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2015 DIGILAW 41 (CAL)

Ramdeo Yadav v. Arati Sarkar

2015-01-19

ARIJIT BANERJEE

body2015
JUDGMENT : The petitioner is the defendant in an eviction suit being T.S. No. 82 of 2001 pending before the C.J. (J.D), 2nd Court, Serampore. In the plaint it is averred that the monthly rent payable by the defendant to the plaintiff is Rs. 200/- (Two Hundred) and that the defendant had been paying such rent even to the predecessor-in-interest of the plaintiff. 2. The defendant filed an application under Section 17(2) of the West Bengal Premises Tenancy Act, 1956 and a dispute arose as regard the quantum of monthly rent. The plaintiff wanted to tender in evidence the counterfoils of the money receipts issued by the plaintiff’s predecessor-in-interest in support of the plaintiff’s case that the monthly rent was Rs.200/-(Two Hundred). Initially the said two documents were not exhibited but marked for identification. 3. In course of hearing of the application under Section 17(2), the plaintiff filed a petition praying for leave to mark the said counterfoils as exhibits. The learned Judge considered the submissions of the both parties and came to a finding that the counterfoils were mentioned in the written affidavit-in-chief filed by the plaintiff but were not exhibited. The learned Judge was of the opinion that the plaintiff would be prejudiced if he is not permitted to mark those documents as exhibits and the defendant should get an opportunity to cross-examine the witness on this point. Accordingly, the learned Judge gave a chance to the plaintiff to recall P.W. 1 for marking those counterfoils as exhibits with liberty to the defendant to cross-examine the witness on this point. Being aggrieved by this the defendant is before this Court by way of the instant revisional application. 4. It is submitted on behalf of the defendant/petitioner that in the pleadings of the plaintiff there is no mention of any rent receipt or any counterfoil of such rent receipt. As such, the plaintiff should not be permitted to tender in evidence the said counterfoils, as no evidence should be permitted to be given on a point not taken in the pleadings. In this connection learned Counsel has relied on a decision of this Court in the case of (Sk. Rejabul Haque Vs. Sk. As such, the plaintiff should not be permitted to tender in evidence the said counterfoils, as no evidence should be permitted to be given on a point not taken in the pleadings. In this connection learned Counsel has relied on a decision of this Court in the case of (Sk. Rejabul Haque Vs. Sk. Serajuddin & Ors) reported in 2012(2) I.C.C. 498, wherein at Paragraph 18 this Court, relying on an Apex Court decision held that the evidence beyond the pleading can neither be permitted to be adduced nor can such evidence be taken into consideration. Learned Counsel also relied on a decision of the Apex Court in the case of (M/s Gian Chand & Brothers and another Vs. Rattan Lal @ Rattan Singh) reported in 2013(2) I.C.C. 107, in which at paragraph 26 the Supreme Court held that the defendants could not have been permitted to lead any evidence when nothing was stated in the pleadings. 5. Appearing on behalf of the opposite party/plaintiff learned Counsel submitted that it is not necessary to mention in the pleading each and every document that the plaintiff wishes to tender in evidence in support of his case. Dispute arose regarding the quantum of rent between the parties and as such the plaintiff is entitled to tender in evidence such documents as would support the plaintiff’s case. Such documents would include the said counterfoils. Learned Counsel further submitted that the two decisions relied upon by the learned Counsel for the petitioner have no application to the facts of the instant case. 6. I have considered the rival contentions of the parties. Strictly speaking, in my opinion, it cannot be said that the said counterfoils which the plaintiff is seeking to exhibit before the learned lower Court, are de hors the pleadings filed by the plaintiff. In the plaint it is clearly stated that the monthly rent payable is Rs.200/-(Two Hundred). Such quantum of rent is disputed by the defendant in the proceedings under Section 17(2) of The West Bengal Premises Tenancy Act, 1956. To support his case, in my opinion, the plaintiff is entitled to exhibit the counterfoils if he is able to do so in accordance with law. Such quantum of rent is disputed by the defendant in the proceedings under Section 17(2) of The West Bengal Premises Tenancy Act, 1956. To support his case, in my opinion, the plaintiff is entitled to exhibit the counterfoils if he is able to do so in accordance with law. I do not think that the learned Trial Judge has acted with any material irregularity or has committed any illegality in permitting the plaintiff to recall his witness and tender the said counterfoils in evidence if he is otherwise able to prove such documents. No miscarriage of justice has been caused to the defendant since liberty has been reserved to the defendant to cross-examine the plaintiff’s witness if he is so recalled. 7. In my opinion, two decisions cited by the learned Counsel for the petitioner would have no manner of application to the facts of the instant case since according to me the evidence that is sought to be tendered is not strictly beyond the pleadings of the plaintiff. 8. For the reasons aforesaid stated, I am not inclined to interfere with the impugned order. This application accordingly fails and is dismissed with any order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the parties on compliance of usual formalities.