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2014 DIGILAW 834 (CAL)

Ashok Kumar Bhotika v. Asha Rao

2014-08-29

SUBRATA TALUKDAR

body2014
JUDGMENT : Subrata Talukdar, J. 1. Both the civil revisional applications being CO 2108 of 2011 and CO 2533 of 2011 are taken up together for analogous hearing. 2. In CO 2108 of 2011 challenge is thrown by the petitioner to the order impugned dated 6th May, 2011, so far as the order relates to allowing DW2 to adduce evidence and also to the order impugned dated 18th May, 2011 both passed by the Learned 4th Civil Court (Senior Division) at Alipore in Title Suit no.20 of 2009. 3. The same order dated 6th May, 2011 is under challenge in CO 2533 of 2011 in which the defendant no.7 (since deceased) is the petitioner in so far as the order denied the defendant no.7/petitioner to file her separate written statement. The defendant no.4/opposite party no.5 is the applicant in CAN 1272 of 2014 which is an application for transposing the name of the applicant/defendant no.4/opposite party no.5 as the petitioner in place and stead of the deceased defendant no.7/petitioner in CO 2533 of 2011. Both the COs and the CAN are taken up for consideration together with the consent of the parties. 4. The short facts of the case, according to the petitioner in CO 2108 of 2011 are as follows:- (a) That the petitioner is the defendant in Title Suit no.20 of 2009 filed before the Learned 4th Civil Court (Senior Division) at Alipore. The OP1 is the plaintiff in the said suit which is filed for partition and accounts. (b) Written statement was filed jointly by the defendant nos.1 to 7 in the said Title Suit denying the material allegations in the plaint. The defendant no.2 filed a separate written statement also denying the material allegations in the plaint. (c) On 7th April, 2011 the defendant no.2 filed an application under Section 151 of the Code of Civil Procedure (for short CPC) praying for an order from the Learned Trial Court to modify its earlier order dated 6th January, 2010 by which DW 2 was allowed to adduce evidence. (d) The defendant no.1, being aggrieved by the said application under Section 151 CPC filed his written objection thereto and stated, inter alia, that the defendant no.2 entered appearance in the suit on 4th October, 2007 and filed a petition praying for service of the plaint upon him. (d) The defendant no.1, being aggrieved by the said application under Section 151 CPC filed his written objection thereto and stated, inter alia, that the defendant no.2 entered appearance in the suit on 4th October, 2007 and filed a petition praying for service of the plaint upon him. Thereafter the defendant no.2 filed his separate written statement on 8th February, 2008 and the same was accepted. Since no step was taken by the defendant no.2 on 6th January, 2010, the Learned Trial Court was pleased to close evidence. (e) DW 2 was cross-examined by the petitioner on 4th March, 2008 and the evidence of DW1 was closed on 11th July, 2001. The evidence of DW 2 having been closed at the stage of his cross-examination, it cannot be prayed on his behalf that he should be allowed to adduce further evidence at this stage. (f) The Learned Trial Court was pleased to allow by its order dated 15th March, 2010 the prayer of the petitioner for recall of its order dated 6th January, 2010. (g) On 6th May, 2011 after hearing the parties and upon consideration of records the Learned Trial Court was pleased to allow the prayer of DW2 to adduce evidence and fixed 18th May, 2011 as the date for cross-examination of PW1 by the defendant no.2. On 18th May, 2011, the above noted facts were brought to the notice of the Learned Trial Court by the present petitioner. However, the Learned Trial Court was pleased to fix the next date on 27th May, 2011 for cross-examination of DW1 by the defendant no.2 instead of PW1 as mistakenly fixed by earlier order dated 6th May, 2011. 5. Sri Probal Mukherji, Learned Senior Counsel appearing on behalf of the petitioner in CO 2108 of 2011 and for the respondent no.2 in the connected application being CAN 1272 of 2014 has submitted that the Learned Trial Court committed error in exercise of its jurisdiction by allowing cross-examination of DW2 without taking into consideration the fact that the evidence of the DW1 was closed on 11th July, 2001. Sri Mukherji points out that the Learned Trial Court ought to have considered that on 7th April, 2011 the defendant no.2 was present in the Court room and therefore, his plea that he could not move an application under Section 151 CPC cannot be accepted. 6. Sri Mukherji points out that the Learned Trial Court ought to have considered that on 7th April, 2011 the defendant no.2 was present in the Court room and therefore, his plea that he could not move an application under Section 151 CPC cannot be accepted. 6. Sri Mukherji has also argued that the Learned Trial Court illegally exercised its jurisdiction by not considering that steps were not taken by the defendant no.2 on 6th January, 2010, on which date the Learned Trial Court was pleased to close the evidence of DW2. 7. Sri Mukherji's further submission is that the Learned Trial Court fell into error by not considering the fact that on 15th March, 2010 the application filed by the plaintiff under Order 18, Rule 17 CPC along with applications filed by the defendants for adducing evidence were allowed by the Learned Trial Court and 26th March, 2010 was fixed as the date for adducing evidence of DW1 on recall by the plaintiff. Sri Mukherji therefore argues that there is no scope for the Learned Trial Court to allow the DW2 to adduce further evidence. 8. In support of his above contentions Sri Mukherji has additionally argued that the defendant no.4 in Title Suit no.20 of 2009 did not file her written statement and also did not contest the suit. Sri Mukherji opposes the prayers made in CAN 1272 of 2014 on the ground that there is no scope at the present for expunging the name of the defendant no.7-revisionist in CO 2533 of 2011 after recording the substitution of the names of her legal heirs who are already on record in CO 2533 of 2011. Sri Mukherji also opposes the prayer in CAN 1272 of 2014 filed in connection with CO 2533 of 2011 for transposing the name of the applicant/defendant no.4/OP-5 in place and stead of the deceased petitioner in CO 2533 of 2011. 9. According to Sri Mukherji the prohibition of Order 23, Rule 1A of the CPC, inter alia, provides for the conditions applicable to such transposition. He submits that such conditions for transposition as provided under Order 23, Rule 1A CPC are not satisfied in the facts of the present case. 10. It is his further submission that the application for transposition was made on the 12th of February, 2014. He submits that such conditions for transposition as provided under Order 23, Rule 1A CPC are not satisfied in the facts of the present case. 10. It is his further submission that the application for transposition was made on the 12th of February, 2014. Such application was admittedly made after 150 days of the death of the defendant no.7/revisionist in CO 2533 of 2011 on the 25th of November, 2011. Hence, there is no scope for the present to consider such prayer for transposition. 11. In support of his above argument Sri Mukherji draws the attention of this Court to the provisions of Order 23, Rule 3 CPC as well as Order 22, Rule 9. He argues that such transposition being claimed much beyond limitation, automatic abatement has set in following the death of the defendant no.7. Sri Mukherji points out that CAN 1272 of 2014 has been filed in respect of an application which has otherwise abated and there is no prayer in the said CAN 1272 of 2014 for setting aside such abatement. 12. The next limb of Sri Mukherji's submission is that from order dated 6th May, 2011 it shall appear that the written statement to Title Suit 20 of 2009 was filed by the defendant no.7/revisionist in CO 2533 of 2011 (since deceased). Such written statement specifically pertained to the deceased defendant no.7 and therefore, following the provisions of Order23, Rule 1A of the CPC there cannot be any ground for transposition at this stage. 13. Sri Mukherji has, on the point of adducing further evidence by DW2 drawn the attention of this Court to the fact that on 6th May, 2011 the cross-examination of DW2 was fixed after completion of the cross-examination of DW1. The cross-examination of DW1 was closed on the 11th of July, 2001 by Order no.103 of the Learned Trial Court. Therefore the question of reopening the evidence of DW1 cannot arise at this stage. He explains that with the closure of evidence of DW2, the orders impugned dated 6th May, 2011 and 18th May, 2011 for adducing of further evidence by DW2 could not have been passed. 14. Accordingly, Sri Mukherji prays for issuance of a Rule setting aside the orders impugned dated 6th May, 2011 and 18th May, 2011. 15. He explains that with the closure of evidence of DW2, the orders impugned dated 6th May, 2011 and 18th May, 2011 for adducing of further evidence by DW2 could not have been passed. 14. Accordingly, Sri Mukherji prays for issuance of a Rule setting aside the orders impugned dated 6th May, 2011 and 18th May, 2011. 15. Per contra, Sri Amit Pan, Learned Counsel appearing for the opposite parties in CO 2108 of 2011 and for the applicant in CAN 1272 of 2014 has argued as follows:- i. That the suit in issue being Title Suit no.20 of 2009 is a suit for partition. A suit for partition cannot be considered to have abated since all the legal heirs are on record. The fresh Vakalatnama was filed by the defendant no.7/mother (since deceased) before the Learned Trial Court. However, in spite of filing such Vakalatnama the additional written statement of the defendant no.7/mother (since deceased) was not accepted by the Learned Trial Court thereby compelling the defendant no.7 (since deceased) to file, during her lifetime, CO 2533 of 2011. ii. The OP5 in CO 2533 of 2011, being the daughter of the deceased defendant no.7, is the applicant in CAN 1272 of 2014. The prayer of the daughter, as already noted herein above in this judgment, is for transposition of her name in place and stead of the deceased petitioner in CO 2533 of 2011. Referring to the petitioner (in CO 2108 of 2011)/defendant no.1 (in Title Suit no.20 of 2009), Sri Pan points out that the deposition of the defendant no.1 in the said Title Suit no.20 of 2009 (previously numbered as Title Suit no.100 of 1994) is on his own behalf. iii. Sri Pan further points out that a purported joint written statement was filed in the said Title Suit on behalf of the defendant no.1 and the defendant no.7 (since deceased). For ignoring the joint written statement filed with the defendant no.1, defendant no.7 filed an application before the Learned Trial Court for acceptance of her sole written statement which was filed afresh. The application for acceptance of her sole written statement afresh was rejected by the Learned Trial Court vide its order dated 6th May, 2011 and aggrieved thereby the present revisional application being CO 2533 of 2011 has been filed by the defendant no.7. iv. The application for acceptance of her sole written statement afresh was rejected by the Learned Trial Court vide its order dated 6th May, 2011 and aggrieved thereby the present revisional application being CO 2533 of 2011 has been filed by the defendant no.7. iv. During the pendency of CO 2533 of 2011 the defendant no.7 died leaving behind the defendant no.4 and other defendants as her legal heirs. Since all the defendants are on record arrayed as opposite parties to CO 2533 of 2011, the defendant no.4 has filed the present application being CAN 1272 of 2014 for transposing her name as the revisionist in CO 2533 of 2011. It is submitted on behalf of the defendant no.4 that on the death of the defendant no.7/revisionist, the right to sue survives on the defendant no.4-applicant. v. Sri Pan further urges this Court to notice that it was the specific stand of the defendant no.7/revisionist in CO 2533 of 2011 that only the defendant no.1/OP2 had contested the applications filed by the defendant no.7 before the Learned Trial Court in support of her prayers for ignoring the purported joint written statement filed with the defendant no.1 and for accepting her written statement afresh. Both the said applications were disposed of against the defendant no.7 by orders of the Learned Trial Court dated 6th May, 2011 and 18th May, 2011. It is the specific case of the defendant no.4/daughter in the present CAN 1272 of 2014 that the prayer of the defendant no.7/deceased mother to contest Title Suit 20 of 2009 by filing a fresh written statement should be considered even at this stage on revision failing which her cause-of-action before the Learned Trial Court shall be rendered infructuous. It is necessary, according to Sri Pan, to take on record the separate written statement of the defendant no.1 (since deceased) and carry Title Suit no.20 of 2009 to its logical conclusion. vi. Drawing the attention of this Court to the order dated 6th January, 2010 passed by the Learned Trial Court in Misc. Case no.1 of 2010 in connection with Title Suit no.20 of 2009, Sri Pan points out that it is incorrect to state that the DW1 was on recall since the order of the said date i.e. 6th January, 2010, inter alia records that the evidence of DW2 is closed and 22nd January, 2010 was fixed for argument. Case no.1 of 2010 in connection with Title Suit no.20 of 2009, Sri Pan points out that it is incorrect to state that the DW1 was on recall since the order of the said date i.e. 6th January, 2010, inter alia records that the evidence of DW2 is closed and 22nd January, 2010 was fixed for argument. However, the Learned Trial Court thereafter fixed 22nd January, 2010 for cross-examination of DW1 by OPW2. vii. Sri Pan also brings to the notice of this Court the application filed on behalf of the plaintiff in Title Suit no.20 of 2009 under Section 151 CPC for reconsideration by the Learned Trial Court of its order dated 6th January, 2010. 16. By the said impugned order dated 16th May, 2011, the Learned Trial Court was pleased to, inter alia hold as follows:- (A) That two applications filed on 7th April, 2011 by the defendant no.2 for reconsideration of order dated 6th January, 2010 and the second filed on 19th April, 2011 filed by the defendant no.7 for accepting her separate written statement ignoring the joint written statement filed by the defendant no.1 on her behalf are taken up for consideration; (B) According to the Learned Advocate for the defendant no.2, the said defendant was ailing for a long time and at the time of cross-examination of DW2 the defendant nos.1 and 7 filed several petitions for adjournment on 28th April, 2009 and 2nd June, 2009. However, due to his illness the defendant no.2 could not depose on 17th August, 2009 and on 29th October, 2009 and therefore on the 6th of January, 2010 the evidence of DW2 was closed. Hence, DW2 sought an opportunity from the Learned Trial Court to depose. (C) On behalf of the defendant no.1 it was pointed out before the Learned Trial Court that on 6th January, 2010 the defendant no.2 did not take any steps leading to closure of his evidence. The defendant no.2 therefore cannot pray for adducing further evidence now. (D) The Learned Advocate for the plaintiff having raised no objection the Learned Trial Court was pleased to notice that the evidence of DW2 was closed long back on 6th January, 2010 and the petition dated 7th April, 2011 has been filed at a belated stage on 7th April, 2011. (D) The Learned Advocate for the plaintiff having raised no objection the Learned Trial Court was pleased to notice that the evidence of DW2 was closed long back on 6th January, 2010 and the petition dated 7th April, 2011 has been filed at a belated stage on 7th April, 2011. Considering the entire circumstances the Learned Trial Court was of the view that DW2 may be allowed to adduce evidence after the evidence of DW1 is closed. (E) With reference to the application filed on behalf of the defendant no.7 for acceptance of her separate written statement afresh the Learned Trial Court was pleased to come to the view that on perusal of the case record it transpires that the suit was instituted in 1994 and the defendant nos.1 and 7 jointly entered appearance by filing common Vakalatnama and written statement. The signature of the defendant no.7 appears on the written statement which was filed on the 26th April, 1995. Thereafter the defendant no.1 deposed both for himself and on behalf of the defendant no.7. According to the Learned Trial Court, it cannot be therefore accepted that the defendant no.7 did not contest the suit through the defendant no.1. (F) The Learned Trial Court was also pleased to notice the fact that the defendant no.7 resided with the defendant no.1 and therefore her plea that she did not know about the contents of the joint written statement cannot be accepted. Accordingly, the Learned Trial Court was pleased to reject the prayer of the defendant no.7 for filing a separate written statement. However, noticing the fact that the defendant no.7 filed a separate Vakalatnama the Learned Trial Court ordered that she may be allowed to contest the suit hereinafter. 17. By the second order impugned dated 18th May, 2011 the Learned Trial Court was pleased to notice the typographical error by which it appeared that the date was fixed for cross-examination of PW1 by defendant no.2. The Learned Trial Court however, was pleased to correct the same by ordering that the date is fixed for cross-examination of DW1 by defendant no.2 and fixed the next date on 27th May, 2011 for carrying out the said cross-examination. 18. Heard the parties. Considered the materials on record. 19. The Learned Trial Court however, was pleased to correct the same by ordering that the date is fixed for cross-examination of DW1 by defendant no.2 and fixed the next date on 27th May, 2011 for carrying out the said cross-examination. 18. Heard the parties. Considered the materials on record. 19. This Court is of the considered opinion that the Learned Trial Court vide Order impugned dated 6th May, 2011 came to the correct finding that Title Suit no.20 of 2009 being a suit for partition and the DW2 having filed medical documents in support of his illness, DW2 could not be shut out from adducing evidence. In the opinion of the Court considering such finding of the Learned Trial Court based on the factual matrix of the case the Learned Trial Court rightly allowed the petition of the defendant no.2 under Section 151 CPC and directed the adducing of evidence by DW2 on closure of the evidence of DW1. 20. In the further opinion of this Court the Learned Trial Court vide the order impugned dated 6th May, 2011 also came to the correct conclusion that upon institution of the suit in 1994 both the defendant nos.1 & 7 jointly entered appearance by filing a common Vakalatnama and a joint written statement. Thereafter the defendant no.1 not only deposed on behalf of himself but also on behalf of the defendant no.7. The Learned Trial Court also noticed the fact that during the pendency of the suit and prior to her death the defendant no.7 resided with her son, the defendant no.1 and it does not stand to reason that the defendant no.7 did not know about the contents of the suit. 21. The Learned Trial Court having held vide its order dated 6th May, 2011 that the evidence of DW1 on recall is "in motion" and such evidence "should be closed first", thereafter by subsequent order dated 18th May, 2011 correctly rectified the typographical mistake by substituting the cross-examination of PW1 with the cross-examination of DW1 and fixed the next date for such cross-examination of DW1 by the defendant no.2. 22. 22. This Court, in view of the reasoning applied by the Learned Trial Court vide its orders dated 6th May, 2011 and 18th May, 2011 as well as the provisions of Order 23, Rule 1A of the CPC is satisfied that invocation of Order 23, Rule 1A CPC in the facts of this case are not called for. This Court finds substance in the argument of Sri Mukherjee that the application for transposition made by the defendant no.4/OP5 after a substantial delay and in the teeth of the reasoning applied by the Learned Trial Court refusing the defendant no.4/OP5 to step into the shoes of the deceased defendant no.7 as applied for by her and also in view of the fact that the grounds for transposition provide under Order 23, Rule1A of the CPC are not satisfied in her case, the prayers made in CAN 1272 of 2014 must be refused. 23. In the backdrop of the above discussion the orders impugned dated 6th May, 2011 and 18th May, 2011 do not warrant any interference. 24. CO 2108 of 2011 and CO 2533 of 2011 along with CAN 6773 of 2012 and CAN 6775 of 2012 are accordingly thus disposed of. 25. There will be, however, no order as to costs. 26. Urgent certified Photostat copies of this judgment, if applied for, be given to the parties upon compliance of all requisite formalities.