TRILOKESHWAR SHIB THAKUR Vs. REKHA RANI BANDYOPADHYAY

JUDGEMENT

(1.) This revisional application, at the instance of the plaintiff is directed against the order no. 264 dated Sept. 03, 2013 passed by the learned Civil Judge (Junior Division), Amta, Howrah in Title Suit No. 140 of 1985 (hereinafter referred to as "the said suit"). By the impugned order, the learned Court below rejected the applications filed by the plaintiff, the petitioner herein to take the suit off from the argument board and to issue summons to the two witnesses for adducing evidence.

(2.) The brief facts relevant for the decision in this application are that the one Joydeb Chakraborty, claiming to be a shebait of the deity Sri Sri Trilokeshwar Shib Thakur and for himself filed the said suit, against opposite parties herein and their predecessors, for declaration and injunction before the learned Court below. The claim of the plaintiff in the said suit was based on an alleged deed of gift dated Sept. 10, 1985 executed by his father, since deceased, thereby transferring the suit property in his favour. Some of the opposite parties herein are contesting the suit. The said Joydeb Chakraborty, himself as PW-1 adduced evidence in the said suit. During his evidence the PW-1 tendered a deed of gift bearing no. 5057 of 1985 (hereinafter referred to as "the said deed of gift") allegedly executed by his father, The PW-1, however, could not prove the said deed of gift as required by law and the same was only marked as 'X' for identification. The plaintiff took no step to call any other witness to prove the deed of gift. After the evidence on behalf of the contesting defendants was concluded, the learned Court below placed the suit in the argument board. After conclusion of the argument by the plaintiff the contesting defendants opposite parties started their oral argument. The learned advocate for the contesting defendants stressed on the fact that the said deed of gift was not proved and consequently, the same was not marked as an exhibit. He argued that the Court cannot take the said alleged deed of gift into consideration. At this stage, on Sept. 03, 2013 the plaintiff filed the applications for taking the suit off the argument board and for issuance of summons to the two named witnesses to adduce evidence in order to prove the said deed of gift. In the said application, it was alleged that there was a mistake on the part of the plaintiff not to examine the relevant witnesses to prove the said deed of gift. It was further alleged that if the said witnesses are not allowed to be examined, the said deed of gift being a vital document shall remain not proved resulting in irreparable damage to the plaintiff. The contesting defendants opposed the said application. The learned Court below found that on Aug. 06, 2010 during cross-examination of PW-1, the said alleged deed of gift was marked as 'X' for identification and after the evidence of the witnesses of the plaintiff and the defendants was closed, the suit was fixed for argument. During his argument the learned advocate for the contesting defendants relied on the point that the said alleged deed of gift was not marked as an exhibit, rather it was marked as 'X' for identification. On these findings, by the impugned order, the learned Court below held that by filing the application the plaintiff wants to fill up the lacunae in not to proving the said deed of gift and rejected the applications.

(3.) Assailing the impugned order passed by the learned Court below Mr. Bhaskar Ghosh, learned senior counsel appearing for the plaintiff petitioner first submitted that the learned Court below committed an error of law in not appreciating the scope and effect of Sec. 30 of the Code of Civil Procedure, 1908 (in short, "the Code"). He submitted that in the instant case the original gift deed which is sought to be proved by the plaintiff is already on record and due to inadvertence there was an omission on the part of the plaintiff to call for the two witnesses mentioned in the application and to prove the said deed of gift. It was strenuously argued for the petitioner that as per clause (b) of Sec. 30 of the Code, at any stage of the suit the Court has the power to issue summons to any person to adduce evidence. In support of such contention, the learned counsel for the petitioner relied on the Single Bench decision of this Court in the case of Durga Prosad Saraogi & Ors. -vs.- Manick Chand Saraogi, reported in 69 CWN 242. Mr. Ghosh further cited the decision of the Supreme Court in the case of Maria Margarida Sequeira Fernandes & Ors.- vs. -Erasmo Jack De Sequeira, 2012 5 SCC 370 and submitted that in civil cases the Court should adhere to Sec. 30 of the Code for ascertaining the truth. It was argued that in the present case, the learned Court below fell into an error of law in passing the impugned order without considering the provisions of Sec. 30 of the Code to ascertain the truth of the contents of the said deed of gift. It was urged that it is settled law that apart from the provisions under Order 18 Rule 17 of the Code, even the Court in exercise of its inherent power under Sec. 151 of the Code can permit reopening of evidence and/or recalling of witnesses for re-examination after evidence led by the parties is concluded and arguments have commenced. Therefore, according to Mr. Ghosh, the learned Court below committed a patent illegality in passing the impugned order without referring to any of the said provisions of the Code. In support of the contention that in an appropriate case, the Court can exercise its discretion under Sec. 151 of the Code to permit reopening of evidence even after evidence led by the parties is concluded and arguments have commenced, Mr. Ghosh cited the decisions of the Supreme Court in the cases of K.K. Velusamy -vs.- L.N. Palanisamy, 2011 11 SCC 275 and Bagai Construction -vs.- Gupta Building Material Store, 2013 14 SCC 1. Urging all these grounds, the learned senior counsel for the petitioner pressed for setting aside of the impugned order passed by the learned Court below. Relying upon the decision of the Supreme Court in the case of Surya Dev Rai -vs.- Ram Chander Rai & Ors., 2003 AIR(SC) 3044 he lastly submitted that this Court in exercise of its jurisdiction under Art. 227 of the Constitution of India would not only set aside the impugned order but would also direct the learned Court below to forthwith issue summons to the witnesses named by the petitioner in its application.