KAMALA BALA BALA Vs. BASUDEB KHANRA

JUDGEMENT

(1.) THE instant revisional application under Article 227 of the Constitution of India is directed against the order no. 166 dated 21st July, 2011 and also order no. 168 dated 17th September, 2011, both passed by Ld. Civil Judge, Junior Division, 3rd Court at Midnapur in Title Suit no. 98 of 1992. The case of petitioner is in short that the Opposite Party no. 1 as plaintiff instituted Title Suit no. 98 of 1992 before the Ld. Civil Judge, Junior Division, 3rd Court at Midnapur, against the present petitioner and Opposite Party nos. 2 to 21 praying for decree of partition in respect of 'Ka' and 'Kha' schedule property. The petitioner and some other defendants have entered appearance in the suit and filed separate written statements supporting in respect of their respective cases. On 17th March 2009 the petitioner filed her examination in chief.

(2.) THAT on 22nd March, 2011 was fixed for evidence of witness of the defendants and on that day evidence of the defendants was closed. That on 21st July, 2011 the petitioner filed an application praying to allow her to adduce evidence. The Ld. Civil Judge, Junior Division, 3rd Court at Midnapur, has been pleased to reject that application with an observation that since 21st June, 2010 the Ld. Advocate of the petitioner has not pressed the affidavit in chief by endorsing the same that he shall not tender the affidavit in evidence. Subsequently, on 17th September, 2011, the petitioner filed an application contending that the petitioner never instructed her Ld. Advocate to not press the examination in chief is required to be recalled, and the petitioner is required to be allowed to adduce the evidence. On 17th September, 2011 Ld. Civil Judge, Junior Division, 3rd Court at Midnapur had pleased to reject the said application. Being aggrieved and dissatisfied with the order no. 166 dated 21st July, 2011 and order no. 168 dated 17th September, 2011, passed in Title Suit no. 98 of 1992, the petitioner has preferred instant revision application on the grounds that the Ld. Trial Judge acted illegally with material irregularity in rejecting the application for recalling the affidavit in chief by the petitioner and allow the petitioner to adduce evidence on a misconception of law inasmuch as Ld. Judge has not considered the specific averments made in the petition filed on 17th September, 2011 to the effect that the petitioner never instructed her Ld. Advocate not to press the affidavit in chief filed on behalf and the Ld. Judge ought to have allowed the said application by holding that the action taken by the Ld. Advocate without jurisdiction and further that Ld. Judge in a Trial Court acted illegally and with material irregularity in rejecting the application for recalling the affidavit in chief filed by the petitioner and allow the petitioner to adduce the evidence on a misconception of law inasmuch as since the petitioner had no knowledge at the earlier Advocate has not pressed the affidavit in chief in application dated 21st July, 2011, the petitioner only prayed to allow her to adduce the evidence and when such application was rejected on the ground that affidavit in chief has already been not pressed, the petitioner has filed the application dated 17th September, 2011 and the Ld. Judge ought to have allowed the same.

(3.) IN reply Ld. Advocate for the O.P.s raised strong objection and submitted that it is a case of 1992 and the petitioner was slept over the matter and never attended day to day Court proceeding, and finally as per her instruction her engaged lawyer intimated the Court that she is not pressing her affidavit in chief filed earlier. Considering the facts and circumstances of the case and also the submission from the Ld. Advocates of both the parties, fact remains the case of the year 1992. Ld. Court below has rejected the petition for recalling of the affidavit filed by the petitioner simply on the ground that her Ld. Advocate endorsed the same as not pressed. The second petitioner has also been rejected on the ground that the prayer is the identical as prayed in the earlier petition. Then nothing to transfer from the submission from the Ld. Advocates for both the parties as well as on the record that the present petitioner was reluctant to attend the day to day proceeding of the Court, and finally she instructed her lawyer to not press the affidavit. It is a matter of evidence to ascertain whether the petitioner instructed her lawyer to not press the affidavit or her lawyer endorsed the affidavit in chief has not pressed exceeding his jurisdiction.