DAKSHINPAT SATRA AND ORS. Vs. MOHANLAL BIYANI AND ANR.
HIGH COURT OF GAUHATI
Dakshinpat Satra And Ors.
Mohanlal Biyani And Anr.
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Baharul Islam, J. -
(1.) THIS is an application under Section 476 of the Code of Criminal Procedure. There are three petitioners. Petitioner No. 1 is a Satra, petitioner No. 2 is the Satradhikar of the Satra. and petitioner No. 3 is the alleged lessee of the Satra.
(2.) THE facts of the case, briefly, are as follows:
The petitioners, as plaintiffs, instituted Title Suit No. 21 of 1971 in the Court of the Assistant District Judge, Jorhat, against opposite party No. 2, M/s. Kothari Plantations and Industries Ltd -for restoration of Khas possession of the suit properties after evicting the defendant therefrom, for compensation and for appointment of a Receiver. Opposite party No. 2 filed a written statement and contested the suit. In the suit the petitioners filed an application on 31 -1 -1972 under Order 40, Rule 1 of the Code of Civil Procedure for appointment of a Receiver on the allegation that there was deterioration of the tea bushes for want of proper care, cultivation and manuring, for removal of seedlings and fencing, illegally felling and selling of trees from the suit land. The Assistant District Judge was hearing the application for appointment of Receiver. The petitioners examined six witnesses in support of their case for appointment of a Receiver on four dates, namely 26 -6 -1972, 27 -6 -1972, 18 -7 -1972 and 10 -8 -1972. The next date of hearing was fixed on 11 -11 -1972, but the hearing was adjourned first till 18 -11 -1972 and then again till 22 -11 -1972, both at the request of opposite party No. 2. On 21 -11 -1972 the petitioners filed an application dated 18 -11 -1972 and served a cow thereof on counsel for opposite party No. 2. In that application they prayed for hearing argument and for passing "without further delay" an order appointing a Receiver. On 22 -11 -1972 opposite party No. 2 examined two witnesses who were cross -examined by the petitioners and the case was fixed on 27 -11 -1972 for hearing of the aforesaid petition as well as the objection of defendant No. 2 thereto. On 27 -11 -1972 both parties appeared and the petition dated 18 -11 -1972 was heard and the case was adjourned till 30 -11 -1972 for orders.
On 27 -11 -1972 opposite party No. 1 filed an application before this Court under Sections 24 and 151 of the Code of Civil Procedure for transfer of the suit, namely Title Suit No. 21 of 1971, from the Court of the Assistant District Judge, Jorhat, to any other Court of any other District. That application was registered as Civil Misc. Case No. 3 of 1972. The application was heard and disposed of by the learned Chief Justice on 27 -11 -1972. The application was rejected.
3 -A. A copy of the transfer petition has been annexed to this petition and marked as Annexure 'C'. That application was supported by an affidavit sworn by opposite party No. 1. It is alleged by the petitioners that in that petition in paras 22, 29 and 33 the opposite parties made false allegations and have perjured in the Court and are liable to prosecution for offence under Section 193 of the Indian Penal Code. The aforesaid three paragraphs may be quoted:
22. That on 18 -11 -1972 the plaintiff opposite parties filed an application without giving any copy on that day to the learned Court requesting him not to allow the petitioner to Rive any evidence and pass orders immediately for appointment of receiver.
29. That the defendant petitioner has now come to learn that the plaintiff opposite party No. 3. Shri Makhan Chandra Savapandit who is said to be appointed lessee by the plaintiffs 1 and 2 is the great friend of the present Assistant District Judge and the defendant petitioner apprehends that they will not Ret a fair trial.
33. That on 22 -11 -72 the learned Assistant District Judge openly expressed that defendant petitioner is merely a trespasser and has no right to stay for a moment. In face of the attitude of the learned Assistant District Judge, the defendant -petitioner's lawyer felt quite helpless and the defendant apprehends that the defendant will not get any fair trial of the suit.
The petitioners state that no application was filed on behalf of the petitioners on 18 -11 -72 as stated in para. 22 of the transfer petition. They also state that they did not file any application requesting the Court "not to allow the petitioner to give any evidence and pass orders immediately for appointment of Receiver". They allege that on 21 -11 -72 the petitioners filed an application dated 18 -11 -72 which was numbered as petition No. 2640 and a copy of the said application was duly served on the opposite party No. 2 on 21 -11 -72, and that there was no prayer in that application for stopping the opposite party No. 2 from giving evidence or for passing orders immediately for appointment of a Receiver. With regard to the allegations made in para. 29 of the transfer petition the petitioner state that not to speak of petitioner No. 3 and the Assistant District Judge. Shri R. Hussain being great friends, the petitioner No. 3 had or has no acquaintance with Shri R. Hussain at all. With regard to the allegations made in para, 33 of the transfer petition the petitioners state that the Assistant District Judge did not at any stage of the proceeding express the view that "defendant petitioner is merely a trespasser and has no right to stay for a moment." According to the petitioners the allegations made by the opposite partes were deliberately false and perpetrated with a view to setting transfer of the suit from the Court of Shri R. Hussain, learned Assistant District Judge before whom the suit was pending.
(3.) AT the outset Shri P. Choudhury. learned Counsel appearing for the opposite parties, raises two preliminary objections. He first submits that this Court has no jurisdiction to hear the present application and that it can be heard only by the learned Chief Justice who heard the transfer petition and before whom the alleged perjury was committed. On the contrary Shri B. C. Barua learned Counsel for the petitioners, submits that there is no bar for any Bench of this High Court to hear this application.;
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