IMTIAZ HUSSAIN vs AJIT GOGOI

Heard Mr. B. Das, learned counsel for the petitioner.

The respondent, as the plaintiff, had filed a suit for specific performance of agreement for sale in the court of the learned Civil Judge, Dibrugarh,

wherein the same was registered as Title Suit No. 49/2006. In short, it is pleaded in the plaint that an agreement for sale was entered into on

23.04.2001 for sale of a plot of land measuring 1 Katha of Dag No. 21 of Periodic Patta No. 44 at Chiring Chapari, Dibrugarh, for a

consideration amount of Rs. 3,65,000.00 and despite payment of the entire consideration amount, the sale deed was not executed.

By this application under Article 227 of the Constitution of India, the petitioner/defendant No. 2 challenges the order dated 18.11.2017, by

which the learned Civil Judge, Dibrugarh, rejected the prayer of the petitioner for grant of further time to submit evidence-in-chief.

The father of the petitioner was the defendant No. 1 in the suit. Defendant No. 1 having expired, his wife (mother of the present petitioner) was

substituted. Written statement was filed by defendants. It is submitted by Mr. Das that the substituted defendant No. 1 did not file any separate

written statement.

On 18.11.2017, a petition was filed on behalf of the petitioner stating that the evidence on affidavit could not be filed as the petitioner had gone

to Nepal for eye treatment of his mother, who recently had an eye operation and had been suffering from post-operative eye infection.

Accordingly, prayer was made for fixing another date for filing evidence on affidavit.

It appears from the impugned order dated 18.11.2017 that the suit was once decreed ex parte. It also appears there from that the ex parte

decree was set aside with specific terms and conditions.

The impugned order dated 18.11.2017 further goes to show that on 15.7.2017, the Court had directed the defendant to submit the evidence-

in-chief with copy to the other side before the next date fixed so that cross-examination of DWs could be recorded by the Advocate

Commissioner. The order was not complied with. The aforesaid order also goes to show that on 4.8.2017 and 16.9.2017 the petitioner had filed

similar petitions for grant of time to submit evidence. The learned trial court observed in the impugned order that though such petitions did not really

merit grant of further time, in the interest of justice, further opportunity was granted to the defendant to submit his evidence but such opportunity

was not availed of by the petitioner.

The petitioner has not enclosed with the petition the order by which the ex parte decree was set aside with specific terms and conditions. Such

terms and conditions are also not mentioned in the petition. The learned counsel for the petitioner is also unable to apprise the Court when the first

date for filing of the evidence of defendant was fixed.

The petitioner has annexed in this petition a certificate dated 13.11.2017 of the Out- Patient Department, Assam Medical College and Hospital,

issued by a Refractionist stating that the mother of the petitioner was diagnosed as having post-operative endophthalmitis(?) of left eye and that she

is referred to higher centre for further management. Materials on record do not disclose when the eye-operation of the mother of the petitioner was

performed. It is important to note that in the petition dated 18.11.2017, it was mentioned that mother of the petitioner had been operated upon

recently and that on the ground of illness of the mother of the petitioner, the petitioner was praying for time all along to file evidence on affidavit.

Even if it is assumed that on 18.11.2017 the petitioner was not in Dibrugarh, he having taken his mother for treatment to Nepal, the petitioner was

very much present at Dibrugarh till 3/4 days prior to the date fixed. Having regard to the progression of the case, if the petitioner was really

interested to file evidence on affidavit, he ought to have made ready his evidence on affidavit to be filed on 18.11.2017.

The learned trial court, in the considered opinion of the Court, did not commit any jurisdictional error in taking a view that the defendant was

very casual in dealing with the proceeding and that allowing further time would amount to miscarriage of justice. As noticed earlier, the suit was

instituted in the year 2006. It appears to the court that the petitioner is trying to protract the litigation.

Accordingly, I do not find any good ground to interfere with the impugned order.

Resultantly, the Revision Petition is dismissed at the motion hearing without notice to the respondent.