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2016 DIGILAW 285 (ORI)

Khirodini Mallick v. Ramesh Soren

2016-04-11

K.R.MOHAPATRA

body2016
ORDER : K.R. Mohapatra, J. Order dated 02.03.2016 passed by the learned 2nd Additional Civil Judge (Senior Division), Bhubaneswar in C.S. No.408 of 2010 allowing an application filed under Order 18 Rule 17, CPC read with Sections 137 and 138 of the Indian Evidence Act, 1872 (for short, ‘the Act’) filed by the plaintiff to recall PW-1 for reexamination for the purpose of producing and proving the office copy of the letter dated 02.06.2003 is under challenge in this CMP. 2. Civil Suit No.408 of 2010 has been filed for declaration that the registered Power of Attorney bearing No.170 of 1991 executed by the plaintiff in favour of defendant No.2 is void and non est and consequently Registered Tripartite Deed No.86 of 2004 is void and non est and further declaration that the said deed does not confer any right, title and interest in favour of defendant No.3 in respect of the suit property. He also prayed for permanent injunction restraining the defendant No.3 from exercising any power pursuant to the Registered Tripartite Deed No.86 of 2004. 3. The defendants filed their respective written statement and contested the suit. On closure of evidence of PW-1, the plaintiff filed an application under Order 18 Rule 17, CPC read with Sections 137 and 138 of the Act to recall PW-1 for reexamination in order to produce and prove the office copy of the letter dated 02.06.2003. In the said application, the plaintiff referring to paragraph-4 of the deposition contended that pursuant to the execution of the Power of Attorney, the defendant No.3 did not arrange any customer till 2003. He did not act upon the terms and conditions of the Power of Attorney. Hence, the plaintiff informed the defendant No.2 that he had left with no option but to cancel the Power of Attorney and on 28.01.2003 through registered instrument No.113 of 2003, the plaintiff cancelled the Power of Attorney No.170 of 1991 informing the same orally to defendant No.2 so also in writing through his Advocate on 02.06.2003 by registered post. He also averred in the said petition that such an averment is also available in the plaint. Inadvertently, the said letter could not be produced and marked as exhibit though the same is available with the plaintiff. He also averred in the said petition that such an averment is also available in the plaint. Inadvertently, the said letter could not be produced and marked as exhibit though the same is available with the plaintiff. He further contended that the said letter is a vital document and the plaintiff will be highly prejudiced if the prayer to recall PW-1 to produce and prove said letter dated 02.06.2003 is not granted. 4. Defendant No.3 filed objection to the same contending that the petition is not maintainable both on fact and law. The same is not bona fide and is filed only to harass the defendant No.3 by lingering the suit and extract money from him. He further contended that paragraph-4 of the deposition of the plaintiff is beyond the pleadings which is inadmissible in evidence. Further, the office copy of the letter dated 02.06.2003 stated to have been issued by the Advocate of the plaintiff has neither been relied upon by the plaintiff nor attached to the plaint. He did not also file the same when his evidence was recorded. The document is a manufactured one and designed to patch up the lacunae in the evidence of PW-1. Such a plea to recall PW-1 is taken at a belated stage. The provision under Order 18 Rule 17 CPC is not meant to allow a party to patch up the lacunae in his evidence. At paragraphs 29 and 37 of the cross-examination of PW-1 has already deposed about letter dated 02.06.2003 and if the plaintiff is allowed to be recalled at this stage, he will certainly try to patch up the lacunae both in his pleading as well as evidence. Resultantly, defendant No.3 would be highly prejudiced. The plaintiff by recalling PW-1 seeks to introduce the document, which is stated to be available with him. It is not his case that the said document was lost and is subsequently discovered. Thus, he should not be allowed to produce and prove the said document resorting to Order 18 Rule 17 CPC. Hence, he prayed for rejection of the petition with cost. 5. Learned Civil Judge considering the rival contentions of the parties allowed the petition, which is challenged by defendant No.3 (petitioner herein) in the CMP. Mr. Thus, he should not be allowed to produce and prove the said document resorting to Order 18 Rule 17 CPC. Hence, he prayed for rejection of the petition with cost. 5. Learned Civil Judge considering the rival contentions of the parties allowed the petition, which is challenged by defendant No.3 (petitioner herein) in the CMP. Mr. Parhi, learned counsel for the petitioner reiterating the stand taken in the petition submitted that the plaintiff has never pleaded that he had intimated regarding cancellation of the Power of Attorney through his Advocate by registered post with A.D. It is the case of the plaintiff that he had issued the notice under Section 80 CPC through his Advocate by registered post with A.D. The said letter/notice issued through his Advocate, namely, Mr. Madan Mohan Basu (Annexure-8) is dated 19.02.2007 and not 02.06.2003, as alleged by the plaintiff. Further, drawing my attention to paragraph-37 of the deposition of PW-1, he submitted that the PW-1 had categorically admitted that he had not issued any written notice to defendant No.2 before cancellation of Ext.4, i.e., the Power of Attorney; but he had intimated about the same orally to defendant No.2 15-16 days prior to cancellation of Ext.4 in Secretariat Verandah. PW-1 further admitted in his evidence that he had not mentioned in his plaint that he had intimated the defendant No.2 regarding cancellation of Ext.4 through his Advocate. He also admitted that he had not mentioned in the plaint that he had lost the postal receipt through which he had intimated the defendant No.2 regarding cancellation of the Ext.4. Thus, by recalling PW-1, the plaintiff wants to patch up the lacunae by producing a document which he has already denied to have issued to defendant No.3 in his deposition. He relying upon a decision in the case of Vadiraj Naggapa Vernekar (D) through Lrs. Vs. Sharad Chand Prabhakar Gogate, reported in AIR 2009 SC 1604 submitted that the power conferred on a Court under Order 18 Rule 17 CPC is not to be invoked to fill up the lacunae in the evidence of the witness which has already been recorded. The power so conferred on a Court should only be exercised to clear an ambiguity that has arisen during the course of examination. By recalling PW-1, the plaintiff wants to introduce a document which he has not pleaded. The power so conferred on a Court should only be exercised to clear an ambiguity that has arisen during the course of examination. By recalling PW-1, the plaintiff wants to introduce a document which he has not pleaded. Though at paragraph-6 of the plaint, the plaintiff stated that information regarding cancellation of the Power of Attorney was informed to the defendant No.2 orally and also in writing on 02.06.2003 by registered post with A.D, it implies that the plaintiff himself had intimated regarding cancellation of the Power of Attorney to defendant No.2 and not through his Advocate. Now, the plaintiff wants to introduce a different story by recalling the PW-1 to the effect that the cancellation of the Power of Attorney was informed to defendant No.2 by his Advocate. Further, the plaintiff very cunningly stated that he had lost the registered receipt as well as the A.D. of the said document. Thus, reasonable conclusion can be drawn that the document intended to be introduced is a manufactured one and is an outcome of afterthought to patch up the lacunae. Thus, he prayed to quash the impugned order under Annexure-1. 6. Mr. R.B. Mohapatra, learned counsel for opposite party No.3 (defendant No.2 in the suit) supporting the case of the petitioner submitted that the only document communicated to the defendant Nos. 2 and 3 is the copy of the notice under Section 80 CPC dated 19.02.2007 and the said notice under Section 80 CPC does not mention regarding alleged letter dated 02.06.2003. Thus, the only conclusion that can be drawn is that letter dated 02.06.2003 is a manufactured one. Accordingly, the impugned order is not sustainable both in the eye of law and on fact and hence it is liable to be set aside. 7. Mr. R. Roy, learned counsel appearing for opposite party No.1 (plaintiff in the suit) refuted the contentions raised by Mr.Parhi and Mr.Mohapatra and submitted that at paragraph-6 of the plaint the plaintiff has categorically pleaded that information was sent to defendant No.2 regarding cancellation of the Power of Attorney both orally and in writing as well on 02.06.2003 by registered post with A.D. At paragraph-4 of his deposition, he corroborated the same and deposed that the Power of Attorney No.170/91 was cancelled informing the defendant No.2 orally and also in writing through his Advocate on 02.06.2003 by registered post. He also deposed that though the copy of the said letter is available with him (PW-1), the postal receipt has been lost and in spite of his sincere effort he could not trace out the same. He also deposed that he has filed the deed of cancellation and a copy of the said letter and prayed to mark the same as exhibit. In course of adducing evidence, he could not produce copy of the said letter dated 02.06.2003 to mark the same as exhibit due to inadvertence, for which he filed the application on 14.10.2015 under Annexure-6 immediately after closure of his evidence on 06.10.2015. Thus, no mala fide can be attributed for filing of such petition. Rather, omission to produce and prove the letter dated 02.06.2003 was a bona fide mistake. It is a vital document to reach at a just conclusion in the suit. He further relying upon a decision of this Court in the case of Para Biswal Vs. Janjali Khan, reported in AIR 2005 Ori 7 , submitted that the evidence beyond the pleading can be ignored and for that reason the entire evidence/affidavit cannot be discarded at the threshold. It is open to the defendants in course of cross-examination to confront the witness of the plaintiff. Further, the defendants can also bring to the notice of the Court, in course of hearing, that a particular evidence led is beyond /contrary and/or in variance to the pleadings. He relied upon another decision of this Court in the case of U.K.Ghosh Vs. Voltas Ltd. and Anr., reported in AIR 1994 Ori 131 and submitted that acceptance of prayer to recall a witness depends upon the fact and circumstances of each case and the principles cannot be put in a straight jacket formula. The Presiding Officer with his judicial experience shall exercise discretion with ultimate aim that the parties get full liberty to present their case and the Court is able to adjudicate properly the issue involved in the suit. Thus, he prayed for dismissal of the CMP. 8. Taking into consideration the submissions of learned counsel for the parties and on perusal of the record, it is apparent that the plaintiff in paragraph-6 of the plaint has stated that he had informed the defendant No.2 both orally and through letter dated 02.06.2003 by registered post regarding cancellation of the Power of Attorney. 8. Taking into consideration the submissions of learned counsel for the parties and on perusal of the record, it is apparent that the plaintiff in paragraph-6 of the plaint has stated that he had informed the defendant No.2 both orally and through letter dated 02.06.2003 by registered post regarding cancellation of the Power of Attorney. Further, at paragraph-4 of his deposition, he reiterated the same and deposed that he had informed the defendant No.2 regarding cancellation of the deed both orally and through his Advocate on 02.06.2003 by registered post. Thus, the plaintiff is consistent regarding issuance of letter dated 02.06.2003 intimating defendant No.2 regarding cancellation of the Power of Attorney. Further, at paragraph-11 of his deposition, he has denied the suggestion that the cancellation of the Power of Attorney through registered deed of cancellation dated 28.01.2003 was not within the knowledge of the defendants. Though Mr.Parhi referring to paragraph-37 of the deposition of PW-1 submitted that he (PW-1) had not issued any written notice to defendant No.2 regarding cancellation of Ext.4, the Power of Attorney, but on a plain reading of paragraph-37, it appears that the PW-1 has categorically stated that he has not sent any written notice to defendant No.2 before cancellation of Ext.4 and the letter dated 02.06.2003 was issued after cancellation of Ext.4 informing about cancellation of Ext.4. 9. From the foregoing discussions, it is apparent that the plaintiff has been consistent in his plea that information was sent to defendant No.2 regarding cancellation of the Power of Attorney vide letter dated 02.06.203. Thus, it cannot be said that the letter dated 02.06.2003 was subsequently procured or manufactured to patch up the lacunae in the case of the plaintiff even though the same is not reflected in the list of documents appended to the plaint or a copy of the same was not filed along with the plaint. It cannot be denied that the document which is not incorporated in the list of documents appended to the plaint or a copy of which is not filed along with the plaint can be admitted into evidence by taking leave of the Court, if the same is essential for proper adjudication of the issue involved. In the instant case, intimation regarding cancellation of deed of Power of Attorney is essential for adjudication of the dispute between the parties to the suit. In the instant case, intimation regarding cancellation of deed of Power of Attorney is essential for adjudication of the dispute between the parties to the suit. Hence, learned Court has committed no error in allowing the prayer to recall the PW-1 for producing and proving copy of letter dated 02.06.2003. However, the admissibility and veracity of the same can be considered only at the time of hearing. Thus, I find no reason to interfere with the impugned order. Accordingly, the CMP is dismissed.