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2016 DIGILAW 675 (GAU)

NARAYAN MAZUMDAR v. PABITRA MAZUMDAR

2016-07-22

N.CHAUDHURY

body2016
JUDGMENT : N. Chaudhury, J. This application under Article 227 of the Constitution of India is directed against the order dated 18.12.2015 passed by learned Munsiff No.1, Kamrup (M) at Guwahati in Title Suit No.192/2010. By that order the learned Munsiff allowed an application under Order 18 Rules 4(2) and 17 of the Code of Civil Procedure filed by the plaintiff at the argument stage and the suit was fixed for additional evidence thereby. 2. The sole opposite party herein as plaintiff instituted Title Suit No.192/2010 in the Court of learned Munsiff No.1, Kamrup at Guwahati against the petitioners and one Bijit Mazumdar as main defendants and four others as proforma defendants praying for declaration of right, title and interest, recovery of khas possession and permanent injunction. In that suit a reference was made that the properties inherited by the parties to the suit had been subjected to partition by a family settlement dated 04.01.1987 and on that basis the plaintiff was entitled to the suit land. 3. The principal defendants having appeared contested the claim of the plaintiff and denied the claim of family settlement as pleaded in the plaint. The proforma defendants did not appear and did not file any written statement. After both parties had concluded their evidence and the suit was fixed for argument, at this stage, plaintiff filed an application under Order 18 Rules 4(2) and 17 read with Section 151 of the CPC praying for allowing the plaintiff to prove and exhibit plaint of Title Suit No.64/2014 by way of re-examination of PW 1. It is stated in paragraph 4 of the application that the plaintiff came to know about the document only in the month of June, 2015 and this is why it could not be produced before the Court as evidence. The aforesaid Title Suit No.64/2014 was instituted by one Jyotish Mazumdar against Debeswar Mazumdar both of whom are proforma defendants in the present suit and neither the plaintiff has any claim against them nor did they contest the suit. It is the case of the plaintiff that the proforma defendant No.8 being plaintiff instituted Title Suit No.64/2014 against proforma defendant No.7 Debeswar Mazumdar as sole defendant and therein a reference as to family settlement was made. According to the plaintiff, the plaint of the aforesaid suit is relevant for proper adjudication of the matter in dispute. 4. It is the case of the plaintiff that the proforma defendant No.8 being plaintiff instituted Title Suit No.64/2014 against proforma defendant No.7 Debeswar Mazumdar as sole defendant and therein a reference as to family settlement was made. According to the plaintiff, the plaint of the aforesaid suit is relevant for proper adjudication of the matter in dispute. 4. The defendants filed written objection, inter alia, on the ground that the provision of Order 18, Rule 17 was not applicable in the case in hand, the plaintiff cannot fill up any lacunae and that the subject matter of the aforesaid Title Suit is different from the present Title Suit and so the application should be rejected. 5. Having heard the learned counsel for the parties and on perusal of their respective pleadings the learned Court by order dated 18.12.2015 allowed the application and held that no prejudice would be caused to the defendants thereby. Accordingly, PW 1 was allowed to be reexamined on the aforesaid new fact as to institution of Title Suit No.64/2014. 6. I have heard Mr. D. Mazumdar, learned senior counsel assisted by Mr. S. Saikia, learned counsel for the petitioners and Mr. R.J. Bordoloi, learned counsel for the opposite party. 7. The provision of Order 18, Rule 17 CPC has been incorporated in the CPC to cater to the need of an urgent situation. But it is established law that power under the provisions has to be sparingly exercised and in appropriate cases. The rule is not to be taken recourse to as a general rule merely on the ground that this recall and reexamination would not cause any prejudice to the parties. The scheme or intention of Order 18, Rule 17 CPC is not to allow a particular party to fill up the lacunae in the evidence of the witnesses which has already been recorded but only to clear any ambiguity that may have arisen during the course of his examination. In the case of Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate, reported in (2009) 4 SCC 410 the Hon'ble Supreme Court has laid down this law in paragraphs 28 and 29 which are quoted below for ready reference :- "28. In the case of Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate, reported in (2009) 4 SCC 410 the Hon'ble Supreme Court has laid down this law in paragraphs 28 and 29 which are quoted below for ready reference :- "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. 29. It is now well settled that the power to recall any witness under Order 18, Rule 17 CPC can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit, but as indicated herein above, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination." 8. Besides, the plaint of the present suit does not contain any reference about the earlier suit between the proforma defendant No.7 and proforma defendant No.8. This revision petition has not been initiated by any of the proforma respondent No.7 and proforma respondent No.8 who are said to be principal parties in the aforesaid suit. No foundation has been laid in the pleading of the present suit for leading any evidence with respect to a suit between proforma defendant No.7 and proforma defendant No.8 and so the impugned order allowing PW 1 to be reexamined for incorporating the document in record would amount to permitting evidence beyond pleadings. The law in regard to evidence beyond pleading has been settled way back in 1930 in the case of Siddik Mahomed Shah v. MT Saran [ AIR 1930 PC 57 (1)]. Since thereafter it has been established law that any amount of evidence led beyond pleadings would neither be permitted nor considered for the purpose of adjudication of a suit. The same law has been followed in different judgments and an example can be cited in the case of Kattinokkula Murali Krishna v. Veeramalla Koteswara Rao & others [ (2010) 1 SCC 466 ]. 9. Per contra, Mr. The same law has been followed in different judgments and an example can be cited in the case of Kattinokkula Murali Krishna v. Veeramalla Koteswara Rao & others [ (2010) 1 SCC 466 ]. 9. Per contra, Mr. R.J. Bordoloi, learned counsel for the opposite party, would argue that the principle of not permitting evidence beyond pleading may be a settled law but in appropriate cases when parties are aware about the points in issue, in that event they may be permitted to lead such evidence. In support of his contention he has placed reliance in the case of Standard Chartered Bank v. Andhra Bank Financial Services Ltd. and others, reported in (2006) 6 SCC 94 . In paragraph 71 of the judgment the Hon'ble Apex Court has reiterated the law in the case of Bhagwati Prasad v. Chandramaul [ AIR 1966 SC 735 ]. It is the case of Mr. Bordoloi that the plaint in Title Suit No.64/2014 has been relevant on the proposition that there was a family partition on 04.01.1987 and the document in question will show that the same property was involved in the aforesaid Title Suit. 10. Having heard Mr. Bordoloi, learned counsel for the opposite party, I have perused the copy of the plaint in Title Suit No.64/2014 which has been annexed as Annexure-F to the revision petition. It appears from a perusal of the aforesaid document that it was a suit between proforma defendant No.8 and proforma defendant No.7 of the present suit in regard to a deed of settlement dated 09.03.2001. It has no relevance to the family settlement dated 04.01.1987 as pleaded in paragraph 5 in the plaint of the present suit. The proforma defendant No.7 and proforma defendant No.8 have not contested the present Title Suit No.192/2010. The suit is being contested by the principal defendants No.1 to 4 alone and they have denied the story of family settlement dated 04.01.1987. Under such circumstances, it is not clear as to how the aforesaid document can be of any use for the purpose of adjudicating the case of the plaintiff. The plaintiff has closed his evidence. Thereafter the defendants led evidence and their witnesses were also cross-examined and this is how the suit was fixed for argument. Under such circumstances, it is not clear as to how the aforesaid document can be of any use for the purpose of adjudicating the case of the plaintiff. The plaintiff has closed his evidence. Thereafter the defendants led evidence and their witnesses were also cross-examined and this is how the suit was fixed for argument. At that stage an application has been filed for bringing some document on record as exhibit which does not have any reference in the plaint. In that view of the matter the impugned order would amount to allowing evidence beyond pleading. 11. Considering the entirety of the circumstances I do not feel that the document sought to be incorporated at this stage is relevant for the purpose of proper adjudication of the matter in dispute or that it is presumably beyond pleadings. Accordingly, the revision petition stands allowed. The impugned order is set aside. Interim order, if any, stands automatically vacated.