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2013 DIGILAW 442 (CAL)

Aswini Kumar Maity v. Amar Nath De

2013-07-12

PRASENJIT MANDAL

body2013
Judgment :- Prasenjit Mandal, J. Challenge is to the Order No.195 dated December 11, 2012 passed by the learned Civil Judge (Junior Division), Additional Court, Tamluk in Title Suit No.91 of 2007 thereby allowing the objections of the plaintiffs against the examination-in-chief of the D.W.2 in consequence, the paragraph nos.7 to 14 of the examination-in-chief of the D.W.2 have been expunged. Being aggrieved, the defendant has come up with this application. The point involved in the matter is whether the expunction of certain paragraphs of evidence adduced under Order 18 Rule 4 of the C.P.C. is permissible when the matter appears to the Court to the effect that the secondary evidence is not permissible, unless, the circumstances as provided in Section 65 of the Indian Evidence Act are satisfied. The plaintiffs/opposite party nos.1 & 2 instituted a suit being Title Suit No.20 of 1995 before the learned Munsif, 1st Court, Tamluk for declaration that they were the owners of the suit property described in Schedule ‘Ka’ by purchase and that the defendant/petitioner herein had no right, title or possession over the suit property and a decree of declaration that the ex parte decree in Title Suit No.86 of 1990 passed by the 2nd Court of Munsif, Tamluk was obtained by the defendant on the basis of agreement for sale which was executed fraudulently and collusively and the same was void, illegal and not binding upon the plaintiffs and other consequential reliefs. The petitioner is contesting the said suit by filing a written statement denying the material allegations raised in the plaint. The evidence on behalf of the plaintiff has been closed and the suit is at the stage of recording the evidence on behalf of the defendant. The defendant tendered the evidence of the D.W.2 under Order 18 Rule 4 of the C.P.C. wherein as per observation of the learned Trial Judge, the paragraph nos.7 to 14 are not based on primary evidence but on secondary evidence without complying with the provisions of Section 65 of the Indian Evidence Act and as such, the learned Trial Judge allowed the objections of the plaintiffs and expunged those portions of the examination-in-chief of the D.W.2. Being aggrieved, this application has been preferred. Being aggrieved, this application has been preferred. Having heard the learned Counsel for the parties and on going through the materials on record, I find that immediately after filing of the deposition of the D.W.2 as examination-in-chief under Order 18 Rule 4 of the C.P.C., the plaintiffs filed an objection for expunction of paragraph nos.7 to 14. while the examination is to be tendered under Order 18 Rule 4 of the C.P.C., such examination-in-chief must contain narrative facts and so far as marking of documents is concerned, this chapter is left with the Court for deciding the same in accordance with law. The law on this point has been clearly indicated in the proviso to Sub-Rule 1 of Rule 4 of Order 18 of the C.P.C. So, save and except, the narrating part of the fact, the other portion of the deposition relating to marking of documents, etc. shall be dealt with in accordance with the proviso and it shall be done before the learned Trial Judge in presence of both the parties. But, there is no scope of making analysis of the evidence tendered under Order 18 Rule 4 of the C.P.C. as soon as the same is filed, but, the parties shall follow the proviso as to marking the documents as exhibits. In the case of Mustaque Ahmed Khan & ors. v. Mahammad Nasim & ors. reported in 2011(1) CLJ (Cal) 455, this Bench has held that the expunction of a portion of evidence is not permissible at that stage and the application raising any objection in this respect filed by either of the parties is to be kept pending for consideration at the time of writing the judgment. While arguing the case, Mr. Asis Ch. Bagchi, learned Advocate appearing for the petitioner, has drawn my attention by referring the decision of Ratan Das v. Goutam Das reported in 2010(1) CLJ (Cal) 902 that the photocopy of the original document is admissible when the original document is in possession of the landlord who is unheard of since long and foundation of the secondary evidence has been clearly set out in the examination-inchief on affidavit. The decision of Mohammed Abdul Ahmad v. Mohammed Abdul Gafoor reported in 2013(2) ICC 808 (Andhra Pradesh High Court) has also been referred to indicate that there is no process on demarking a document, once marked – Affidavit has already become a part of the record, alteration or substitution thereof would be nothing but that of examination-in-chief. Therefore, expunction as directed by the learned Trial Judge is not proper. Mr. Bagchi has also referred to the decision of Ishwardas v. State of M.P. reported in AIR 1979 SC 551 and thus, he has submitted that if identical issues are raised in both the suits between the same parties, the rule of res judicata binds not only on the parties but their privies also – same parties – new plea not pursued before the High Court. In the instant case, the document in question was marked exhibit in another suit being Title Suit No.86 of 1990 as exhibit 1 and the said document (biananama) was withdrawn by the law clerk. Since then it being non-traceable, the petitioner is entitled to adduce the secondary evidence. As recorded above, since the question of marking the document has been clearly indicated in the proviso to Sub-Rule 1 of Rule 4 of Order 18 of the C.P.C., I am of the view that at present, the question of expunction does not arise. If the same provision is not adopted and if the document is not marked exhibit by the Court in presence of both the parties in complying with the proviso to Sub-Rule 1 of Rule 4 of Order 18 of the C.P.C., the learned Trial Judge is at liberty to pass appropriate orders thereon. Above all, I find that the defendant had already been debarred for producing original biananama as per order no.116 dated April 25, 2008 as indicated in the impugned order and so, it is observed that the xerox of such biananama cannot be admissible in evidence. It is entirely within the discretion of the learned Trial Judge to decide in open Court in presence of both the parties. However, the expunction at this stage is not permissible, but, the objection shall be kept pending for decision at the time of the conclusion of the trial. In that view of the matter, I am of the opinion that the impugned order cannot be sustained and the same must be set aside. However, the expunction at this stage is not permissible, but, the objection shall be kept pending for decision at the time of the conclusion of the trial. In that view of the matter, I am of the opinion that the impugned order cannot be sustained and the same must be set aside. The application succeeds and is, therefore, allowed. The impugned order is hereby set aside. The objections filed by the plaintiff praying for expunction shall be kept pending for decision at the stage of the conclusion of trial. The learned Trial Judge shall proceed with the suit in accordance with law and the observations as made above. 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.