RAMJI PANDEY Vs. JAYANTI MAJUMDAR

JUDGEMENT

(1.) This writ application is directed against the order dated 26-11-2005 passed by the learned Civil Judge (Sr. Division), Sambalpur in T.S. No. 61 of 1994 rejecting the petition filed by the petitioner who is defendant before the trial Court issuing summon to the bank authority to prove that the witness Motindra Nath Majumdar is drawing his pension from the State Bank of India, Khetrajpur Branch every month.

(2.) The opposite party had filed the aforesaid suit for eviction of the petitioner from the suit premises. In course of hearing of the suit, the petitioner filed an application under Order 1, Rule 10 C.P.C. to implead Smt. Subarna Mazumdar, D/o Manmath Nath Mazumdar as a party to the suit. The case of the petitioner in the said petition is that Manmath Nath Mazumdar was the landlord and he had executed a registered lease deed in respect of the suit premises in favour of the petitioner for a period of 50 years and was accepting rent from him. The opposite party filed objection to the said petition stating therein that Manmath Nath Mazumdar had left Sambalpur more than 14 to 15 years back and his whereabouts is not known. She also disputed the allegation that Subarna Mazumdar is the daughter of Motindranath Mazumdar. In view of such stand taken in the objection, the petitioner filed an application on 5-12-2003 to issue summon to one Motindranath Mazumdar who is the brother of the Manmath Mazumdar. Though summons were issued to the said witness, he refused to accept the summon as is evident from the report of the process server. The petitioner filed an application on 7-4-2004 to issue warrant against the said witness and an objection to the said application was filed by the opposite party stating therein that the said witness who is brother of the opposite party had left Sambalpur nine years back due to family dispute and his whereabouts is also not known. However, the trial Court issued warrant against the said witness but the same was not served and report of the process server indicates that the said witness was not available in the house and his elder sister stated that the witness had left home sometime back. Thereafter, coming to know that the said witness is drawing his pension from the State Bank of India every month, the petitioner again filed an application to issue summon against the concerned officer of the State Bank of India to prove such allegation and the said application having been rejected in the impugned order, the present writ application has been filed.

(3.) Shri Dutta, the learned counsel appearing for the petitioner drew attention of this Court to both the service returns and submitted that summons issued to the said witness was refused to be accepted on 10-3-2004 and again a warrant was issued against the said witness and returned un-served on 22-7-2005. From the report of the process server it appears that the said witness refused to accept the summon and the elder sister of the said witness also refused to accept the warrant on the ground that the said witness had left home sometime back. Referring to the aforesaid service returns, it was contended by the learned counsel for the petitioner that allegation that the witness had left Sambalpur 8 to 9 years back, cannot be accepted to be correct since he himself refused to receive the notice on 10-3-2004. Apart from the above, it was contended by Shri Dutta that this witness being an important witness, the trial Court should have summoned one of the officer of the State Bank of India to prove that the said witness comes to the bank for receiving his pension every month and is available at Sambalpur.