Shib Ranjan Banerjee v. State — 1988 DIGILAW 121 (CAL)

JUDGMENT 1. THE petitioner defendant has filed the present revisional application challenging Order No. 79 dated 20. 11. 87 and order dated 21. 12. 87 passed by the learned Munsif, 4th Court, sealdaha in T. S. No. 613/81. By earlier order dated 20. 11. 87, the Learned munsif rejected the petition filed by the defendant on 13. 11. 87 to file documents holding inter alia that the provisions laid down in Order 8 Rule 8a and Order 13 Rules 1 and 2 of the Code of Civil Procedure have not been properly complied with and by filing the documents at this stage will prejudice the interest of the plaintiff. By subsequent Order dated 21. 12. 87, the learned munsif allowed the prayer of the defendant relating to amendment of the written statement in part and also allowed the defendat to call the records of T. S. No. 640/81. Being aggrieved and dissatisfied with both the orders the petitioner defendant has come to this court. 2. HAVING heard Mr. Mukherjee for the petitioner and Mr. Roy Chowdhury for the opposite party, this court finds that this case has a background of its own. The present suit was filed by the original plaintiff for declaration that the registered sale deed dated 24. 3. 75 conveying the back portion of the premises no. 47, B. C. Chatterjee Road, Talpukur, P. S. Titagarh is void and inoperative. A second suit was filed by one Sm. Nomita Neogi, younger daughter of the said plaintiff in T. S. No 613/81 being T. S. No. 640/81. There were other litigations between the parties. A comprehensive suit seeking reliefs has however been brought by the petitioner defendant impleading all others. It appears that the matter came to this Hon'ble Court in C. O. 3478/86. N. K. Mitra J. disposed of the revisional application on 14. 1. 1987 by directing the learned Munsif to consider first whether all suits and the proceedings pending with him are ready for hearing. If the learned Munsif finds that the suits and proceedings are ready for hearing he will hear out the same analogously. The parties will, however, be at liberty to adduce evidence separately in each of the suits or proceedings; but the learned Munsif will dispose of the T. S. 613/81 first. If the learned Munsif finds that the suits and proceedings are ready for hearing he will hear out the same analogously. The parties will, however, be at liberty to adduce evidence separately in each of the suits or proceedings; but the learned Munsif will dispose of the T. S. 613/81 first. If, however, the learned Munsif finds that apart from T. S. No. 613/81 the other suits and proceedings are not ready then the learned Munif will proceed with the T. S. No. 613/81 independently and shall dispose of me same without waiting for the other suits and proceeding. The learned Munsif in any case is to dispose of the aforesaid suit and proceeding within three months from the date of communication of the said order to the court below. It was made clear that the Hoh'ble Court did not make any observation regarding the merit of the suits and/or proceedings. It appears also that the court below by order no. 65 dated 25. 5. 87 took up the hearing of the T. S. No. 640/81 together with T. S. 613/81. It is submitted that since the suits were to be heard analogously the petitioner defendant filed certain provate documents in T. S. 640/81 and subsequently the said documents including one private letter dated 27. 7. 81 addressed by Sm. Nomita neogi to the "defendant from Durgapur by registered post was withdrawn on 14. 7. 86. It is submitted that an application was filed on 20. 5. 87 for withdrawal of T. S. No. 640/81 and, in fact, the suit has been withdrawn. In the meantime, the trial of T. S. No. 613/81 began and the deposition of the original plaintiff was recorded completing examination and cross-examination and after his demise the executor to his alleged will has been substituted as plaintiff and he has been pursuing the T. S. No. 613/81. At this stage the present petitioner defendant filed the private document since withdrawn from t. S. No. 640/81, in T. S. No. 613/81. By the order dated 20. 11. 87, the learned court below has rejected the same on the ground as indicated above. Sub-sequently, the defendant has sought to amend the written statement stating certain facts Including the statement as to the existence of the letter dated 27. 7. 81 purported to be written by Sm. Nomita Neogi to the defendant from durgapore by registered post. 11. 87, the learned court below has rejected the same on the ground as indicated above. Sub-sequently, the defendant has sought to amend the written statement stating certain facts Including the statement as to the existence of the letter dated 27. 7. 81 purported to be written by Sm. Nomita Neogi to the defendant from durgapore by registered post. By subsequent order dated 21. 12. 87 the learned munsif has allowed the prayer for amendment of the written statement in part and in particular, refused to amend the written statement where it has been averred that there is existence of the letter dated 27. 7. 81 as afore-mentioned. Mr. Mukherjee appearing for the petitioner has submitted that under the background of the entire case where both T. S. No. 613/81 and T. S. No. 640/81 were sought to be tried analogously the defendant had the impression that the evidence to be adduced in T. S. No. 640/81 would be made available in respect of adjudication in T. S. No. 613/81 where an aleged case of fraud has been made out with regard to the deed of sale dated 24. 3. 75. According to him, section 14 of the Evidence Act is clear that the fraud would be found out by considering circumstantial evidence and all the relevant facts and the circumstances would be considered for an effective adjudication of the maters in dispute. He has laid much emphasis that since the defendant filed the documents in the suit brought by Sm. Nomita Neogi in T. S. No. 640/81, and as the said suit has been withdrawn, there is no bar and or impediment to allow him to file the said documents again in T. S. No. 613/81 and the learned Munsif has refused the prayer of the defendant in cryptic manner by referring to Order 8 Rule 8a and Order 13 Rule 1a of the Code of Civil Procedure. He has not applied his mind and the learned Munsif ought to have considered the entire background of the case and should have permitted the defendant to file the documents. With regard to the second order dated 21. 12. 87. Mr. Mukherjee has argued that the defendant has prayed for amendment of the written statement. He has not applied his mind and the learned Munsif ought to have considered the entire background of the case and should have permitted the defendant to file the documents. With regard to the second order dated 21. 12. 87. Mr. Mukherjee has argued that the defendant has prayed for amendment of the written statement. The learned Munsif has allowed the prayer for written statement in part whereas even after allowing the written statement in part the defendant could file the documents including the letter dated 27. 4. 81 and only because by earlier order the prayer for filing the said document has been refused, the prayer for amendment of written statement ought not to have been rejected. The liberty granted by the learned court to adduce evidence does not preclude the defendant to file the document after withdrawal of the documents from T. S. no. 640/81 and such explanation should not be construed otherwise. Mr. Roy Chowdhury opposing the prayer of the petitioner in the revisional application, has very strongly argued that there are procedures laid down in the Code of Civil Procedure at which stage the documents have got to be filed and the trial of the suit would ensure. But in the instant case the evidence of the original plaintiff has been concluded. The evidence of the substituted plaintiff has also, been concluded. The defendant had withdrawn the document on 14. 7. 86 but has not taken any step diligently. Would it be permissible for the court to allow a party to file any document or to amend the pleading in any manner he thinks fit without justifying the cause in accordance with law. A proper explanation has to be appreciated by the court within the procedure as envisaged in the Code of Civil Procedure itself. He has further argued that the defendant which would make all the provisions of the Code of Civil Procedure nugatory. He has drawn the attention of the court to Order 8 Rule 8a of the Code of Civil Procedure which indicates inter alia : 3. WHAT is the duty of defendant to produce documents upon which relief is claimed by him. He has drawn the attention of the court to Order 8 Rule 8a of the Code of Civil Procedure which indicates inter alia : 3. WHAT is the duty of defendant to produce documents upon which relief is claimed by him. (1) Where a defendant bases his defence upon a document in his possession or power, he shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document or a copy thereof, to be filed with the written statement. (2) A document which ought to be produced in Court by the defendant under this rule, but is not so produced, shall not, "without the leave of the court, be received in evidence on his behalf at the hearing of the suit. (3) Nothing in this Rule shall apply to documents produced:- (a) For the cross-examination of the plaintiff's, witnesses, or (b) in answer to any case set up by the plaintiff subsequent to the filing of the plaint, or (c) handed over to a witness merely to refresh his memory. 4. Mr. Roy Chowdhury has drawn the attention of this Court further to Order 13 Rules 1 and 2 of the Civil Procedure Code. It appears that : "the parties or their pleaders shall produce at or before the settlement of issues all the documentary evidences of every description in their possession or power, on which they intend in reply, and which has not already been filed in Court, and all documents which the Court has ordered to be produced. The effect of non-production of documents : no documentary evidences in the possession or power of any party which should have been but has not been produced in accordance with the requirement of Rule 1 shall be received at any subsequent stage of the procedings unless good cause is shown to the satisfaction of the Court for the non-production thereof, and the Court receiving any such evidence shall record the reasons for so doing". 4. IN the entire argument of Mr. 4. IN the entire argument of Mr. Roy Chowdhury it has been high lighted that whether leave should be granted to the "defendant to file documents at a later stage of the suit or whether good causes have been shown by the defendant to entitle him to file the document at this stage where the suit has reached for effective adjudication of the matter in dispute. Considering such submissions made by the learned Advocates of both sides as to the scope of rule 8a of Order 8 as well a Order 13 Rules 1 and 2 of the Civil Procedure Code this Court will have to consider the necessary ingredient which will permit the court to grant leave and to consider the good causes as indicated therein. This Court has come to the conclusion that each case has to be decided according to its own merits as to filing of the documents at a later stage where the litigation has reached. 5. IT is a well-known principle of law that for effective adjudication of the matter in dispute each case has to be Considered in the proper perspective. In the present case it appears that the defendant had in fact, filed written document in T. S. 640/81. It appears, from the materials on record that both the T. S. No. 613/81 and T. S. No. 640/81 has been allowed to be withdrawn the defendant has sought to file the documents, in T. S. 613/81 after withdrawing the documents filed in T. S. 640/81. By taking steps to file the document in T. S. 613/81, whether any case, of prejudice is made towards the interest of the plaintiff in T. S. 613/81. The Court below will have to consider two stages at the time of final adjudication of the case, (1)about the admissibility of written document and (2) about the probative value of such documents which would be made exhibits. The admissibility of evidence and probative value of evidence would be considered only when the parties can file the documents. The Court below has refused the prayer of the defendant to file the documents. It has to be examined as to whether the filling of the documents by the defendant should be permitted or any good cause shown by the defendant is sufficient and/or leave as prayed should be granted or not. The Court below has refused the prayer of the defendant to file the documents. It has to be examined as to whether the filling of the documents by the defendant should be permitted or any good cause shown by the defendant is sufficient and/or leave as prayed should be granted or not. This Court with all anxieties has considered the submissions of the learned Advocates of the respective parties and it finds that for the effective adjudication of the matter in dispute the Court can permit a party to adduce evidence under Order 18 Rule 17a before passing of the judgment. 6. MR. Roy Chowdhury has strongly indicated as to whether there is diligence on the part of the defendant to produce the document at this stage where the suit has reached. I have considered this aspect of the matter and I find that the defendant who filed the document in T. S. 640/81, has taken steps to file the document in T. S. 613/81. He may be permitted to file the document but whether the said document would be admitted to the evidence and/or its probative value would be considered by the Court concerned at a proper stage. For the aforesaid reasons, this Court finds that the order passed by the Court below on 20. 11. 87 should be set aside and the defendant is permitted to file the document and the learned Court below will consider about the admissibility of the said document or the probative value of such evidence in accordance with law by allowing the parties to make their submissions at the proper stage. With regard to the subsequent order of refusing the prayer for amendment of the written statement this court finds that the entire written statement as proposed to be amended may be allowed and the defendant may be permitted to produce the document even after the acceptance of the amendment of the written statement and the learned Court below would consider the document filed by the defendant in accordance with law. Order dated 21. 12. 1987 is accordingly modified. It is made clear by that this Court has not made any observation as to the merits of the document and as to the admissibility of the same in evidence and/or its probative value in any manner whatsoever. Order dated 21. 12. 1987 is accordingly modified. It is made clear by that this Court has not made any observation as to the merits of the document and as to the admissibility of the same in evidence and/or its probative value in any manner whatsoever. After production of the document and after the entire amendment of the written statement the plaintiff would be entitled to recall all witnesses, if otherwise available. The revisional application is thus disposed of. Let a copy of this order be communicated to the Court below immediately. Application disposed of.