SHREEPROKASH MISHRA Vs. SABITRI SANTHALIAY

JUDGEMENT

(1.) THIS application is at the instance of the plaintiff and is directed against the order dated May 5, 2011 passed by the learned Additional Civil Judge (Junior Division), Sealdah in Ejectment Suit No.51 of 2004 thereby expunging certain portion of the evidence adduced by the P.W.2 on behalf of the plaintiff under Order 18 Rule 4 of the C.P.C.

(2.) THE plaintiff / petitioner herein instituted an ejectment suit against the defendant / opposite party on the ground of reasonable requirement in respect of the premises in suit as described in the plaint. The defendant is contesting the said suit by filing a written statement denying the material allegations raised in the plaint. The suit was at the stage of peremptory hearing. The P.W.1, that is, the plaintiff had been examination-in-chief, cross and discharged. Then the P.W.2, son of the plaintiff tendered evidence under Order 18 Rule 4 of the C.P.C. stating, inter alia, that he is a diploma holder in Optomatric Science and he requires many rooms for his chamber, anti chamber, one room for sitting patients, one room for optical treatment, another room for keeping medical equipment, medicines and another room for accommodating his staff, etc. An objection was raised against such type of evidence by way of an affidavit contending, inter alia, by the defendant that such type of evidence was beyond the pleadings. Upon hearing both the sides, the learned Trial Judge passed an order of expunction of such portion of the evidence which was, according to him, beyond the pleadings, by the impugned order. Being aggrieved, the plaintiff has filed this application.

(3.) MR. Sunil Kumar Brahmachari, learned Advocate appearing for the petitioner, has referred to the decision of Amiya Kumar Majumdar v. Gouri Prosad Ghosh reported in 1989(1) CLJ 261 and another decision of Mustaque Ahmed Khan & ors. v. Mahammad Nasim & ors. reported in 2011(1) CLJ(Cal) 455 passed by this Bench and thus, he submits that expunction of certain portion of the evidence is not permissible at the stage of recording evidence. Such evidence may be considered at the time of writing judgment. Relying on these two decisions, Mr. Brahmachari has submitted that the expunction of the evidence by the impugned order was not justified at that stage and so, the impugned order should be set aside.