ORDER NO. 34 DT. 18.11.2009

          The record is placed today for passing necessary orders in respect of an affidavit filed on behalf of the DHr on 19.5.09 wherein the DHrs has prayed for issuance of warrant of arrest against one Suranjan Biswas on the ground that Bhajan Biswas and Suranjan Biswas are same and identical person. The main contention of the DHr in this regard, in brief, is that the DHr having failed to secure attendance of the JDr, namely Bhajan Biswas, has left no stone unturned to remove the discrepancy, if any, in establishing the identity of Bhajan Biswas and that Bhajan Biswas and Suranjan Biswas are same and identical person, and hence, the present affidavit has been filed for proper redressal.  Suranjan Biswas, who is contesting the contention of DHr has entered appearance and filed written objection against such affidavit filed on behalf of the DHr thereby denying all the material averments of the affidavit contending inter alia that the DHr/Petitioner has got no locus standi to institute the execution case.  The original owner having died unmarried and issueless, question of succeeding those original owners by the DHr/Petitioner does not arise at all.  The allegations put forward on behalf of the DHr that Bhajan Biswas and Suranjan Biswas are same and identical is nothing but conjecture and based on vague and imaginary aspersion.  The objector, Suranjan Biswas, along with another is contesting a civil litigation against the purported successor of the original owner in respect of the property in question and the said civil litigation is still pending.  The original execution case has been instituted against Bhajan Biswas.  There being no connection or absence of similar identity in between Bhajan Biswas and Suranjan Biswas the present affidavit in question should be dismissed with cost.

          At the time of hearing it has been submitted on behalf of the DHr/Petitioner that in this case the petitioner after prolonged persuasion has been able to establish through number of police reports that Bhajan Biswas and Suranjan Biswas are same and identical person.  Suranjan Biswas in order to avoid the pecuniary liability has so long been successful in avoiding the same by putting up various false and fictitious pretexts.  But now the cat has come out of the bag and Suranjan Biswas has been clearly depicted to be none other than Bhajan Biswas in another identity.  When there are overwhelming materials in support of the contention of the petitioner’s affidavit, the same should be accepted and necessary action be taken against Suranjan Biswas @ Bhajan Biswas.

          We have duly considered the submissions put forward on behalf of the DHr/Petitioner and have gone through the materials on record including affidavit in question and objection thereto and find that in this case the DHr/Petitioner has come up a case to the effect that so long Bhajan Biswas was able to hide himself in the camouflage of Suranjan Biswas and was successful in avoiding the process of law to the detriment of the interest of DHr/Petitioner.  But now when the picture is quite clear and there is no ambiguity to the proposition that Bhajan Biswas and Suranjan Biswas are same and identical person, there is no hindrance in taking proper action against Suranjan Biswas, who is present before this court in terms of the present execution case.  Keeping in mind this proposition and submissions put forward on behalf of the DHr/Petitioner we also take note of the fact that the execution case was initiated against Bhajan Biswas only.  Now, in this matter the DHr/Petitioner is banking upon heavily on some police report which is in support of petitioner’s case so far as it relates to the identical identity of Bhajan Biswas and Suranjan Biswas.  Now, in our opinion, a police report is nothing but an opinion of a particular police officer and it does not constitute any evidence, nor it has got any evidentiary value in its true sense.  We also take note of the fact that the execution case has been instituted against Bhajan Biwas only and at the fag end of the execution proceeding the petitioner is trying to implead Suranjan Biswas on the plea that Bhajan Biswas and Suranjan Biswas is same and identical and that too on the basis of some police report.  In this context, we find much substance in the submission put forward on behalf of Suranjan Biswas, according to whom, the procedure adopted by the DHr/Petitioner is not at all sustainable under the law when admittedly Suranjan Biswas was not a party to the original execution proceeding.  Though we are sympathetic to the DHr/Petitioner, but unfortunately we are unable to accept the proposition put forward on behalf of the DHr at this stage as Suranjan Biswas was not impleaded as a party to the original execution case.  In this regard, we find much substance in the submissions put forward on behalf of Suranjan Biswas and in view of such position, we have got no alternative but to reject the prayer of the DHr/Petitioner as put forward in the affidavit in question.  However, we make it clear that this rejection will not prevent the DHr to take proper steps against Suranjan Biswas in the original execution case as per law and in that event Suranjan Biswas will also have a chance to fight out the execution case properly.

          Hence, it is ordered that the prayer of the DHr/Petitioner, as made out in the affidavit filed on 19.5.09, stands rejected on contest but without any order as to cost.  The Execution Case stands disposed of accordingly.