of the Court is required to be passed for the interest of justice. He further submits that not quoting or wrong quoting of a provision of law

cannot be the reason for rejecting of a petition when otherwise the contents of the petition are comprehendible.

In support of his submission, the learned counsel has relied upon a decision of the Hon’ble Supreme Court passed in the case of KK Velusamy

â€"vs- N Palanisamy reported in 2011 (2) SCC 667 and further a case of this Court passed in CRP No.156/2012 decided on 24.05.2016 ( Sri

Rameswar Bora & Ors â€"vs- Md. Mannaf Ali & Ors) respectively.

In the case of KK Velusamy (supra), the Hon’ble Supreme Court has observed in paragraphs 11 and 12 which are as follows:

“11. The Code earlier had a specific provision in Order 18 Rule 17A for production of evidence not previously known or the evidence

which could not be produced despite due diligence. It enabled the court to permit a party to produce any evidence even at a late stage, after

the conclusion of his evidence if he satisfied the court that even after the exercise of due diligence, the evidence was not within his

knowledge and could not be produced by him when he was leading the evidence. That provision was deleted with effect from 1.7.2002. The

deletion of the said provision does not mean that no evidence can be received at all, after a party closes his evidence. It only means that the

amended structure of the Code found no need for such a provision, as the amended Code contemplated little or no time gap between

completion of evidence and commencement and conclusion of arguments. Another reason for its deletion was the misuse thereof by the

parties to prolong the proceedings under the pretext of discovery of new evidence.

The amended provisions of the Code contemplate and expect a trial court to hear the arguments immediately after the completion of

evidence and then proceed to judgment. Therefore, it was unnecessary to have an express provision for re-opening the evidence to examine

a fresh witness or for recalling any witness for further examination. But if there is a time gap between the completion of evidence and

hearing of the arguments, for whatsoever reason, and if in that interregnum, a party comes across some evidence which he could not lay his

hands earlier, or some evidence in regard to the conduct or action of the other party comes into existence, the court may in exercise of its

inherent power under section 151 of the Code, permit the production of such evidence if it is relevant and necessary in the interest of

justice, subject to such terms as the court may deem fit to impose.â€​

This High Court in the case of Sri Rameswar Bora (supra) in paragraph 5 has laid down as follows:

“5. Although the petitioner herein filed the application before the learned trial court under Section 151 of the CPC but the same was an

application under Section 47 of the Code for all intents and purposes. An application has to be decided on the basis of the contents

contained in it and not by the cause title or the name given to it. Even wrong quoting of a section may not disentitle a party if he is otherwise

entitled to the relief. The learned trial court ought to have considered the application under Section 151 of the Code as an application

under Section 47 of the CPC and thereupon was required to enquire into the matter as to whether allegation of the judgment debtor of

being dispossessed from excess land is correct or not. If the decree holder has taken more than the decretal land, in that event, he is liable

to report the same to the judgment debtor and this can be ascertained only after a survey commission is appointed and other evidence is led

to show that excess land has been given to the decree holder. The learned Executing Court did not hold any enquiry and thus fell in

jurisdictional error. The application, accordingly, is liable to be allowed. It is accordingly allowed. The impugned order dated 29.02.2012

is hereby set aside.â€​

As has been held above, inspite of service of notice, the respondent has chosen not to contest this case.

After considering the submission of the learned counsel for the petitioner and by following the law laid down by the Hon’ble Supreme Court as

well as by this Court, I find sufficient force in the submission made by the learned counsel for the petitioner. This Court is of the opinion that both the

orders are unsustainable in law as the grounds on which the orders have been passed does not appear to be reasonable in accordance with law.

Though the order passed in the Petition No.396/2017, dated 11.05.2017 is on a prior point of time by citing the ground that the stage of allowing the

Sheristadar of the Court to appear as official witness had not come because the other petition No.118/2017 was pending, rejection of the said petition

vide order dated 01.06.2017 on a mere technical ground appears to be completely unjustified whereby the petitioner is put to legal prejudice.

In view of the above, both the orders impugned are set aside and the matter is remanded back to the learned Munsiff, Charaideo to decide both

the petitions afresh in accordance with law and by adhering to the observations made in this order.

The petition is accordingly allowed as indicated above. No order as to cost.