RSA 278/2014. Case: Prabhat Chandra Malakar Vs Hafida Begum. Guwahati High Court
| Case Number | RSA 278/2014 |
| Counsel | For Appellant: S. Medhi and Sheeladitya, Advocates and For Respondents: None appears |
| Judges | Nishitendu Chaudhury, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order XLI Rule 11(1); Section 100 |
| Judgement Date | November 12, 2014 |
| Court | Guwahati High Court |
Judgment:
Nishitendu Chaudhury, J.
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Heard Mr. Sheeladitya, learned counsel for the appellant.
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This second appeal is directed against the concurrent findings of the learned courts below arising out of Money Suit No. 228/2007.
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Plaintiff Prabhat Chandra Malakar instituted Money Suit No. 228/2007 stating that defendant No. 1 Musstt. Hafida Begum is a next door neighbour. She filed a complaint before Legal Services Authority alleging that plaintiff made illegal construction resulting in prejudice to her. The Legal Services Authority issued notice to the plaintiff and the Proforma Defendant along with an order dated 26.11.2005 in the case. Plaintiff challenged the proceeding before the High Court by invoking writ jurisdiction in WP(C) No. 4121/2005 and this Court by order dated 27.03.2006 allowed the writ petition quashing the proceeding. The plaintiff therefore claimed a decree of Rs. 1 lakh against the defendant No. 1 as damage and compensation. The defendant No. 1 submitted written statement denying the case of the plaintiff and pleaded that plaintiff constructed RCC building without keeping sufficient space in between the house of the defendant and the said RCC building, as a result of which rain water used to fall in the premises of the defendant causing water stagnation and thus defendant was seriously inconvenienced. To resolve the matter amicably, the defendant appeared before the authority under the Legal Services Authority Act, 1987 (as amended) and prayed for appropriate order. In paragraph 11 of the written statement the defendant specifically claimed that a total of 122 similar cases pending before the authority under the Legal Services Authority Act were transferred to Permanent Lok Adalat which included the complaint filed by the defendant. The defendant therefore prayed that the suit be dismissed with cost.
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The learned trial Court framed two issues as follows:
1. Whether the suit is maintainable in law?
2. Whether the plaintiff is entitled to get the decree as prayed for?
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Plaintiff adduced evidence of two witnesses and proved documents. The defendant examined herself only as DW1. The learned trial Court after considering the materials on record held that the suit was not maintainable and so dismissed the same by judgment and decree dated 19.02.2012. Aggrieved appellant approached learned Civil Judge No. 2, Kamrup at Guwahati vide Money Appeal No. 3/2012. The learned first appellate Court after hearing both sides...
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