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2020 DIGILAW 95 (CAL)

Sishu Mangal Parsat v. Matilal Bhattacharya

2020-01-24

MANOJIT MANDAL

body2020
JUDGMENT Manojit Mandal, J. - Challenge is to the Order No. 93 dated 28.11.2019 and Order No. 98 dated 26.06.2019 passed by the learned Civil Judge (Junior Division), 1st Court, at Krishnagar, District- Nadia, in connection with Title Suit No. 272 of 2005 corresponding to CIS Registration No. 975 of 2014. 2. The short fact is that the petitioners /plaintiff herein instituted a suit for declaration and permanent injunction and other reliefs. The defendant/opposite party No. 1 entered appearance in the suit and filed written statement against the said plaint. 3. The said suit has been posted for trial. Plaintiff/ petitioner No. 1 has deposed himself as PW 1 and he has filed examination in chief in form of affidavit before the learned Trial Court. The examination in chief of the plaintiff/ petitioner No. 1 has been completed and his cross-examination is deferred time to time. 4. During the time of cross-examination of PW 1, the defendant/opposite party No. 1 filed an application praying for disallowing the plaintiff /petitioner No. 1 from deposing in the suit and the said application was allowed and learned Trial Court expunged the evidence of PW 1, Ramendra Nath Sarkar, from the suit. 5. Thereafter, on 28.02.2019 plaintiffs/petitioners filed an application for recalling the said order of expunging the evidence of PW 1 and the said application dated 28.02.2019 filed by the plaintiffs/petitioners was rejected by the order impugned. Being aggrieved, this application has been preferred. 6. Now the point for consideration is whether the impugned order should be sustained? 7. Upon hearing the learned Counsels appearing for the parties and on going through the materials on record, I find that the plaintiff/petitioner No.1 was examined in chief as PW 1 and his examination in chief on affidavit was tendered before the learned Trial Court and crossexamination of this witness was deferred time to time. It transpires further that learned Trial Court passed an order and thereby allowed the petition of the defendant under Section 151 of the Code of Civil Procedure dated 27.01.2017 and expunged the evidence of PW 1 from the suit. This Court is of the view that learned Trial Court has committed error in allowing the said application and expunging the evidence of PW 1 since the evidence of PW 1 on affidavit has already been recorded. This Court is of the view that learned Trial Court has committed error in allowing the said application and expunging the evidence of PW 1 since the evidence of PW 1 on affidavit has already been recorded. There is no provision under the law to expunge the evidence of a witness in such a situation. It appears that the learned Trial Court has wrongly passed the said order which is not in accordance with law and is not required in the interest of justice and thereby, an error has been committed while exercising the jurisdiction and power vested with it while passing the order. Therefore, intervention by this Court under Article 227 of the Constitution of India is required. 8. The evidence recorded by the learned Trial Court i.e. the examination in chief of PW 1 is on record. The evidentiary value of the said witness can be considered at the time of appreciation of evidence of the witness in accordance with law and the evidence of the witness cannot be struck off in this manner. In view of the same, learned Trial Court committed error in not recalling the order expunging the evidence available on record. 9. The learned Trial Judge has committed errors of law in allowing the application under Section 151 of the Code of Civil Procedure dated 27.01.2017 and in rejecting the application under Section 151 dated 28.02.2019. As such the impugned orders cannot be supported. In consequence, it should be set aside. 10. Accordingly, the orders dated 27.01.2017 and 28.02.2019 passed by the learned Trial Court are set aside. The learned Trial Court is requested to conclude the cross-examination of PW 1 without granting any unnecessary adjournments. 11. Accordingly, the revisional application is allowed. 12. There will be no order as to costs. 13. Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.