SHYAMAL CHOWDHURY Vs. JYOTSNA DUTTA

JUDGEMENT

(1.) -This revisional application has been preferred against the order No. 8 dated 26.5.98 passed by learned Additional District Judge, 2nd Court at Alipore in Civil Revision No. 295 of 1997 affirming the order dated 13.5.97 passed by the learned 3rd Court of the Assistant District Judge at Alipore in title suit No. 286 of 1986. This revisional application has been preferred against the order No. 8 dated 26.5.98 passed by learned Additional District Judge, 2nd Court at Alipore in Civil Revision No. 295 of 1997 affirming the order dated 13.5.97 passed by the learned 3rd Court of the Assistant District Judge at Alipore in title suit No. 286 of 1986.

(2.) The Opposite Party herein as plaintiff instituted title suit No. 286 of 1986 for declaration of title in the suit property and other reliefs. The dispute between the parties was whether the suit property standing in the name of the defendant No. 1 was purchased by the defendant himself with his own money or by the plaintiff. The peremptory hearing of the suit was fixed on 9.6.93. On 5.6.93 the plaintiff made an application before the learned trial Judge that the plaintiff and the defendant No. 1 will bind themselves to special oath before a Commissioner at Kali Temple or to Dhakeswari Mandir at Koomartooly to speak out the truth on fact in issue. The petition was opposed by the defendant contending, inter alia, that although the application is not otherwise maintainable in law as the provisions of administering special oath have been repealed and all the questions relating to the subject matter of the suit are beyond the jurisdiction of the learned Court in view of section 4 of Benami Transactions Prohibition Act, 1988, the defendant is ready and willing to affirm the statement as to payment of consideration for the purchase of the disputed plot on special oath by touching the holy feet of Sree Sree Kalimata Thakurani at Kalighat on solemn undertaking of the plaintiff that she should be bound by such statement and to suffer judgment on the basis thereof. This application along with the objection was heard and disposed of by the learned trial Judge by directing the defendant No. 1 to make the statement as to the payment of consideration money for the purchase of the disputed plot from Smt. Sipra Chatterjee on May 15, 1975 under special oath by touching the holy feet of Goddess Kalimata Thakurani at Kalighat before Local Commissioner appointed by the Court in the presence of the senior advocates of the parties and the plaintiff. Against this order the defendant preferred revisional application before the learned Additional District Judge on the ground that the Court below was not justified in allowing the prayer for administering special oath without directing the plaintiff to give undertaking in proper form that she would be bound by statement of the defendant to be given on special oath. The learned Additional District Judge disposed of the said revisional application by modifying the trial Judge's order dated 9.6.93 directing the plaintiff to file an affidavit within one month to be granted by the learned trial Court to the effect that she would be bound by special oath to be taken by the defendant and that the judgment would be passed on the basis of such statement. In default of such affidavit being sworn within the prescribed time the plaintiff's prayer for special oath by the defendant No. 1 shall stand dismissed. The plaintiff thereafter swore affidavit framing as may as 8 questions to be asked to the defendant No. 1 by the Commissioner before Goddess Kalimata and to be answered by the defendant No. 1 by touching the feet of Goddess Kali in the Temple. The affidavit was filed beyond the time fixed by the learned revisional Court. The defendant filed objection thereto. The learned trial Judge disposed of the petition and the objection by his order dated 13.5.97 whereby he condoned the delay in filing affidavit and also allowed the enlargement of questions except question No. (e) and (f). The learned trial Judge directed the defendant to answer the questions before the Commissioner appointed by the learned trial Judge. Against this order the defendant again filed revisional application which was disposed of by order dated 26.5.98 in the following manner by the learned Additional District Judge,

(3.) Against this order the instant application under Article 227 of the Constitution of India has been preferred.