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2011 DIGILAW 1290 (CAL)

Kaushik Chakraborty v. Bakul Bala Upadhyaya

2011-09-16

PRASENJIT MANDAL

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JUDGMENT PRASENJIT MANDAL, J. 1. THIS application is directed against the Order No. dated February 5, 2010 passed by the learned Judge, Small Causes Court. Sealdah in Title Suit No. 13 of 2006. 2. THE short fact is that the plaintiffs/petitioners herein instituted a suit being the Title Suit No.13 of 2006 before the learned Judge, Small Causes Court, Sealdah for partition, declaration, permanent injunction and, other reliefs. THE opposite party No.s 2 and 3 are contesting the said suit by filing a written statement and the opposite party No.3 filed a counter-claim in the said suit. THE plaintiffs filed a written statement to the counter-claim filed by the opposite party No. 3. THE evidence on behalf of both the parties in the plaint case had been closed. At the stage of examination of the D.W.s in the counter-claim, the plaintiffs/petitioners herein tendered evidence-in-chief by way of an affidavit as D.W.I. Two letters of the advocates had also been filed for marking the same as exhibit. THE opposite parties raised objection against the evidence-in-chief and they prayed for striking out the evidence of the D.W.I in the counter-claim. That application was allowed in part by the inpugned order. Being aggrieved, this application has been preferred. 3. NOW, the question is whether the impugned order should be sustained. 4. UPON hearing the learned counsel for the parties and on going through the materials on record, I find that the matter involved in this revisional application is over the expunge of certain portions of the evidence-in-chief tendered by the plaintiffs as D.W.I in the counter-claim filed by the defendant No.3/opposite party No.3 herein. The leaned Trial Judge allowed that application in part. While discussing the grounds for rejection in part, the learned Trial Judge had observed that as per application for expunction the paragraph Nos. 5, 6, 7 and 8 of the D.W.I in the counter-claim were contrary to the defence stand taken by the plaintiffs and those paragraphs were beyond the pleadings of the parties. Ultimately, he concluded that paragraph Nos. 2, 3, 4, 6 and partly 8 of the affidavit-in-chief should be expunged. 5. MR. R.N. Dutta, learned Advocate for the petitioner has referred to an earlier decision of Mustaque Ahmed Khan and Ors. v. Mohammad Nasim and Ors. Ultimately, he concluded that paragraph Nos. 2, 3, 4, 6 and partly 8 of the affidavit-in-chief should be expunged. 5. MR. R.N. Dutta, learned Advocate for the petitioner has referred to an earlier decision of Mustaque Ahmed Khan and Ors. v. Mohammad Nasim and Ors. reported in (2011)1 CLJ(Cal) 455 wherein this Bench has observed that the prayer for expunction of the evidence at the stage of adducing evidence is not permissible and the application for expunction shall be considered at the time of argument and subsequently at the time of passing Judgment. 6. MR. Dutta has also referred to the decision of Sanat Kumar Ganguly v. Sandhya Dutta Chowdhury and Ors. reported in 2008(1) CLJ (Cal) 450 which lays down the decision of Salem Advocate Bar Association v. Union of India reported in (2005)6 SCC 344 wherein paragraph no.13 lays down the provision for leading evidence which is quoted below:- "In Salem Advocate Bar Association case it has been clarified that on deletion of Order 18 Rule 17-A which provided for leading of additional evidence, the law existing before the introduction of the amendment i.e. 1.7.2002, would stand restored. The rule was deleted by Amendment Act of 2002. Even before insertion of Order 18 Rule 17-A, the Court had inbuilt power to permit parties to produce evidence not known to them earlier or which could not be produced in spite of due diligence. Order 18 Rule 17-A did not create any new right but only clarified the position. Therefore, deletion of Order 18 Rule 17-A does not disentitle production of evidence at a later stage. On a party satisfying the Court that after exercise of due diligence that evidence was not within his knowledge or could not be produced at the time the party was leading evidence, the Court may permit leading of such evidence at a later stage on such terms as may appear to be just." 7. ON the other hand, Mr. Arindam Chatterjee, learned advocate for the opposite party has referred to the decision of Mina Bose v. Prabir Das reported in 2008(2) CLJ(Cal) 369 which lays down that the affidavit-in-chief being contrary to the averments in the plaint shall be expunged and as such, the learned Advocate for the Opposite party supports the impugned order. 8. MR. Chatterjee has also referred to the order dated April 29, 2009 before CO. 8. MR. Chatterjee has also referred to the order dated April 29, 2009 before CO. No.639 of 2009 of this Hon'ble Court arising out of the suit, wherein it has been observed that the learned Trial Judge is requested to expedite the hearing of the suit as far as possible. But the trial is held up by such process. 9. I have considered all these decisions cited by the parties. 10. UPON careful perusal of the provisions of Order 18 Rule 4 of the CPC, I do not find any provision for expunction of the evidence or to scan the evidence in details at the time of tender of the evidence under order 18 Rule 4 of the CPC. However, if the evidence-in-chief by way of an affidavit is tendered and if it contains the statements beyond the pleadings completely, the evidence-in-chief may not accepted by the learned Trial Judge and the concerned party may be directed to file afresh evidence-in-chief by way of an affidavit in conformity with the pleadings of the parties. But there cannot be any straight jacket formula in this regard. Every case shall be decided according to the situation and the decision of one case may not be applicable in the other case. 11. THE manner of adducing evidenee-in-chief by affidavits has been adopted in the CPC by the amendment of Order 18 Rule 4 of the CPC with the sole object of expeditious disposal of the suit and to minimise the time to be consumed in recording the evidence-in-chief in the Court and an elaborate procedure has been laid down in Order 18 of the CPC as to the manner in which the evidence may be recorded for prompt disposal of the suit. But nowhere it is stated that if the evidence appearing as evidence-in-chief by way of affidavits is beyond the pleadings, it should be expunged at once. If such a recourse of expunction is adopted, the learned Trial Judge has to make a scrutiny of the evidence tendered vis-a-vis the pleadings of the parties. Thereafter, he has to pass an appropriate order as he thinks fit. Either of the parties may have grievance against such an order and he may prefer a revision. It may take considerable time to dispose of a revisional application. Even an appeal may be filed against the order passed in the revision, before the Apex Court. Thereafter, he has to pass an appropriate order as he thinks fit. Either of the parties may have grievance against such an order and he may prefer a revision. It may take considerable time to dispose of a revisional application. Even an appeal may be filed against the order passed in the revision, before the Apex Court. By, this process. the purpose of amendment of Order 18 Rule 4 (particularly) of the CPC may be frustrated at the instance of a party who is desirous of prolonging the litigation. By this process, the progress of the suit may be hauled up at the instance of the party who intends to drag the matter for an unending period. That is why there is no provision for expunction the evidence at that very stage of adducing evidence and it would be better to consider the same at the time of hearing the argument over the suit and passing judgment thereafter, at that stage, if it is found that any portion of the evidence-in-chief is beyond the pleadings, the same may not be accepted. However, if the evidence-in-chief by way of an affidavit is altogether different from the pleadings and those could be segregated by mentioning the paragraph numbers or a particular portion of the paragraph specifically, in that case, the proper course, I am of the view, is not to accept the evidence-in-chief by way of an affidavit and to direct the party concerned to file a fresh evidence-in-chief by way of an affidavit in conformation of the pleadings of the parties within the specified time as fixed by the learned Trial Judge. Pray this process, the cross-examination of the witnesses will be minimum. 12. IN the instant case, the impugned order is not expressive at all rather to some extent confusing. While in the first part of the order, the learned Trial Judge has recorded that as per application, the paragraph No.s 5, 6, 7 and 8 of the evidence-in-chief (i.e. in the D.W.I) in the counterclaim is beyond the pleadings, at the concluding stage, he has observed that the paragraph No.s 2, 3, 4, 6 and partly 8 are beyond the pleadings and so, these portions of the affidavit-in-chief be expunged. Thus, I find that the ultimate conclusion is not in conformity with the earlier observations made by him and in fact, no reason has been assigned by the learned Judge as to why the paragraph No.s 2, 3 and 4 of the evidence-in-Chief should be expunged. 13. UNDER the circumstances, without recording in details, I am of the view that it would be fit and proper to send back the matter to the learned Trial Judge for disposal of the application on merits afresh. It is, however, noted that if the evidence-in-chief is altogether different from the stand taken by the plaintiffs in the counter-claim with regard to particular paragraphs or any part of a particular paragraphs, he may not accept the said evidence-in-chief. He may reject the entire evidence-in-chief and direct the plaintiffs to file afresh evidence-in-chief as D.W.I making it in conformity with their stand and not beyond the pleadings of the parties. 14. SO far as marking of two letters as exhibit, this function is to be performed by the learned Trial Judge in the open Court in accordance with law. 15. IN that view of the matter, I am of the opinion that the impugned order should be set aside. Accordingly, the impugned order is set aside. The learned Trial Judge is directed to hear out the application dated November 3, 2009 afresh and to pass a reasoned order thereon within a period of 30 days from the date of communication of this order to him. Thereafter, he shall. proceed to record the evidence of the D.W.s in the counter-claim in accordance with law. He shall make an endeavour to dispose of the suit early as possible. 16. THE revisional application is disposed of in manner indicated above. 17. CONSIDERING the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking. Revisional application disposed of.