JOYDEB CHAKRABORTY Vs. REKHA RANI BANDYOPADHYAY

JUDGEMENT

(1.) This revisional application, at the instance of the plaintiff is directed against the order no. 264 dated September 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 September 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 September 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 August 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 Section 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 Section 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 and 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 and Ors.- vs. -Erasmo Jack De Sequeira reported in (2012) 5 SCC 370 and submitted that in civil cases the Court should adhere to Section 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 Section 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 Section 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 Section 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 reported in (2011) 11 SCC 275 and Bagai Construction -vs.- Gupta Building Material Store reported in (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 and Ors. reported in AIR 2003 SC 3044 he lastly submitted that this Court in exercise of its jurisdiction under Article 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. However, Mr. Haradhan Banerjee, learned counsel appearing for the contesting defendants opposite parties contended that the impugned order passed by the learned Court below suffers from no infirmity calling for any interference by this Court. He submitted that in the case of Durga Prasad Saraogi (supra) cited by the petitioner, the learned Single Judge of this Court was dealing with the power of the Court under Section 30 of the Code to direct any party to a suit to discover any particular document which appears to be relevant for deciding an issue at any stage of the suit. According to him, with incorporation of the amended provisions of Rule 1 of Order XIII of the Code mandatorily requires the plaintiff and the defendant to disclose their respective documents on or settlement of issues and, as such, the said decision in the case of Durga Prasad Saraogi (supra) is of no assistance to the plaintiff, the petitioner herein. The opposite parties stressed that inasmuch as the PW-1 in his evidence was unable to prove the said deed of gift, the same was marked as 'X' for identification. Even after conclusion of the evidence of PW1, nothing was done on behalf of the plaintiff to call any other witness to prove the alleged deed of gift as required under Section 123 of the Transfer of Property Act, 1882. It was only after conclusion of the evidence of the witnesses of the respective parties and the argument for the plaintiff was over, when the learned advocate for the contesting defendants placed the fact that the said deed of gift was not proved or exhibited, the plaintiff filed the application for issuance of summons upon two witnesses to prove the deed of gift. Therefore, according to Mr. Banerjee, the learned Court below was absolutely correct to reject the prayer of the plaintiff for issuance of summons upon two witnesses holding that the petitioner filed the said application aiming to cure the lacunae in not proving the said deed of gift. He submitted though the decision of the Supreme Court in the case of K.K. Velusamy (supra) is an authority for the proposition that in an appropriate case the Court can exercise inherent power under Section 151 of the Code and allow a party to the suit to adduce fresh evidence even after commencement of oral argument, but the facts involved in the said case are totally different from that of this case. It was urged that the said decision of the Supreme Court is of no assistance to the petitioner. It was contended that the learned Court below was correct to reject the plaintiff's application for issuance of summons on two witnesses, at a very belated stage of the suit to cure the lacunae in not proving the alleged deed of gift. In this regard, the contesting opposite parties also relied upon the decisions of the Supreme Court in the cases of Gayathri - vs.- M. Girish reported in (2016) 14 SCC 142. Mr. Banerjee submitted that in the present case the view expressed by the learned Court below in the impugned order is a possible view and, as such, this Court in exercise of power under Article 227 of the Constitution of India would not interfere with the impugned order.