HARESWAR ROY Vs. MUSTT MONOWARA BEGUM

JUDGEMENT

(1.) THE opposite party herein instituted Title Suit No. 22/2000, with the present petitioner and one Nazrul Hoque, as defendant Nos. 1 and 2 respectively, seeking, inter alia, declaration that the sale deed, whereby the present petitioner had purchased the suit land from defendant No. 2, Nazrul Hoque, was collusive and illegal and also for declaration of the plaintiff's right, title and interest over the suit property. The opposite-party herein also filed, in the said suit, an application under Order XXXIX Rules 1 and 2, read with Section 151 of the Code of Civil Procedure (in short, the Code'), praying for grant of temporary injunction restraining the defendants, their agents, servants, workmen, etc. , from entering into the suit land and disturbing the plaintiff-respondent's peaceful possession of the suit land till disposal of the suit. This application for injunction, filed by the opposite-party herein, gave rise to Misc. (J) Case No. 10/2000, wherein an order was passed directing the parties to maintain status due until further order. Having received objection to the application for temporary injunction, which the plaintiff had filed, learned Civil Judge (Senior Division), Bongaigaon, passed an order, on 10. 10. 2002, making the said interim order absolute, till disposal of the suit, by directing the parties to maintain status quo, as directed earlier, till disposal of the suit. While making the interim order aforementioned abosolute, learned trial Court observed that it was an admitted case of the parties that the possession of the land was with the plaintiff. This apart, the order, dated 10. 10. 2002, was never put to challenge and the order, thus, survived. Thereafter, the plaintiff (opposite party herein) filed a petition under Order 39 Rule 2a of the Code, in the Court of Munsiff, North Salmara, Abhyapuri, alleging, inter alia, that, on 02. 10. 2008, at about 8. 30 a. m. , the petitioner herein along with others had, armed with deadly weapons, trespassed into the suit land and started cultivating the same and, on witnessing the same, when the plaintiff and her men rushed to the suit land, they were attempted to be assaulted, and, apprehending danger to their lives, the plaintiff and her men retreated. Thus, the plaintiff-opposite party herein alleged that the present petitioner had violated the injunction, which had been granted by order, dated 10. 10. 2002, aforementioned. This application, filed by the plaintiff, gave rise to Misc. (J) Case No. 16/2008.

(2.) THE petitioner herein, upon receipt of notice in Misc. (J) Case No. 16/2008 aforementioned, took adjournments, on 30. 07. 2008, 15. 08. 2008, 22. 09. 2008 and 11. 11. 2008, to file his objection in the said case. Eventually, on 03. 12. 2008, a petition was filed by the present petitioner seeking time for filing his objection on the ground that his advocate was lying ill. The learned Munsiff, however, passed an order, on 03. 12. 2008, rejecting the prayer for adjournment on the ground that repeated adjournments would cause delay in the trial and, therefore, fixed the said case, on 07. 01. 2009, for hearing. On the date, so fixed, i. e. , on 07. 01. 2009, both the parties submitted that they would not adduce any evidence. The Misc. (J) Case No. 16/2008 accordingly came to be fixed for hearing on 04. 02. 2009. Thereafter, an application under Section 151 of the Code was filed by the present petitioner stating to the effect, inter alia, that on 03. 12. 2008, he could not file his objection due to the fact that his counsel had made an incorrect entry in his diary as regards the date of the case and, hence, he may be allowed to file his objection in the said proceeding, or else, he would suffer irreparable loss. The learned Munsiff, vide order, dated 04. 02. 2009, admitted the petition for hearing and fixed the case on 15. 02. 2009. An objection was, then, filed by the plaintiff to the prayer so made by the defendant-petitioner. After hearing the learned counsel for both the parties, the learned Court below passed an order, on 23. 06. 2009, rejecting the prayer made by the defendant-petitioner. Aggrieved by the order, dated 23. 06. 2009, aforementioned, the defendant has, now, filed this revision petition.

(3.) IT is submitted, on behalf of the defendant No. 1 - petitioner, that an application under Order 39 Rule 2a gives rise to a proceeding' and the provisions of Order 17, which relates to granting of time or adjournments in suits, are not applicable to a proceeding; and, hence, mereby because of the fact the defendant (present petitioner) had already obtained, in order to file his objection in the said proceeding, as many as four adjournments in the past, the defendant's (i. e. , the present petitioner's) prayer for allowing him time to file his objection, in the said proceeding, could not have been legally rejected.