KAUSHIK CHAKRABORTY Vs. BAKUL BALA UPADHYAYA

JUDGEMENT

(1.) This application is directed against the Order No.115 dated February 5, 2010 passed by the learned Judge, Small Causes Court, Sealdah in Title Suit No.13 of 2006.

(2.) The short fact is that the plaintiffs / petitioners herein instituted a suit being the Title Suit No.13 of 2006 before the learned Judge, Small Causes Court, Sealdah for partition, declaration, permanent injunction and other reliefs. The opposite party no.s 2 & 3 are contesting the said suit by filing a written statement and the opposite party no.3 filed a counter-claim in the said suit. The plaintiffs filed a written statement to the counter-claim filed by the opposite party no.3. The evidence on behalf of both the parties in the plaint case had been closed. At the stage of examination of the D.W.s in the counter-claim, the plaintiffs / petitioners herein tendered evidence-in-chief by way of an affidavit as D.W.1. Two letters of the advocates had also been filed for marking the same as exhibit. The opposite parties raised objection against the evidence-in-chief and they prayed for striking out the evidence of the D.W.1 in the counter-claim. That application was allowed in part by the impugned order. Being aggrieved, this application has been preferred. Now, the question is whether the impugned order should be sustained.

(3.) Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the matter involved in this revisional application is over the expunge of certain portions of the evidence-in-chief tendered by the plaintiffs as D.W.1 in the counter-claim filed by the defendant no.3 / opposite party no.3 herein. The learned Trial Judge allowed that application in part. While discussing the grounds for rejection in part, the learned Trial Judge had observed that as per application for expunction the paragraph no.s 5, 6, 7 & 8 of the D.W.1 in the counter-claim were contrary to the defence stand taken by the plaintiffs and those paragraphs were beyond the pleadings of the parties. Ultimately, he concluded that paragraph no.s 2, 3, 4, 6 & partly 8 of the affidavit-in-chief should be expunged.