YANGZILA BHUTIANI Vs. NAURATANMAL ASHOK KUMAR
HIGH COURT OF SIKKIM
NAURATANMAL ASHOK KUMAR
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Dinakaran, J. -
(1.) THIS Revision is against the orders dated 05.10.2007 and 11.11.2008 of the learned District Judge, East and North Sikkim at Gangtok in T.S. No. 1 of 2003, renumbered as Eviction Suit No. 19 of 2005. The orders dated 05.10.2007 and 11.11.2008 reads as hereunder:
"5.10.07 Plaintiff present with Ld. Counsel Shri S. Majumdar with Ld. Counsel Kalpana Moktan. Defendant No. 2 present with Ld. Counsel Shri J.K. Chandak. Today the date is fixed for hearing of application under VIII rule 9 r/w Sec. 151 of C.P.C., application Under order 23 r/w Sec. 151 of C.P.C., filing the list of witness by the defendant and also for filing of evidence in chief by defendant No. 2. Hearing of the matter could not be taken up as the defendant no. 2 files application for adjournment on the ground that his counsel Shri Bijay Saha could not appear today due to migraine pain. Heard and Considered. Adjournment is allowed. For hearing of application under VIII rule 9 r/w Sec. 151 of C.P.C., application Under order 23 r/w Sec. 151 of C.P.C., filing the list of witness by the defendant and also for filing of evidence in chief by defendant No. 2. To: 20.11.07. Sd/- (S.W. Lepcha) District Judge, E & N."
"11.11.08 Plaintiff present through ld. Counsel Shri S. Majumdar. Defendant present through ld. Counsel Shri J.K. Chandak. Vide orders of this Court dated 12.04.2007, it is recorded as follows:
"Ld. Counsel for the defendant submits that the defendant has filed application under Order VIII Rule 9 r/w Section 151 of the C.P.C. on 21.8.2006 to which the plaintiff has not filed any objection till today. He thus contends that since the plaintiff has not filed reply within 90 das the matter may be fixed for hearing exparte."
However, the order dated 20.11.2007 reflects the following interalia:
"Defendant No. 2 filed an affidavit on evidence in his counter claim. Copy served on the plaintiff side." THIS order therefore indicates that leave to file counter claim by the defendant was allowed by the Court and no party can therefore raise the issue as the matter has already been settled. Now the plaintiff submits that on 10.03.2008 he had filed an application under Order IX Rule 7 read with Section 151 C.P.C. and also in another application U/S 151 of C.P.C. for expulsion of issue No. 8. Now to come up for (i) hearing on the application under Order IX read with Section 151 of the C.P.C. and (ii) hearing on the application U/S 151 of C.P.C. both filed by the plaintiff. To: 10.03.2009. Sd/- 11/11/08 (Meenakshi M. Rai) District Judge (E&N)"
(2.) BY order dated 05.10.2007, the matter was adjourned for filing of the list of witnesses as the counsel for the second respondent could not appear on that date due to migraine pain.
By order dated 11.11.2008 the application filed by the Respondent to raise counter claim was allowed. But all for, Mr. S. Majumdar, learned counsel for the Revision Petitioner submits that the Revision Petitioner/Plaintiff should be given an opportunity to file written statement to the counter claim filed by the Respondent/ Defendant and allowed by the learned trial Court on 11.11.2008.
Mr. Gulshan Rai Nagpal, learned Counsel appearing for the Respondents/Defendants submits that by taking time for filing written statement to the counter claim, the Revision Petitioner should not be protracted the proceedings.
(3.) IN this regard, Mr. S. Majumdar, learned Counsel appearing for the Revision Petitioner, on instructions from the Revision Petitioner, thus submits that he only requires four weeks time to file written statement to the counter claim filed by the respondents/defendants and the Revision Petitioner has also made an endorsement to that effect and is also counter signed by the learned Counsel for the parties, which reads as hereunder:
"I undertake to file written statement against the counter claim of the defendant within the time allowed by this Honourable Court. Sd/- 4/10/10 (Illegible) Sd/- 4/10/2010 (Sudipto Majumdar) Advocate Sd/- 4/10/2010 (Gulshan Rai Nagpal) Advocate for respondent."
In that view of the matter, suffice it to permit the Revision Petitioner to file a written statement to the counter claim filed by the Respondents/Defendants before 10.11.2010. If it is required, thereafter, the Respondents/Defendants are permitted to file rejoinder within two weeks thereafter i.e. on or before 24.11.2010 and thereafter on or before 15.12.2010 both the parties shall file their list of witnesses. The trial Court shall take up the matter for trial on day to day basis, and pass appropriate decree in the suit within two months thereafter as per the schedule mentioned above.;
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