Plaintiffs Not Allowed To File Evidence-On-Affidavit As Matter Of Right At Belated Stage After Repeated Adjournments: Gauhati High Court

The High Court was considering a petition filed under Article 227 of the Constitution read with Section 115 of the CPC, by the petitioners/plaintiffs assailing the impugned order debarring them from filing evidence and closing the evidence of the witnesses.

The Single Bench of Justice Yarenjungla Longkumer held, “No doubt, the trial court as well as this Court has the discretion to allow the plaintiffs to file their evidence even after a long period of delay. However, that discretion needs to be exercised more strictly when there has been and as in the present case, it is found that there has been 11 adjournments made by the plaintiffs/petitioners. This Court is of the view that the petitioners/plaintiffs cannot be allowed to file their evidence-on-affidavit as a matter of right at this belated stage”, it added.

Advocate N N Upadhyaya represented the Petitioner while Advocates A Pareek represented the Respondent.

Factual Background

The case as put up by the petitioner was that he had filed the Title Suit pending before the Court of the Civil Judge (Sr. Division) Dibrugarh seeking a decree for declaration that the respondent/defendant got the sale deed executed by taking advantage of the poor health and mental condition of the petitioners/plaintiffs, amongst other prayers. During the pendency of the title suit, the original plaintiff of the title suit, i.e. Sayed Maqsud Ahmed expired and therefore, the petitioners/plaintiffs being the legal heirs/wife/son/daughters of the deceased were substituted and the respondent/dependent was also the son of the deceased Sayed Maqsud Ahmed.

It was the case of the petitioners/plaintiffs that the matter was fixed for filing of PWs by the petitioners/ plaintiffs, and the Trial Court observed that the case was pending for a long time at the stage of filing of PWs, and by an earlier order, the plaintiffs were strictly directed to file the PWs on the next date. It was claimed that the plaintiffs had again filed the petition seeking adjournments to file the affidavit, which was allowed by the Trial Court and therefore, noting that the plaintiffs were absent without any steps, the order barring the plaintiffs/petitioners from filing their evidence was passed.

Being aggrieved, the petitioners/plaintiffs filed a petition under Section 151 of the CPC, praying for vacating the order and for granting an opportunity to file the plaintiffs' evidence. In the said application, the plaintiffs stated that they had engaged a new advocate to conduct the suit, and the plaintiffs were unaware of the fact that their evidence had not been filed. It was also claimed that the second plaintiff was aged 70, and the third plaintiff was suffering from depression. After hearing the parties the petition was rejected by the impugned order. Aggrieved thereby, the petitioner approached the High Court.

Reasoning

On a perusal of the facts of the case, the Bench noted that the Trial Court had granted as many as 11 adjournments to the plaintiffs/petitioners for submitting their evidence on affidavit. The Trial Court had passed 11 adjournments from the year 2022 to 2024. The Bench also explained, “This Court has to consider the conduct of the plaintiffs/petitioners and to see whether there is negligence on their part or abuse of the process or deliberate attempt to prolong the suit. Each case has to be decided on its own merits. In the cases relied upon by the petitioners, the facts and circumstances were different.”

Finding no exceptional cause shown by the plaintiffs/petitioners for the delay in the filing of their evidence-on-affidavit, the Bench further noticed that the suit was filed in the year 2019, and till the year 2024, the evidence-in-chief of the PWs was yet to be filed, even after the Court granted 11 adjournments. “As stated by the parties, the suit is now at the stage of arguments, and this Court is of the view that allowing the instant petition would not serve the interests of justice and in fact lead to prolonging the pendency of the Title Suit No. 88/2019”,it stated.

Thus, in light of the aforementioned observations, the Bench dismissed the Petition.

Cause Title: Legal Heirs Namely Mumtaz Begum v. Khurshid Ali Ahmed v. (Neutral Citation: 2026:GAU-AS:8714)

Appearance

Petitioner: Advocates N N Upadhyaya, B B Kakati, V Pandey, D K Bagchi

Respondent: Advocates A Pareek, Kaushik Jain

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