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2019 DIGILAW 705 (CAL)

Kishore Kumar Khaitan v. Praveen Kumar Singh

2019-07-10

SABYASACHI BHATTACHARYYA

body2019
JUDGMENT : 1. The defendants in a suit for declaration of tenancy right and permanent injunction have preferred the instant revisional application, challenging an order allowing the application of the plaintiff/opposite party under Order XVIII Rule 2A, read with Section 151, of the Code of Civil Procedure, permitting the opposite party to adduce further evidence to bring on record the original of a purported tenancy agreement, a photocopy of which was previously marked as exhibit no.1. 2. Learned counsel for the petitioners argues that a photocopy of the said document had already been exhibited and, as such, there was no scope of granting further opportunity to the opposite party to produce the original thereof. 3. It is argued that the application for production of additional evidence was filed at an advanced stage of the suit and was intended to protract the litigation. 4. In the absence of any explanation as to the inordinate delay in filing the said application, the trial court, it is submitted, acted without jurisdiction in allowing the same. That apart, it is argued that the opposite party sought to fill up his lacunae in not producing the document previously, by the present application. 5. It is further argued that the scope of Order XVIII Rule 2A of the Code is restricted to production of a witness, that too suo moto, by the court and there was no scope under the said provision, of the court permitting the production of a document on the prayer of a party. 6. It is submitted that on March 5, 2008 the plaintiff/opposite party had filed an application under Order XIII Rule 10 of the Code of Civil Procedure. The said application was allowed by the trial court vide Order No. 12 dated March 17, 2008, thereby calling for the case record of a miscellaneous appeal, bearing Miscellaneous Appeal No. 145 of 1998 from the office of the Additional District Judge, First Court at Howrah, as because the documents relevant for the peremptory hearing of the suit were lying therein. 7. It is submitted that evidence had been led in connection with the said miscellaneous appeal, including a photocopy of the purported tenancy agreement-in-question being exhibited therein. 8. It is further argued that a photocopy of the said document was again exhibited in the suit itself as long back as on April 8, 2008, without objection, and marked as Exhibit -1. It is submitted that evidence had been led in connection with the said miscellaneous appeal, including a photocopy of the purported tenancy agreement-in-question being exhibited therein. 8. It is further argued that a photocopy of the said document was again exhibited in the suit itself as long back as on April 8, 2008, without objection, and marked as Exhibit -1. 9. The said purported agreement (dated April 17, 1998) had been taken in custody by the CID for the purpose of ascertaining the veracity of the signature thereon. It is submitted that the evidence of the defendants' witnesses was finally closed on November 27, 2013. 10. Thereafter the opposite party waited for about three-and-half years and filed the current application under Order XVIII Rule 2A of the Code only on April 3, 2017. 11. It is thus submitted that the plaintiff/opposite party was well aware of the document, at least from the inception of the suit, and waited for an inordinately long time to make the present prayer, that too long after the evidence in the suit was closed. 12. As such, the trial court acted without jurisdiction in giving a premium to such delay by permitting the original of the said document to be produced as evidence at this belated stage. 13. Learned counsel for the plaintiff/opposite party submits that the photocopy of the document-in-question was already exhibited, both in the miscellaneous appeal and as Exhibit -1 in the suit, the latter without objection. As such, the plaintiff is not seeking to fill up any lacunae, more so since the photocopy was already exhibited without objection. It is argued that there is little scope for the petitioners to object to the said original, having not objected to its photocopy when the same was marked as Exhibit -1 in the suit. 14. Learned counsel for the opposite party further submits that a report of the CID, indicating that the signature on the disputed document was authentic, was also marked as an exhibit in the suit. 15. As such, it is argued that there is no impediment to bring the said original on record, particularly in view of a specific direction given by the Supreme Court in Civil Appeal No. 1101 of 2006. 15. As such, it is argued that there is no impediment to bring the said original on record, particularly in view of a specific direction given by the Supreme Court in Civil Appeal No. 1101 of 2006. By the said order dated February 13, 2006, the Supreme Court observed inter alia that the genuineness of the document-in-question, which was seriously disputed by the defendants, its admissibility in evidence and validity, have to be decided in the suit. Therefore, it was observed, one of the questions that had to be decided was whether the letter (the purported tenancy agreement was in the form of a letter) was genuine and if it was genuine, whether it was capable of bringing into existence a lease or accepted as evidencing a lease transaction between the parties. The Supreme Court held that since that was the document on which the suit was based, the finding on the genuineness and validity of the document and the alleged transaction created by it would have a great bearing on the claim of possession by the plaintiff. The Supreme Court observed that, no doubt, the signature of defendant no. 1 found in the document was admitted but with an explanation that it was a got-up document. 16. It is submitted that, in the light of the said observations, the veracity of the document and the signature thereon, both in original, had to be looked into by the court below for coming to a finding on the question of its validity, as mandated by the Supreme Court. 17. Thus, for the ends of justice, the trial court was justified in permitting the document to be brought in as evidence. 18. The first question which crops up in this matter is the scope of Order XVIII Rule 2A of the Code of Civil Procedure, which is quoted below: "Notwithstanding anything contained in clauses (1) and (2) of Rule 2, the Court may for sufficient reason go on with the hearing, although the evidence of the party having the right to begin has not been concluded, and may also allow either party to produce any witness at any stage of the suit." 19. Rule 2A is not an oft-quoted provision of law and even does not find place in some of the text books on the subject. Rule 2A is not an oft-quoted provision of law and even does not find place in some of the text books on the subject. Where found, Rule 2A is introduced as a High Court amendment, applicable to Assam and Nagaland, Calcutta: Andaman and Nicobar Islands. However, learned counsel for the petitioners fairly produces a photocopy of the Calcutta Gazette of November 17, 1927, wherein the said Rule was introduced to the First Schedule to the Code of Civil Procedure, 1908 and was intended to come into force from January 1, 1928. 20. In the present case, however, although Order XVIII Rule 2A was resorted to by the opposite party, the prayer for production of a witness to prove the original of the purported tenancy agreement also had an element of Order XVIII Rule 17 of the Code. Rule 17 reads as follows: "Court may recall and examine witness. - The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit." 21. As such, the present matter falls within the common territory of the said two provisions, at least as far as the yardsticks are concerned. 22. As Rule 17 deals with recall and examination of a witness, whereas the application-in-question was for bringing in evidence the original of exhibit no.1 for the first time without 'recall' of any witness, there is a subtle distinction between the scope of Rule 17 and the nature of the present prayer. 23. Yet, Rule 2A also deals with the production of a witness and not a document, as such having a divergence with the case at hand. 24. A composite reading of Rule 2 and the amended Rule 2A would go on to show that the latter was primarily intended to operate as a proviso to Rule 2. Rule 2 of Order XVIII is set out below: "2. Statement and production of evidence. - (1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. Statement and production of evidence. - (1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. (2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case. (3) The party beginning may then reply generally on the whole case. (3-A) Any party may address oral arguments in a case, and shall, before he concludes the oral arguments, if any, submit if the Court so permits concisely and under distinct headings written arguments in support of his case to the Court and such written arguments shall form part of the record. (3-B) A copy of such written arguments shall be simultaneously furnished to the opposite party. (3-C) No adjournment shall be granted for the purpose of filing the written arguments unless the Court, for reasons to be recorded in writing, considers it necessary to grant such adjournment. (3-D) The Court shall fix such time-limits for the oral arguments by either of the parties in a case, as it thinks fit. (4) Omitted." 25. The scheme of Rule 2 deals primarily with the order/chronology in which evidence is to be adduced by the parties. As per sub-rule (1) of the said Rule, on a day of hearing, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. Sub-rule (2) provides that, thereafter, the other party shall state his case and produce his evidence and may address court generally on the case. 26. Sub-rule (3) contemplates a reply by the party who began, generally on the whole case. 27. Rule 2A adds that, notwithstanding anything in clauses (1) and (2) of Rule 2, the court has the power to proceed with the hearing, although the evidence of the party having the right to begin was not concluded. It further empowers the court to allow either party to produce any witness at any stage of the suit. 28. However, Rule 2A adds that the court's power is circumscribed by the necessity to find sufficient reasons to do so. 29. It further empowers the court to allow either party to produce any witness at any stage of the suit. 28. However, Rule 2A adds that the court's power is circumscribed by the necessity to find sufficient reasons to do so. 29. The expression "sufficient reason" is also an in-built test governing Rule 17, which permits the court to recall any witness at any stage of a suit. 30. Previously Rule 17-A of Order XVIII provided that the court could also permit production of evidence at a later stage upon satisfaction of the court that such evidence was not previously known or, after the exercise of due diligence, could not be produced by the party intending to adduce evidence when the said party was leading his evidence. 31. Despite the omission of Rule 17-A, general judicial consensus is that, by such omission, the power of the court to permit such evidence to be taken at a later stage has not been curtailed altogether but that the court still has the power to do so under its inherent powers and under the general provisions of the Evidence Act. 32. In general, Rule 17 is resorted to for the purpose of recalling a witness to prove evidence at a later stage. 33. However, a word of caution has also been sounded in recent judicial pronouncements as to the same standards as enumerated in the original Rule 17-A having to be imported in such a situation, being that the party intending to adduce such evidence at a later stage has to satisfy the court that the said evidence was not available or could not be produced despite due diligence at the time of adducing evidence. 34. Since Order XVIII Rule 2A provides for a similar power in case of fresh evidence sought to be adduced at a later stage and also puts in the restriction of sufficient reason to circumscribe such power, it is evident that similar tests as govern the recall of witness and production of evidence at a later stage have to be applied to Rule 2A also. 35. In the present case, the primary premise of the opposite party for production of the document-in-question was that the said original was lying in the office of the CID, Government of West Bengal and had to be produced for the ends of justice. 36. 35. In the present case, the primary premise of the opposite party for production of the document-in-question was that the said original was lying in the office of the CID, Government of West Bengal and had to be produced for the ends of justice. 36. The flimsy excuse provided in the application under Order XVIII Rule 2A, read with Section 151, of the Code of Civil Procedure, for the delay occasioned, was that the advocates of the plaintiff were under the impression that as and when a photocopy of the said document was marked as exhibit on a previous occasion, no formalities were necessary to again mark the document as exhibit. 37. Learned counsel for the opposite party in this court adds an additional ground in support of the necessity to produce such original. It is argued that there was an observation of the Supreme Court, passed in Civil Appeal No. 1101 of 2006, which arose from the present suit, that the genuineness of the purported tenancy agreement was disputed and therefore, its admissibility in evidence and validity had to be decided in the suit. 38. It was further observed by the Supreme Court that one of the questions that had to be decided was whether the letter was genuine and if so, whether it was capable of bringing into existence a lease or accepted as evidence of a lease transaction between the parties. It was also observed that the suit was based on the document and the finding on the genuineness and validity of the document and the alleged transaction would have a great bearing on the claim of possession by the plaintiff. 39. The Supreme Court further observed, "No doubt the signature of defendant No.1 found in the document" was admitted but with an explanation that it was a got-up document. A suit had also been filed by the defendant challenging the document. 40. The opposite party relies on such direction of the Supreme Court in this court to argue that such a direction made it incumbent upon the trial court to call for the document in order to comply with the directive of the Supreme Court. 41. However, the Supreme Court, it is noticed, did not specifically direct the trial court to call for the original of the said document. 41. However, the Supreme Court, it is noticed, did not specifically direct the trial court to call for the original of the said document. It was merely observed that the genuineness of the document, its validity and admissibility in evidence was an important factor in deciding the suit. 42. It is noteworthy that the said order of the Supreme Court was passed as long back as on February 13, 2006. Thereafter, on March 17, 2008, the application of the plaintiff/opposite party under Order XIII Rule 10 of the Code of Civil Procedure was allowed, and the documents filed in Miscellaneous Appeal No.145 of 1998, including a photocopy of the tenancy document-in-question, were exhibited in the suit. 43. Moreover, on April 8, 2008, the P.W. 1 was examined and a photocopy of the said document was again exhibited as Exhibit -1 in the suit, that too without any objection. 44. The opposite party was drowsy during the entire period and did not call for the original of the document. 45. The slumber of the opposite party persisted even on November 27, 2013, when the cross-examination of the last witness of the defendants was closed, thereby concluding the evidence in the suit. Thereafter, the suit reached the argument stage and three-and-half years after the closure of the evidence, the plaintiff/opposite party suddenly did a Rip Van Winkle and on April 3, 2017 filed the application-in-question, under Order XVIII Rule 2A read with Section 151, of the Code of Civil Procedure, seeking leave to adduce further evidence to bring the original of exhibit no.1 on record. 46. Although the order of the Supreme Court observed in the passing that the veracity and admissibility of the purported tenancy agreement was vital for an adjudication of the suit, the said observation did not comprise of a direction on the trial court to mandatorily call for such document. 47. It is well-settled that the party pleading a particular fact as to prove its own stand on the basis of concrete evidence. It was for the plaintiff/opposite party to call for the original of the purported tenancy agreement, which was lying with the CID, but it chose to wait for more than 11 years even after the Supreme Court's order to take out such application. It was for the plaintiff/opposite party to call for the original of the purported tenancy agreement, which was lying with the CID, but it chose to wait for more than 11 years even after the Supreme Court's order to take out such application. As such, the application was ex facie intended to fill up the lacunae of the plaintiff/opposite party and the trial court ought not to have granted such prayer at such a belated stage, when the suit was already at the argument stage for more than three years. 48. The plaintiff/opposite party cannot now seek shelter under the observation of the Supreme Court, since they chose not to pay heed to such observation for more than a decade after the Supreme Court's order. 49. The observation of the Supreme Court was made in an interlocutory proceeding and was, after all, tentative in nature, which could not compel the court to take such document on record. 50. As far as the scope of Order XVIII Rule 2A is concerned, the present case was not one where the court suo moto called for the document. Even if the order was passed suo moto, there had to be sufficient finding by way of reason for the court to allow the plaintiff to produce the document at such a belated stage. 51. Strictly speaking, neither Rule 2A nor Rule 17 of Order XVIII are applicable to the present case, since it was not the court which sought for the witness but the court was only dealing with a prayer of the plaintiff in that regard. Moreover, the opposite party did not seek to recall or even call for a witness but specifically sought to adduce a document in the suit at the argument stage. 52. A photocopy of the same document had already been marked as exhibit no.1, that too without objection. It is further submitted on behalf of the opposite party that even a report from the CID was filed and marked as an exhibit in the suit, which corroborates the authenticity of the signature on the document. This apart, even the Supreme Court observed that the signature on the document was admitted. 53. It is further submitted on behalf of the opposite party that even a report from the CID was filed and marked as an exhibit in the suit, which corroborates the authenticity of the signature on the document. This apart, even the Supreme Court observed that the signature on the document was admitted. 53. As such, there was no compelling necessity for the trial court to peruse the original of the purported document, in view of the existence of Exhibit -1, coupled with the alleged report of the CID, which are already a part of the body of the evidence. 54. Hence, there was no sufficient reason to permit the plaintiff/opposite party to come up with such an application for production of the original as per their whims and fancy, three-and-half years after the closure of evidence. Not a single line of proper explanation was furnished in the application for the inordinate delay occasioned in making it. Hence, the trial court acted patently without jurisdiction in allowing the application under Order XVIII Rule 2A of the Code of Civil Procedure and permitting the original of the purported tenancy agreement to be produced at such a belated stage. 55. In the circumstances, C.O. No.1282 of 2019 is allowed on contest, thereby setting aside the impugned order. The plaintiff/opposite party is permitted to withdraw the costs, if deposited/paid in terms of the impugned order. 56. There will be no order as to costs. 57. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.