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2010 DIGILAW 917 (CAL)

Shew Charan Singh v. Anita Roy Alias Sapui

2010-08-03

KANCHAN CHAKRABORTY

body2010
JUDGMENT 1. BOTH the parties heard extensively. 2. IN this revisional application, correctness, validity and propriety of the Order No. 72 dated 7.8.2006 passed by the learned Civil Judge (Junior Division), First Court, Sealdah in Title Suit No. 124 of 1998 has been challenged by Shew Charan Singh and Ors., the plaintiffs in the suit. The facts leading to this revisional application, succinctly, are stated below. 3. THE petitioners herein filed one Ejectment Suit against the opposite parties which has been registered as Title Suit No. 124 of 1998 in the Court of learned Civil Judge, Junior Division, First Court at Sealdah. 4. THE eviction was sought for on the ground of default in payment of rent and reasonable requirement of the suit premises. THE O.Ps as defendants entered appearance and filed application under sections 17(2) and 17(2A) of the West Bengal Premises Tenancy Act and challenged the relationship of landlord and tenant also. In course of hearing the petition under sections 17(2) and 17(2A) of the West Bengal Premises Tenancy Act, the learned Trial Court recorded evidence, oral and documentary. 5. LEARNED Court admitted one document into evidence and marked the same as Exhibit 6. The said document alleged to have been written by one Pasupati Nath Singh in presence of the opposite party Anita Roy alias Sapui. The authenticity of the document was challenged by the present petitioner. 6. THE opposite parties herein filed an application under section 45 of the Indian Evidence Act praying for sending the document for examination by an expert for the purpose of verifying signature of Pasupati Nath Singh in Exhibit 6 with his normal signatures available in other documents. That petition was taken up for hearing on 7.8.2006 by the learned Trial Court. Learned Trial Court passed the following order: "THE COURT CIVIL JUDGE (JR. Divn)SEALDAH Pre : Sri A. Chowdhury (J) 72/7.8.06 Today is fixed for hearing the petition under section 45 of the Indian Evidence Act. Both parties files haziras. Petitioner is taken up for hearing. Advocate both sides considered. By fixing the filing the petition under section 45 of Indian Evidence Act the defendant has prayed for an order to send the Exbt. No. 6 for proper comparing the signature of Pashupati Singh along with the signature of other documents wherein Pashupati Singh's signature has been admitted. Petitioner is taken up for hearing. Advocate both sides considered. By fixing the filing the petition under section 45 of Indian Evidence Act the defendant has prayed for an order to send the Exbt. No. 6 for proper comparing the signature of Pashupati Singh along with the signature of other documents wherein Pashupati Singh's signature has been admitted. Plaintiff filed written objection against this petition and prayed for rejection of the same. At the time of passing order I find that the document marked as Ext. No. 6 is purported to be a sale deed. As such as per Stamp Act as well as Registration Act the document should be registered having proper stamp duty, before being admitted into evidence. Now this document has been admitted into evidence on 10.7.2006 vide Order No. 70 inadvertently. This is an error apparent on the face of the record which should be removed immediately. Until and unless this irregularity is straightened out, the instant petition under section 45 of Indian Evidence Act cannot be disposed of at this state. It is therefore, Ordered That the document marked as Exbt-6 impounded and the same is required to be assessed by Revenue Officer for payment of proper stamp duty. Write a letter to the Revenue Officer for assessing the stamp duty payable on Exbt No. 6 to 16.11.06 for reply and further order. Sd/-J" Being dissatisfied with and aggrieved by the order above, this revisional application has been filed by the petitioners challenging the legality and correctness of the order. 7. THE short point to be considered in this revisional application is whether the order passed by the learned Court is sustainable in law. 8. MR. Biswas, learned Counsel appearing for the petitioner has made three fold contentions. His first contention is that the Trial Court erred in impounding the document while disposing of a petition under section 45 of the Evidence Act. 9. HIS next contention is that the learned Court without ascertaining the nature of the document cannot ask the petitioners to pay proper stamp- duty. 10. HIS last contention is that while a document has been admitted into evidence and marked exhibit, the Trial Court has no scope to invoke the provisions of Order 13 Rule 8 of the Code of Civil Procedure. In support of his contention, Mr. 10. HIS last contention is that while a document has been admitted into evidence and marked exhibit, the Trial Court has no scope to invoke the provisions of Order 13 Rule 8 of the Code of Civil Procedure. In support of his contention, Mr. Biswas referred to Jayalakshmi Coelho vs. Oswald Joseph Coelho, AIR 2001 SC 1084 and Bipin Shantilal Panchal vs. State of Gujarat, reported in AIR 1158 SC 1158. 11. MR. Chatterjee, learned Counsel appearing on behalf of the opposite parties contended that the order impugned clearly indicates that the document in question was admitted into evidence and marked exhibit inadvertently which is curable in nature and the learned Court while passing the order impugned has rightly detected the mistake done by it and corrected the same by invoking its power under section 152 of the Code of Civil Procedure. 12. IN support of his contention Mr. Chatterjee referred to the case laws reported in 2007(5) SCC page 360, 2007(5) SCC page 359 and Syed Ali Mondal vs. Kazi Golam Bari, reported in 59 CWN page 513. Under Order 13 Rule 8 of the Code Court may order any document to be impounded. The Rule 8 says : "Court may order any document to be impounded. -Notwithstanding anything contained in Rule 5 or Rule 7 of this Order of in Rule 17 of Order 7, the Court may, if it sees sufficient cause, direct any document or book produced before it in any suit to be impounded and kept in the custody of an officer of the Court, for such period and subject to such conditions as the Court thinks fit." In view of the provisions laid down in Rule 8 of Order 13 of the Code, of course, Court, in appropriate cases may impound a document filed by a party in a suit. But, it is settled principle of law that once a document has been admitted into evidence and marked exhibit, Court cannot invoke the provisions of Order 13 Rule 8 of the Code. This view finds support from the case reported in AIR 2004 NOC 208 AP. 13. But, it is settled principle of law that once a document has been admitted into evidence and marked exhibit, Court cannot invoke the provisions of Order 13 Rule 8 of the Code. This view finds support from the case reported in AIR 2004 NOC 208 AP. 13. IN the case in hand, the learned Court in the midst of hearing of the petition under sections 7(2) and 7(2A) of the West Bengal Premises Tenancy Act admitted one document into evidence which according to the Court a purported sale deed and marked the same as Exhibit 6. 14. IN the impugned order dated 7.8.2006, the learned Court found that the document i.e., the Exhibit 6 was admitted into evidence inadvertently and that being an error apparent on the face of record, was liable to be removed. That observation of the Court was made while the learned Court was supposed to dispose of a petition under section 45 of the Indian Evidence Act filed by the opposite parties challenging the genuinity of the signature of the petitioner contained in the said Exhibit 6. A document cannot be admitted into evidence and marked Exhibit inadvertently. The Court is expected and supposed to apply judicial mind while doing so. The question of admitting a document into evidence and marking it Exhibit inadvertently cannot possibly be noted and corrected by the same Court. 15. SO, on the same analogy, that being not a mistake, typographical or clerical, on the part of Court, cannot also be rectified by exercising power under section 152 of the Code of Civil Procedure. 16. I, therefore, do not concede to the proposition of Mr. Chatterjee, learned Counsel appearing on behalf of the opposite parties that the mistake detected by the Court while considering the petition under section 45 of the Evidence Act is a curable defect and Court can cure it by exercising inherent power under section 151 of the Code of Civil Procedure and invoking the provision of sectionl52 of the Code. Again, in the case in hand, the learned Court was not at all sure whether the document in question was a sale deed or not. It described the document to be a "purported" sale deed. Before impounding a document, Court is to be sure that the document is coming within the provisions of section 33-40 of the Stamp Act which requires stamp duty. It described the document to be a "purported" sale deed. Before impounding a document, Court is to be sure that the document is coming within the provisions of section 33-40 of the Stamp Act which requires stamp duty. Without determining the nature of the document, it is not understood, how the Court came to such a conclusion that stamp duty is required. 17. THIS apart the Court was supposed to dispose of a petition under section 45 of the Evidence Act wherein the point to be considered by the Court was whether the signature on the Exhibit 6 was required to be verified by an expert or not. Therefore, the question whether a document is required to be stamped or not, not being an issue, was not required to be probed into by the Court at that particular time because whether or not a document has probative value, and a matter of appreciation of evidence on record and that can well be done at the time of passing the final order in the suit. The document in question was admitted into evidence and marked Exhibit without any objection, whatsoever. For allowing or rejecting a petition under section 45 of the Evidence Act, it is not required for the Court to make any such observation regarding admissibility of the document into evidence which, in my estimate, is unwarranted and liable to be interfered with. 18. IN the premises above, I am of the opinion that the order impugned is liable to be interfered with in this revisional application. Learned Court is directed to take up the petition under section 45 of the Indian Evidence Act without delay and pass appropriate order and proceed with the suit. 19. LEARNED Court will be at liberty to consider the probative value of the Exhibit 6 by way of appreciation of evidence at the time of passing the final order in the suit. 20. THE revisional application, thus, succeeds and is disposed of. No order as to costs.