Page No.# 1/6 GAHC010271172024 2026:GAU-AS:6483 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/536/2024 SAYDA JAMILA KAZI W/O- LATE SAYED TASLIMUDDIN KAZI, R/O- HATIGAON, NEAR H M HOSPITAL, H NO-57, P.S- DISPUR, GUWAHATI, KAMRUP METRO, ASSAM VERSUS UTPAL KUMAR BAISHYA AND ANR. S/O- GHANA KANTA BAISHYA, R/O- BANPHOOL NAGAR PATH, P.S- DISPUR, GUWAHATI, KAMRUP METRO, ASSAM 2:M/S JAYBEE BUILDERS REP. BY SISHURAM NARAH S/O- LATE RAJANI KANTA NARAH R/O- VILLAGE- PANJABARI P.S- DISPUR GUWAHATI KAMRUP METRO ASSA Advocate for the Petitioner : MR M J QUADIR, MS S AHMED,MR S S ISLAM,MR. A K HANNAN Advocate for the Respondent : MR H K SARMA, Page No.# 2/6 BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA ORDER Date : 11.05.2026 Heard Mr. M.J. Quadir, learned counsel for the petitioner. Also heard Mr. H. Sharma, learned counsel for the respondent no.1. 2. None appears on behalf of respondent no.2 despite substituted service of notice through newspaper publications dated 13.03.2026 and 15.03.2026, that has been brought on record by filing an additional affidavit on 25.03.2026. As the original newspapers were not annexed, the learned counsel for the petitioner has produced the original newspapers. The same are accepted and made a part of the record. 3. By filing this application under Article 227 of the Constitution of India, the petitioner, who is the defendant no.1 in T.S. No. 216/2012, has assailed the order dated 22.10.2024, passed by the learned Civil Judge (Senior Division) No.3, Kamrup (M), Guwahati in the said suit, by which petition no. 4008/2023 filed by the petitioner-defendant no.1 for re-examination of the petitioner (DW- 1) was rejected. 4. The challenge is also made on the ground that by the said impugned order, the learned Trial Court did not allow the petitioner to produce DW-2 and DW-3 for their cross-examination and that the matter was fixed for argument without closing the evidence of DW-2 and DW-3. 5. With regard to the second prayer made in this application, which relates to the non-providing of opportunity to the petitioner to present DW-2 and DW-3, we take note of the contents of this application, where at page-75 it Page No.# 3/6 is seen that the Advocate Commissioner, who was hitherto recording the cross- examination of DW-1 has given a report to the learned Trial Court in connection with T.S. No. 216/2012, praying for extension of time, amongst others, stating that the DW-1 was cross-examined and discharged on 10.08.2023 and that the remaining DWs are yet to be cross-examined and therefore, the Advocate Commissioner had made a prayer for extension of time so that other DWs can be cross-examined. 6. It appears that upon completion of the cross-examination of DW-1 on 10.08.2023, the petitioner-defendant no.1 had filed a petition no. 4008/23 on 16.08.2023, under Section 138 of the Evidence Act, 1872 read with Section 151 of the CPC for re-examination of the DW-1. In the said petition, it is projected that during cross-examination, the petitioner as DW-1 had made a statement on 08.02.2023 regarding setting fire to the tenanted premises of the plaintiff by defendant no.2. Accordingly, it is projected by the petitioner that some explanation is required about the setting fire to the tenanted premises of the plaintiff, which arose from the cross-examination of the petitioner as DW-1, which was not the pleaded case of the parties. 7. The learned counsel for the petitioner has submitted that as the destruction of the house of respondent no.1-plaintiff by fire was not the pleaded case of either side, some clarification is required. 8. The learned counsel for respondent no.1 has opposed the prayer made in this application. 9. Insofar as the prayer for re-examination of petitioner-DW1 is concerned, it is in the course of the cross-examination that the petitioner as Page No.# 4/6 DW-1 offered an answer stating that the tenanted premises was set on fire by defendant no.2. Therefore, with the answer that is volunteered by DW-1, the learned Trial Court is found to have committed no error for refusing to re- examine the DW-1 as the point which is sought to be clarified by re-examination regarding the fire in the tenanted premises by defendant no.2, which was not the pleaded case of the petitioner in the written statement. 10. Therefore, the said part of the order, it does not require any interference. 11. It may be mentioned that this Court, by orders passed earlier, requisitioned the Trial Court records. Accordingly, the scanned copy of the records is received. 12. On perusal of the materials available in the scanned copy of the LCR, it is seen that the petitioner had filed petition no. 3554/2023 dated 24.07.2023, seeking three weeks' time for appearance of DW-1 for facing further cross- examination as well as for cross-examination of other DWs. The last cross- examination of DW-1 was recorded on 10.08.2023 and thereafter, on 16.08.2023, the learned Advocate Commissioner had submitted a report to the learned Trial Court seeking extension of time for cross-examination of further DWs. 13. In this instant application, the petitioner has suppressed the filing of petition number 3554/2023 dated 24.07.2023 and also suppressed the order dated 24.07.2023, by which the Court had granted a last chance on the petition number 3554/2023 for the appearance of DW-1 for facing further cross- examination as well as for cross-examination of other DWs. Page No.# 5/6 14. Under those facts as a last chance has already been granted, we do not find any irregularity in the learned Trial Court in closure of the DWs and to proceed with the further argument of the case. In this regard, the learned counsel for the petitioner has submitted that the Court did not pass any order to close the cross-examination. 15. In the considered opinion of the Court, as the suit was of the year 2012, where the DW-1 was facing cross-examination and the learned Trial Court had granted one last opportunity for further cross-examination of other DWs, which means that the prayer made in petition number 3554/2023 was allowed, it cannot be presumed that merely because an application is filed on 16.08.2023 for re-examination of DW-1, there was any extension of time by the learned Trial Court for further examination of DWs. 16. It would have been a different issue if the petitioner had produced the said petition number 3554/2023 dated 24.07.2023, and brought to the notice of the Court the order dated 24.07.2023. That having not been done, the Court is inclined to take a view of the suppression of the material facts, which disentitles the petitioner to any relief. 17. Accordingly, the order dated 24.07.2023, passed by the learned Trial Court, having attained finality, by which only a last chance was granted to the petitioner for facing cross-examination of DW-1 and further cross-examination of other DWs, it appears that even without a prayer for extension of time for DW-1 and to cross-examine DW-2 and DW-3, said right to produce DW-2 and DW-3 for facing cross-examination is deemed to have been waived by the petitioner and therefore, the impugned order dated 22.10.2024, fixing the date of case for argument, is not liable to be interfered with. Page No.# 6/6 18. This petition stands dismissed. 19. As both parties are represented by their learned counsel, both sides are directed to appear before the learned Civil Judge (Senior Division) No.3, Kamrup (M), Guwahati on 01.06.2026 and by producing a certified copy of the order, await for further directions that may be passed by the said learned Court. JUDGE Comparing Assistant