Judgment I.P. Mukerji, J. A Sisir Kumar Bhattacharjee allegedly made and published his last Will and Testament on 12th May, 1997. By this alleged instrument he appointed his son Gautam, a Dental Surgeon by profession as the executor. He left legacies to this son Gautam as well as to Subol his hearing challenged and mute son. On 7th July, 2002, Sisir Bhattacharjee died. The executor filed an application (PLA no. 6 of 2008), in this court, for obtaining probate of the will. Two sons of Sisir Bhattacharjee, Somnath Bhattacharjee and Tarun Kumar Bhattacharjee and his two daughters Namita Chatterjee and Gita Mukherji filed caveats objecting to the grant of probate in favour of Gautam Bhattacharjee. Namita Chatterjee is dead and substituted by her husband Dipti Chatterjee and her son Shantanu Chatterjee as defendant nos. 1A and 1B. The proceedings became a contentious cases. It was registered and marked as Testamentary Suit no. 15 of 2009. This is an application by the fourth defendant Somnath Bhattacharjee for an order that he may be allowed to be re-examined for “clarification/explanation of the answer to question no. 251”. Furthermore, Sudhamoy Gautam be recalled as a witness and be confronted with the letter dated 18th April, 1985. Now, to understand the nature and scope of this application, the progress of this proceeding before this court has to be understood. One of the attesting witnesses to the will was an advocate Sudhamoy Gautam. The plaintiff called him as a witness. He was examined on 13th April 2010. He was cross-examined on 13th April 2010 and 5th May 2010. During his cross-examination he was asked in question 44 by learned counsel whether he had done any legal work for Gautam Bhattacharjee. His answer was “no”. Then came the turn of the propounder Gautam Bhattacharjee to adduce evidence. He gave evidence on 12th July, 2010 to 2nd February 2011. Dr. Gautam Bhattacharjee was asked in cross-examination whether he knew Mr. Sudhamoy Gautam. He answered that he came to know him when he filed the probate application in 2008. The fourth defendant Somnath Bhattacharjee commenced giving evidence on or about 19th March, 2012. His examination-in-chief was concluded on 8th March, 2013. He was asked 114 questions. The cross-examination commenced on that day and continued up to 30th April, 2013. Sudhamoy Gautam. He answered that he came to know him when he filed the probate application in 2008. The fourth defendant Somnath Bhattacharjee commenced giving evidence on or about 19th March, 2012. His examination-in-chief was concluded on 8th March, 2013. He was asked 114 questions. The cross-examination commenced on that day and continued up to 30th April, 2013. On 30th April, 2013 Somnath deposed in his answer to question 251 in cross-examination that Sudhamoy Gautam had done some legal work for Gautam Bhattacharjee on 18th April, 1985. His examination was concluded soon thereafter. Evidence was also closed. This application was taken out on 15th January, 2015 after more than two and half years of closure of evidence. The fourth defendant, Somnath wants reopening of evidence to inter alia introduce the alleged letter dated 18th April, 1985 written by Sudhamoy Gautam to the Officer-in-Charge, P.S. Tollygunge, Calcutta – 700 026 with copies marked to “Shri. S. K. Bhattacharjee, C/o. Sushil Kumar Bhattacharjee”, “Sri Nihar Kumar Bhattacharjee”, “Sri. Sukumar Bhattacharjee and others”. The letter runs thus: SUDHAMOY GAUTAM Advocate 75/D ALIPORE ROAD CALCUTTA 27 To Dated – 18th April, 1985 The Officer-in-Charge, P.S. Tollygunge, Calcutta- 700 026 Ref:- Misc. Appeal No.387 of 1983 in the Court of 8th Additional District Judge at Alipore in the order of Title Suit No.395 of 1980, 3rd Munsif, Alipore. Dear Sir, I, on behalf of my client Dr. G. Bhattacharjee would like to inform you in connection with the above suit, that the learned Addl. District Judge, 8th Court, Alipore was pleased to pass an order dated 23.2.1985 to maintain status-quo injuncting Shri Sisir Kumar Bhattacharjee & Others of 12A, Southern Avenue, Calcutta-700 026 from interfering with the peaceful possession of my client in the suit premises at 12A, Southern Avenue, Calcutta-700 026. The learned Court further observed that a Licensee cannot be pushed out by force without the due process of law. My client runs the dental clinic in place of deceased Dr. A.K. Bhattacharjee, rendering public services to the people, particularly to the physically handicapped. It may be pointed out that an anonymous letter on the life of my client was addressed on 28th June, 1983, a photo-copy of which was submitted to the Police Station along with the petition on 26.7.1989 and on 2.8.1983. A.K. Bhattacharjee, rendering public services to the people, particularly to the physically handicapped. It may be pointed out that an anonymous letter on the life of my client was addressed on 28th June, 1983, a photo-copy of which was submitted to the Police Station along with the petition on 26.7.1989 and on 2.8.1983. I, therefore, request you kindly to see that no breach of peace or any kind of interference in respect of peaceful possession and dental practice takes place. Thanking you, Yours faithfully, (SUDHAMOY GAUTAM), ADVOCATE Copy to : (A/R. Calcutta Corporation C.H. No.00040 dt. 20.8.1984) (1) Shri S.K. Bhattacharjee, C/o. Late Sushil Kumar Bhattacharjee (2) Shri Nihar Kumar Bhattacharjee (3) Shri Sukumar Bhattacharjee, and others. Of 12A, Southern Avenue, Calcutta – 26 for information please. The importance of this letter is this. The substantial case of the defendants in this suit is that Gautam Bhattacharjee along with Sudhamoy Gautam had induced the testator to make the Will. If the evidence of Gautam is to be taken, he did not know Sudhamoy Gautam before filing the application for grant of probate. If this evidence is accepted then he and the lawyer Sudhamoy Gautam are cleared of conniving with each other to bring about the will. But if the defendants prove that Sudhamoy Gautam was known to Gautam Bhattacharjee much prior to that, the case of the defendants would be much more believable to the court. Furthermore, if that letter is proved it would show the untruthfulness of Sudhamoy Gautam as well as Gautam Bhattacharjee. Mr. Hirak Kumar Mitra learned senior advocate appearing for the propounder seriously opposed the grant of any prayer in this application. He said that the letter dated 18th April, 1985 was a forgery. Sudhamoy Gautam stepped down from the box on 5th May, 2010. The plaintiff’s evidence was concluded on 2nd February, 2011. After lapse of so much time the court should not accede to the prayer made on behalf of the fourth defendant. Even otherwise the court should not accede to their prayers. If a document had to be produced in evidence, the original had to be produced (Section 64 of the Indian Evidence Act, 1872) as Section 62 required primary proof of a document. Even otherwise the court should not accede to their prayers. If a document had to be produced in evidence, the original had to be produced (Section 64 of the Indian Evidence Act, 1872) as Section 62 required primary proof of a document. If the loss of the original could be proved, then only secondary evidence in the form of a copy letter could be allowed to be adduced in evidence (Section 63 of the Indian Evidence Act). Mr. Mitra argued that the letter was written to the Officer-in-Charge, Tollygunge Police Station with a copy marked to Sukumar Bhattacharjee the uncle of Somnath Bhattacharjee. On a request made by Mr. Somnath Bhattacharjee to the Joint Commissioner of Police dated 18th March, 2013 to provide the original letter, he replied on 8th April, 2013 obtaining a report from the Officer-in-Charge, Tollygunge, P.S. Kolkata and the Deputy Commissioner of Police, South Division, Kolkata that in spite of search no letter could be traced out in the records of the Tollygunge Police Station. Mr. Mitra also submitted that applying under the Right to Information Act was not the correct procedure. Somnath Bhattacharjee should have caused this court to issue a Subpoena to the Officer-in-Charge of Alipore Police Station asking him to produce the document. If he was unable to produce the document and it was proved that the document was lost could he allowed to use a copy of the document? He has shown me the general power of the court under Order XVIII of Rule 17 of the Code of Civil Procedure to recall a witness. He reminded us that this was the power enjoyed by the court and not by a party. The supplementary provision to this in Section 165 in the Evidence Act was also cited. He argued that the judge always had the power to adjudge the admissibility of evidence. The Supreme Court in M/s. Bagai Construction Vs. M/s. Gupta Building Material Store reported in AIR 2013 SC 1849 , cited by Mr. Hirak Kumar Mitra opined as follows:- 8. “In Vadiraj Naggappa Vernekar (dead) through LRs. Vs. Sharadchandra Prabhakar Gogate. (2009) 4 SCC 410 : ( AIR 2009 SC 1604 ), this Court had an occasion to consider similar claim, particularly, application filed under Order XVIII, Rule 17 and held as under: “25. Hirak Kumar Mitra opined as follows:- 8. “In Vadiraj Naggappa Vernekar (dead) through LRs. Vs. Sharadchandra Prabhakar Gogate. (2009) 4 SCC 410 : ( AIR 2009 SC 1604 ), this Court had an occasion to consider similar claim, particularly, application filed under Order XVIII, Rule 17 and held as under: “25. In our view, through the provisions of Order 18, Rule 17, CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said Rule is to enable the court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined. 28. The power under the provisions of Order 18, Rule 17, CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18, Rule 17, CPC.” On the other hand, Mr. Ahin Choudhury appearing for the defendants made a simple submission that the letter as received by Sukumar Bhattacharjee from Sudhumay Gautam was original his hands and all the contentions of Mr. Mitra would fail if that letter was treated as an original. I attach great weight to the submission of Mr. Ahin Choudhury that the letter of Sudhamay Gautam with a copy to Sukumar Bhattacharjee is to be treated as if Sukumar Bhattacharjee was the recipient of the original letter or a primary document. He is absolutely correct. When it is said in a letter that a copy is being sent to some persons, the correct position is that an original is being sent to each of these persons. The use of the word copy is a misnomer in this case. Therefore, what was in the possession of Sukumar Bhattacharjee was the original and a primary document in his hands, which was discovered by his nephew Somnath. It follows that the fourth respondent Somnath Bhattacharjee had an original in his hands too. Therefore, all the contentions of Mr. The use of the word copy is a misnomer in this case. Therefore, what was in the possession of Sukumar Bhattacharjee was the original and a primary document in his hands, which was discovered by his nephew Somnath. It follows that the fourth respondent Somnath Bhattacharjee had an original in his hands too. Therefore, all the contentions of Mr. Mitra about the absence of the original, absence of proof of the attempts made to locate the original, the inadmissibility of the document dated 18th April, 1985 do not have any merit. Now, let me deal with the judgment of the Supreme Court in M/s. Bagai Construction Vs. M/s. Gupta Building Material Store reported in AIR 2013 SC 1849 . First of all, the judgment only dealt with the provisions of Order XVIII of Rule 17 of the Code of Civil Procedure. It confers a power upon the judge to recall a witness whose examination has been concluded and ask such questions to him as the court thinks fit. The dictum of the Supreme Court is with regard to exercise of this power by the court. In that context it was held that this power was to be used sparingly, not to fill up any “lacuna” in the evidence of the witness but to clear ambiguities. Another procedure is mentioned in Chapter 10 of the Indian Evidence Act, 1872. It is in Sections 137 and 138. This was not before the Supreme Court. It deals with the examination-in-chief, cross-examination and re-examination of a witness. Section 138 deals with the order of examination of witnesses. It provides that a 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. Now, if reexamination is intended to introduce a new matter permission of the court is required. In that case, the other party has the right to cross-examine the witness. The sequence of events as made out by the fourth respondent is that he started giving evidence on 19th March, 2012. His examination-in-chief was concluded on or about 8th March, 2013. He was asked 114 questions in examination-in-chief. The cross-examination commenced on 8th March, 2013 and continued in part up to 12th March, 2013. The sequence of events as made out by the fourth respondent is that he started giving evidence on 19th March, 2012. His examination-in-chief was concluded on or about 8th March, 2013. He was asked 114 questions in examination-in-chief. The cross-examination commenced on 8th March, 2013 and continued in part up to 12th March, 2013. On 12th March, 2013, the fourth defendant laid his hands on some old files belonging to Sukumar Bhattacharjee and discovered the letter dated 18th April, 1985 written by Sudhamoy Gautam, written to the Alipore Police Station with a copy of the letter marked to Sukumar Bhattacharjee. Further copies were marked to ‘S.K. Bhattacharjee’, ‘Nihar Kumar Bhattacharjee’, ‘and others’. The testator Sisir Kumar Bhattacharjee had six brothers. One of them was Sushil Kumar Bhattacharjee. He died on 1st May, 1977 and was survived by sons all with the short names S.K. Bhattacharjee. Nihar Kumar Bhattacharjee was another brother of the testator. So was Sukumar Bhattacharjee, Sunil Kumar Bhattacharjee and Dr. Anil Kumar Bhattacharjee. By a letter dated 19th March, 2013 the defendants disclosed four documents by letter. One of the documents was by the letter dated 18th April, 1985. During cross-examination of the fourth defendant he stated that he knew that Sudhamoy Gautam had done some work for Gautam Bhattacharjee inasmuch as this letter referred to Dr. Gautam Bhattacharjee as a client of Sudhamoy Gautam. This was stated by the fourth defendant in answer to question no.251. Shortly afterwards, his evidence was concluded on 30th April, 2013. Thereafter, the matter rested for a long time. On 15th January, 2015 the present application was filed. There is absolutely no doubt that there is almost unpardonable delay in filing this application. Almost two years have gone by, after evidence was closed. It is also true that in this period of two years the plaintiff took no steps so that the suit be decreed or this court did not have the time to take it up. In my opinion, every court has a duty to search for the truth and to reach it as far as possible. Here is a letter of 1985 which if proved would have a substantial effect on the suit. It might to some extent strengthen the argument of the caveators that Gautam Bhattacharjee with the help of Sudhamoy Gautam exerted influence on the testator to make and publish the Will. Here is a letter of 1985 which if proved would have a substantial effect on the suit. It might to some extent strengthen the argument of the caveators that Gautam Bhattacharjee with the help of Sudhamoy Gautam exerted influence on the testator to make and publish the Will. The truthfulness of two witnesses would come into question. If a piece of evidence has substantial bearing on the outcome of the trial the court should not refuse to admit the document, on technical grounds of delay, admissibility etc., because if too much importance is given to these technical considerations, it would result in failure to perceive the truth and hence will result in failure of justice. Of course, this does not mean that if a document is inadmissible it would be admitted by the court. Hence, if the letter dated 18th April, 1985 is allowed to be proved by the fourth defendant by reopening the evidence, the plaintiff will not be prejudiced as no steps to obtain the decree has been taken by him for nearly two years, after closure of evidence. Even the appellate court has the power to admit new evidence under Order XLI of Rule 27 of the Code of Civil Procedure. For all those reasons, this application is allowed by passing orders in terms of prayer (a) and prayer (b) of the petition. Liberty to the parties to mention the suit for fixing of a date for early trial thereof. Certified photocopy of this Judgment and order, if applied for, he supplied to the parties upon compliance with all requisite formalities.