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2015 DIGILAW 679 (CAL)

Bhagabati Chakraborty v. Mita Maity

2015-08-12

SIDDHARTHA CHATTOPADHYAY

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JUDGMENT : Siddhartha Chattopadhyay, J. This revisional application under Article 227 of the Constitution of India arises from the order dated 22.04.2013 and 27.11.2013 wherein the learned Court below has rejected the petitioner’s prayer for calling for a relevant document from the Criminal Court so that the original deed could be proved and exhibited in the title suit. Learned Court below vide order dated 27.11.2013 had rejected application of the petitioner/plaintiff on the ground that the case diary being a document of prosecution had no connection with the suit. 2. Being aggrieved and dissatisfied with the said order the petitioner/plaintiff has appeared before this Court for her redress. It appears from the record that petitioner was directed to serve the copy of the reivisional application upon the opposite parties but by Speed Post as well as upon the advocate appearing on behalf of them before the Trial Court and after serving the same she filed affidavit of service which is taken on record. Since the defendants/opposite parties are reluctant to appear to so the matter is taken up for hearing in absence of them. 3. At the time of hearing of Learned Counsel appearing on behalf of the petitioner submits that if a vital document is lying in the custody of other authority by operation of law how could he produce the same. It appears from the plaint that she had mentioned about the alleged deed. In the list of witnesses she has mentioned that she wanted to examine the Investigating Officer of the criminal case. 4. On perusal of the plaint it appears to me that the case solely depends on the said deed on the basis of which she had claimed her title and interest. It also transpires from the plaint itself that criminal case was filed against her under Section 420, 465, 467, 468 and 419 of India Penal Code and the Police Officer has seized that original deed of purchase of the petitioner. 5. As per Order VII Rule 14 of Code of Civil Procedure, reads as follows:- “R.14. It also transpires from the plaint itself that criminal case was filed against her under Section 420, 465, 467, 468 and 419 of India Penal Code and the Police Officer has seized that original deed of purchase of the petitioner. 5. As per Order VII Rule 14 of Code of Civil Procedure, reads as follows:- “R.14. Production of document on which plaintiff sues or relies.-(1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint. (2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is. [(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.] (4) Nothing in this rule shall apply to document produced for the cross examination of the plaintiff’s witnesses, or, handed over to a witness merely to refresh his memory.” 6. As per Civil Procedure Code Court has the power to summon anybody and to pass an order for production of document which is relevant for effective and appropriate adjudication. Here the plaintiff’s/petitioner’s case depends upon the impugned deed. It appears from the averment and copy of the orders of the Learned Court below that the impugned deed is lying in the case diary in connection with the criminal case in which this plaintiff/petitioner is an accused and charge-sheet has been submitted. 7. In such circumstances, it was the duty of the Court to pass an order in favour of the plaintiff/petitioner directing the Investigating Officer of the criminal case to produce the impugned deed for the purpose of comparison of handwriting and other related issues. 7. In such circumstances, it was the duty of the Court to pass an order in favour of the plaintiff/petitioner directing the Investigating Officer of the criminal case to produce the impugned deed for the purpose of comparison of handwriting and other related issues. The Learned Court below who also under a legal obligation to inform the Criminal Court concerned to send the impugned deed and if it is in the custody of Learned A.P.P., he would be asked to produce the C.D. But in this case most evasively and unconvincingly Learned Court below refrained from making such order. 8. Apart from statutory mandate, natural justice also demands that a justice-seeker must be given an opportunity to prove his or her allegation. The doctrine of necessity should not be overlooked by any Court. Therefore, it is imperative on the part of the Court to tide over the situation by a proper order to fill up the vacuum rather than allowing the problem to boil over. 9. Accordingly impugned order/orders dated 22.04.2013 & 27.11.2013 are hereby set aside. This revisional application succeeds. Learned Court below is directed to call for the impugned deed lying in the custody of Criminal Court and if the case is not transferred from the Learned Additional Chief Judicial Magistrate in that case Investigating Officer will be asked to produce the C.D. by collecting deed from the Learned Additional Chief Judicial Magistrate concerned and if it is already transferred and is lying with the Learned A.P.P. in that case, the Learned A.P.P. concerned be asked to produce the impugned deed before the Learned Trial Court. 10. Thereafter, the Learned Civil Judge (Junior Division) shall give an opportunity of being heard to both parties and thereafter, he shall pass an order and shall send the deed in a sealed envelope to the Learned Additional Chief Judicial Magistrate by taking a Xerox certified copy of the same in his record. Learned Court below is directed to act as per above direction. 11. Accordingly revisional application is allowed ex parte but without cost. The impugned orders are hereby set aside. 12. Let a copy of this order be sent to the Learned Court below for information and taking necessary action in accordance with law. 13. Urgent certified photocopy of this Judgment and Order, if applied for, be supplied to the parties upon compliance with all requisite formalities.