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2012 DIGILAW 985 (GAU)

Gajen Das v. Legal Heirs of Ramani Kalita

2012-08-17

A.K.GOSWAMI

body2012
JUDGMENT A.K. Goswami, J. 1. This is an application under Article 227 of the Constitution of India read with Section 151 CPC challenging the order Mated 12.04.2010 passed by the learned Munsiff, North Salmara, Abhayapuri in Title Suit No. 72 of 2006, whereby the learned Trial Court allowed the petition filed by the plaintiff under Order 18 Rule 4 (2) CPC, Section 138 of the Evidence Act, read with Section 151 CPC praying for allowing re-examination of PW-2, Smti Joymati Roy. The plaintiff filed a Title Suit for declaration of right, title and interest and confirmation of possession in respect of 1 Bigha of land with Dag No. 48, under old Khatian No. 52, new Khatian No. 2, Village-Deohati Part-I, Circle Sub-Division- North Salmara, District-Bongaigaon with boundaries described in Schedule C to the plaint with a further prayer that if the defendants consolidate their possession and start residing in the suit land, a decree for recovery of khas possession of the suit land by evicting the defendants together with demolition of the construction raised by the defendants be passed. Decree for permanent injunction restraining the defendants and their servants, etc. from trespassing into the suit land, and from making any construction upon the suit land as well as from causing disturbance and inconvenience to the plaintiff in peaceful enjoyment of the suit land was also prayed. 2. The case set out in the plaint is that 31 Bighas 1 Katha 6 Lechas of land covered by Dag No. 48 and 17 Bighas 4 Kathas 8 Lechas of land covered by Dag No. 47, totalling 49 Bighas 0 Katha 14 Lechas under Khatian No. 52 was settled by the Government in favour of one Amalendu Baruah with heritable and marketable title during the first settlement operation of 1958 - 62. This plot of land is shown in Schedule A of the plaint. Subsequently, the defendants numbering 5 and proforma defendants Nos. 2 to 8 in the suit, purchased some plots from Amalendu Baruah, who was arrayed as proforma-defendant No. 1 in the suit, and obtained possession and mutation and a joint patta was issued. Subsequently, Amalendu Baruah offered to sell 1 Bigha 2 Kathas 10 Lechas of land in favour of the plaintiff and accordingly, on 19.08.1964, the plaintiff paid the agreed consideration amount of Rs. Subsequently, Amalendu Baruah offered to sell 1 Bigha 2 Kathas 10 Lechas of land in favour of the plaintiff and accordingly, on 19.08.1964, the plaintiff paid the agreed consideration amount of Rs. 1,500/-to Amalendu Baruah and accordingly, said plot of land within Dag No. 48 was sold to the plaintiff by registering a Sale Deed dated 19.08.1964 and khas possession was handed over to the plaintiff. The plaintiff continued to remain in possession of the land in question and this plot of land is shown in Schedule B to the plaint. 3. The plaintiff sold 2 Kathas 10 Lechas of land on the northern side of the plot of land from the Schedule B land to one Dipak Narayan Dey and handed over possession to him in the year 1993 and thus, one Bigha of land remained under his title and possession. This plot of land is shown in Schedule C to the plaint and the same is the suit land. On 12.01.1994, he found the defendants trespassing into the suit land and also constructing some houses thereon. 4. With the aforesaid pleadings, the suit was filed in the Court of Civil Judge, Junior Division, North Salmara, Goalpara and the same was registered as Title Suit No. 3 of 1994. The plaint was returned on 09.08.2000 for want of pecuinary jurisdiction and the suit is now pending in the Court of Civil Judge, Senior Division, Bongaigaon and numbered as Title Suit No. 72 of 2006. 5. A written statement was filed on behalf of the defendants Nos. 1, 2 and 3 who are the petitioners before this Court. It is disputed by them that they have been possessing any land of the plaintiff and asserted that each of the defendants have their Land with clear cut boundaries where they have constructed their own buildings and have planted valuable trees. While admitting that Schedule A land measuring 49 Bigha 0 Katha 14 Lechas belonged to Amalendu Baruah, It is stated that they had not purchased land directly from Amalendu Baruah but from Gajendra Kumar Das who is arrayed as defendant No. 5 in the suit. The grant of joint patta in 1962 was denied as the land was purchased after 1962. The allegation of possession of plaintiff either in the Schedule A or in the Schedule C is also denied. The grant of joint patta in 1962 was denied as the land was purchased after 1962. The allegation of possession of plaintiff either in the Schedule A or in the Schedule C is also denied. It is stated that when the defendants registered the Sale Deed, Dag No. was inadvertently wrongly incorporated and subsequently Gajendra Kumar Das had made the rectification of the Sale Deed by recording correct Dag No, which is 48, in the Sale Deed. 6. From the averments made in this application, it is clear that the trial had commenced. The plaintiff had adduced the evidence of 2 witnesses including himself and there was cross-examination also. DW-1 had also been cross-examined and there are 6 witnesses on behalf of the defendants who are yet to be cross-examined. 7. The plaintiff had filed a petition under Order 18 Rule 4(2) of the Code of Civil Procedure and Section 138 of the Evidence Act, read with Section 151 of the CPC praying for allowing re-examination of PW-2, Smti Joymoti Roy. In the said petition, it is stated that the plaintiff intended to examine PW-2 along with registered deed No. 1829/64 and 4877/92, which were in her custody. PW- had brought these deeds to the Court on 6/4/09 and as the witness was not willing to keep the documents in the case records, the copies of the deeds were duly verified by the Sherestadar of the Court with an endorsement that the deeds were compared with the original. It is stated that due to accidental slip and inadvertence, the compared copies of the deeds were not submitted in the Court and also not exhibited. In the aforesaid circumstances, it is stated that as PW-2 had agreed to bring the original documents, namely, registered Sale Deed Nos. 1829/64 and 4877/92, re-examination of PW-2 may be allowed in the interest of justice. 8. A written objection was filed by the defendants contending that the petition was not maintainable and that the petition ought to have been filed under Order 18 Rule 17 CPC read with Section 138 of the Evidence Act. It is also stated that the cause of accidental slip as mentioned by the plaintiff in the petition is not a sufficient ground for allowing re-examination of the witness. It is also stated that the cause of accidental slip as mentioned by the plaintiff in the petition is not a sufficient ground for allowing re-examination of the witness. It is stated that when PW-2 had stated in the evidence that she had purchased the land in the year 1972, there could not have been any relevance of the sale deed numbered as 4877/92. It is also stated there was no ambiguity in the evidence of PW-2 requiring any clarification and the re-examination was sought for to give the witness a chance to undo the effect of her previous statement in cross-examination and Section 138 of the Evidence Act, in such circumstances, cannot be invoked. Objection was also taken with regard to the advocate of the plaintiff filing the petition. 9. The learned trial Court, after hearing the learned counsel for the parties, even though trial had commenced, opined that if the documents were not allowed to be exhibited by re-examining PW-2, then the plaintiff definitely will suffer prejudice. The learned trial Court was also of the opinion that the defendant side would get the opportunity to cross-examine PW-2 and therefore, no prejudice would be caused to the defendants. 10. By order dated 17/2/12, this Court, in order to appreciate the contentions raised, had directed the opposite parties to produce and file the sale deeds which were to be exhibited by PW-2. In terms of the said direction, the opposite parties have placed on record the copies of the sale deeds and the translated version thereto. 11. Ms. R. Choudhury, learned counsel for the petitioner submits that the learned trial Court has committed miscarriage of justice by allowing the petition filed by the plaintiff for re-examination of PW-2. The learned counsel submits that the impugned order was in violation of Order 13 Rule 1 and 2 of CPC as the plaintiff had not produced documentary evidence along with the plaint and also did not file the documents before the settlement of issues. It is also contended by her that the ground cited in the petition for re-examination of PW-2 is not a good and sufficient ground and the entire exercise undertaken by the plaintiff was to fill up the lacuna of the plaintiff's case. It is also contended by her that the ground cited in the petition for re-examination of PW-2 is not a good and sufficient ground and the entire exercise undertaken by the plaintiff was to fill up the lacuna of the plaintiff's case. The learned counsel further submits that allowing PW-2 to be re-examined by the learned trial Court has militated against the provisions of Section 138 of the Evidence Act. The learned counsel also submits that Sale Deed No. 4877/92 cannot have any relevance when admittedly PW-2 had stated in her cross-examination that she had purchased her land in the year 1972. She concludes her submissions by submitting that after the evidence of defendants had started, there could not have been any occasion for the learned trial Court to have allowed the prayer of the plaintiff for re-examination of PW-2. 12. Mr. P. Khanikar, learned counsel for the opposite parties, without making any independent submission, only supports the impugned order and the reasoning assigned by which PW-2 was allowed to be re-examined. 13. Order 7 Rule 14(1) of the Code of Civil Procedure requires the Plaintiff to enter all the documents in a list, upon which he sues or places reliance, which are in his possession or power, in support of his claim and to produce the same in Court when the plaint is presented by him and at the same time deliver the document and a copy thereof, to be filed with the plaint. Sub-rule (2) of Rule 14 further requires the plaintiff to state in whose possession or power such document is, where such document is not in the possession or power of the plaintiff. Sub-rule (3) of Rule 14, however, is an exception to Sub-rules (1) and (2) of Rule 14 of Order 7 of the Code of Civil Procedure, which empowers the Court to receive any document in evidence on behalf of the plaintiff, which has not been produced in the Court by the Plaintiff when the plaint was presented, or entered in the list or annexed to the plaint, at the hearing of the suit, as the power has been conferred on the Court to grant leave in that regard. Order 13 Rule 2 CPC, as it stood prior to amendment by the amending Act of 46 of 1999 (which came into force with effect from 01.07.2002) empowered the Court to accept the documents at any subsequent stage of the proceeding, which have not been produced in accordance with requirements of Rule 1 of Order 13, provided good cause is shown to the satisfaction of the Court for non-production thereof. It also required the Court to record reason for acceptance of such evidence. After the amendment Act of 46 of 1999 came into force, original Rules 1 and 2 of Order 13 were substituted by new Rule 1. Sub-rule (1) of Rule 1 requires the parties or the pleader to produce on or before the settlement of issues, all documentary evidence in original where the copies there of have been filed along with the plaint or written statement. Sub-rule (2) provides that the Court, thereafter, shall receive such document so produced provided they are accompanied by an accurate list in such form as the High Court directs. The requirement of Sub-rule (1) of Rule 1 of the Order 13 of the Code of Civil Procedure is not applicable to documents-(a) produced for the cross-examination of the witnesses of the other party; or (b) handed over to a witness merely to refresh his memory, in view of Sub-rule (3) of Rule 1 of Order 13 Code of Civil Procedure. 14. A perusal of the aforesaid provisions Would go to show that the Court can accept documents filed by the plaintiff and receive the same in evidence on his behalf at the hearing of the suit, even if such document was not produced when the plaint was presented or has not been entered in the list to be annexed to the plaint subject to grant of leave of the Court. As such, it cannot be said that after settlement of the issues, no document can be accepted by the Court at all. It goes without saying that discretion by the Court in respect of granting or refusing of leave has to be exercised by the Court judiciously and to promote justice. 15. As such, it cannot be said that after settlement of the issues, no document can be accepted by the Court at all. It goes without saying that discretion by the Court in respect of granting or refusing of leave has to be exercised by the Court judiciously and to promote justice. 15. Section 137 of the Evidence Act says that the examination of a witness by the party who calls him shall be called his examination-in-chief; the examination of a witness by the adverse party shall be called his cross-examination and the examination of a witness, subsequent to the cross-examination by the party who calls him, shall be called his reexamination. Section 138 of the Evidence Act prescribes the order of examination and says that the witness shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. Section 138 further says that the examination and cross-examination must relate to the relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. Section 138 further provides that the re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter. Perusal of Section 138 would go to show that the cross-examination need not be confined to the facts stated by the witness on examination-in-chief. If the facts which are not stated by the witness in examination-in-chief are put to him in the cross-examination, some explanation may be required to be given by the witness to the matters so referred to in the cross-examination. It is for this reason, the re-examination can be permitted by the Court to explain the facts which were put to him in the cross-examination. Section 138 specifically says that re-examination shall be directed to explain the matters referred to in the cross-examination. It is thus clear that reexamination is not restricted to explaining any ambiguity in the oral evidence but is also to explain any matter which has been referred to in the cross-examination of the witness. Section 138 specifically says that re-examination shall be directed to explain the matters referred to in the cross-examination. It is thus clear that reexamination is not restricted to explaining any ambiguity in the oral evidence but is also to explain any matter which has been referred to in the cross-examination of the witness. To protect the interest of the party cross-examining the witness at the first instance against any new material introduced in the reexamination, Section 138 further provides that if new facts are introduced in the re-examination, the adverse party would have a right of further cross-examination on that matter. The provisions of Section 138 are so designed as to do complete justice between the parties and to give them full opportunity of adducing evidence. Re-examination has to be liberally allowed when new facts are introduced in the cross-examination. 16. In Rammi @ Rameshwar Vs. State of Madhya Pradesh, reported in (1999) 8 SCC 649 , the Supreme Court laid down as follows: 17. There is an erroneous impression that re-examination should be confined to clarification of ambiguities which have been brought down in cross-examination. No doubt, ambiguities can be resolved through reexamination. But that is not the only function of the re-examiner. If the party who called the witness feels that explanation is required for any matter referred to in cross-examination he has the liberty to put any question in reexamination to get the explanation.... 17. It is correct as contended in the written objection that the petition ought to have been filed under Order 18 Rule 17 CPC read with Section 138 of the Evidence Act and not under Order 18 Rule 4(2) read, with Section 138 of the Evidence Act read with Section 151 CPC. However, wrong quoting of a Section cannot be a decisive factor to reject a petition to grant the prayer made if the power is otherwise available under the statute. 18. This Court in Hindustan Paper Corporation Ltd. & Ors. Vs. Saikia and Associates, reported in 2009 (1) GLT 151, had occasion to consider a question as to whether a witness can be re-examined, once he was examined, cross-examined and discharged. This Court Held as follows: 20. 18. This Court in Hindustan Paper Corporation Ltd. & Ors. Vs. Saikia and Associates, reported in 2009 (1) GLT 151, had occasion to consider a question as to whether a witness can be re-examined, once he was examined, cross-examined and discharged. This Court Held as follows: 20. It is, therefore, evident from Section 138 of the Evidence Act that re-examination of a witness, even in the new matter, with the permission of the Court, is permissible, however, in that case the adverse party must be given the opportunity to cross-examine such witness upon such matter. Hence, in a given case, subject to showing sufficient cause for that purpose, re-examination of a witness, who has been examined-in-chief and cross-examined, can be allowed by the Court. The Court also, as noticed above, in a given case can exercise the jurisdiction under Section 151 of the Code of Civil Procedure and direct re-examination of a witness, who has been examined, cross-examined and discharged earlier. Holding thus, this Court allowed the PW-1 in the said case to be cross-examined to prove certain documents, as sufficient cause was shown in not producing the original copies retained by it and had not interfered with the order of the learned Trial Court in respect of those documents. This Court, however, had interfered with the order of the learned Trial Court in respect of some documents, for non production of which no reasons were assigned. 19. In her evidence, PW-2 had stated that she has residence in her own land in the southern boundary of the suit land and that defendant had started construction upon the land of the plaintiff. In her cross-examination, PW-2 had stated that she had purchased 1/2 bigha (2K10L) of land from one Basanta Kr. Choudhury in 1972 and she had also taken from him the Sale Deed by which Basanta Kr. Choudhury had purchased the land. 20. A perusal of the sale deed by which PW-2 purchased the land shows that deed is numbered as 4877. Photocopy of the sale deed shows the date 21.12.72. The figure "72" in the date is written in Assamese and it appears that there is a mistake in describing the Sale Deed No. as 4877/92. This Court is not expressing any final opinion on the matter as the original is not before this Court. Photocopy of the sale deed shows the date 21.12.72. The figure "72" in the date is written in Assamese and it appears that there is a mistake in describing the Sale Deed No. as 4877/92. This Court is not expressing any final opinion on the matter as the original is not before this Court. When the sale deed, prima facie, appears to have been executed on 21.12.72, it cannot be said that such a sale deed has got no relevance with the subject matter. 21. This Court, as noted earlier, in Hindustan Paper Corporation (supra), had held that a witness can be allowed to be reexamined under Section 151 CPC after the witness had been examined, cross-examined and discharged earlier. As a proposition of law, it cannot be said that after the evidence of the defendant had started, under no circumstances, re-examination of the witness of the plaintiff is impermissible. It will all depend on the cause shown and the possibility of causing any prejudice to the defendant if re-examination is allowed. If acceptable grounds are assigned, it may be permissible to allow re-examination of the witness. The learned Court below, on consideration of the materials on record, was of the opinion that if the documents were not allowed to be exhibited, the plaintiff would suffer prejudice and accordingly, allowed the petition by granting opportunity to the defendant side to cross-examine PW-2. In the facts and circumstances of the case, it cannot be said that the plaintiff failed to show sufficient cause for re-examination of PW-2. The effort of the Court should always be to receive the best evidence available, albeit, without causing any prejudice to the adverse party. 22. In view of the discussions aforesaid, this Court is not inclined to interfere with the order dated 12.04.2010 passed by the learned Munsiff, North Salmara, Abhayapuri in Title Suit No. 72 of 2006 and accordingly, the petition is dismissed. No costs. Petition dismissed