JALADHAR GHOSH Vs. SHASADHAR GHOSH

JUDGEMENT

(1.) THIS application is at the instance of the plaintiff/petitioner and is directed against the order no.247 dated June 29, 2010 passed by the learned Civil Judge (Junior Division), Additional Court, Ghatal in Judicial Misc. Case No.1 of 2004 thereby rejecting an application for making a document as exhibit. The said Judicial Misc. Case has arisen out of the Title Suit No.14 of 2004.

(2.) THE case in short is that the petitioner and the opposite party no.9 filed a suit being the Title Suit No.14 of 2004 (previously Title Suit No.28 of 2001) for declaration and permanent injunction in respect of the property as mentioned in the schedule to the plaint. At the time of filing the suit, the plaintiffs moved an application for injunction with regard to 'ka' schedule property and the learned Trial Judge passed an order of status quo ante by an order dated March 11, 2002. But such order of status quo was not maintained by the opposite party no.1 and for that reason the petitioner filed an application under Order 39 Rule 2A of the Code of Civil Procedure and that application has been numbered as Judicial Misc. Case No.24 of 2003. Subsequently, the Judicial Misc. Case has been renumbered as 1 of 2004. In that misc. case, the petitioner wanted to prove a letter dated November 6, 2001 written by Jaladhar Ghosh and Ashok Kumar Ghosh to the S.D.L. & L.R.O., Ghatal, District Midnapore. That letter was not produced by the State / opposite party. In the circumstances, the petitioner wanted to adduce secondary evidence which was refused by the learned Trial Judge. Being aggrieved, this application has preferred.

(3.) THIS being the position, for the purpose of disposal of this application, it is apparent that the said letter had been received by the office of the concerned S.D.L. & L.R.O. but the same was not produced by the State / opposite party at the time of hearing. THIS being the position, the petitioner is permitted to adduce secondary evidence under Section 65(a) of the Indian Evidence Act. Therefore, the impugned order cannot be sustained. It is hereby set aside. The plaintiff/petitioner is permitted to adduce secondary evidence to prove the letter dated November 6, 2001 of Jaladhar Ghosh and Ashok Kumar Ghosh.