ARCHANA DEVI Vs. KAJI MAJIBUR RAHAMAN

JUDGEMENT

(1.) The present revisional application is directed against Order No. 130 dated 2nd January, 1995 passed by the 9th Court of Assistant District Judge at Alipore in T.S. No. 42 of 1990. By the impugned order the learned Judge has rejected the petition for expunging Exhibit 9 and also has further directed production of the physician for formation of satisfaction about the veracity of the medical certificate.

(2.) Mr. Bidyut Banerjee, learned Advocate appearing on behalf of the petitioner, has first dealt with the first portion of the order, namely, rejection of a petiton for expunging Ext.

(3.) Mr. Banerjee has referred to the provisions contained in Section 62 of the Evidence Act and has contended that in view of the evidence of P.W. 2 that the original is lying with the office of the P.W. 2 and in absence of production of the same, the Carbon copy of the self-same letter cannot be taken as a piece of evidence. Mr. Banerjee has also elucidated by way of reference to Section 62 of the Evidence Act, namely, the condition for reception of secondary evidence when possible. There is likelihood of some substance in the contention of Mr. Banerjee but to repeal that view Mr. Bhaskar Bhattacharjee, learned Advocate appearing on behalf of the opposite parties, has stated that the recipient of the letter has not come forward to dispute that he has not received the letter in question. The dispute is sought to be raised by a third party who is impleaded as a party in the suit. According to Mr. Bhattacharjee, unless the dispute is raised by the recipient of the letter about the reception of the said document, in absence of such dispute, it can be taken that no dispute has been raised. According to Mr. Bhattacharjee, save and except the recipient of the letter, nobody else can dispute the factum of reception of the said letter. When the recipient of the letter is silent, then according to Mr. Bhattacharjee, the insistence of compliance of technical procedure of the Evidence Act is by way of academic exercise. This Court also feels that in absence of challenge and / or dispute being raised by the recipient of the letter it is not open to anybody else to challenge the authenticity of the valid reception of the same,more so, when it is otherwise favoured by surrounding circumstances. As such, this Court feels that Mr. Banerjee's client does not have the locus standi to challenge the same and such technical formalities may be by way of academic significance.