Bhaskar Mondal vs Biswajit Chakraborty

Sabyasachi Bhattacharyya, J

The plaintiff in a suit for recovery of possession has taken out the instant application under Article 227 of the Constitution of India against an order dated September 15, 2015 whereby the trial court rejected an application filed by the plaintiff/petitioner, thereby praying for permission to re‐examine the plaintiff's witness (P.W.1) on recall on the questions set forth in the said application itself.

In the impugned order, the trial court recorded that on the previous date of evidence, the P.W.1 Bhaskar Mondal had submitted a photocopy of a tenancy agreement dated July 15, 1987 which was marked 'X' for identification. The photocopy of a rent bill was also submitted by P.W.1.

On August 10, 2015, the P.W.1 was cross‐examined and evidence was closed. The trial court further recorded that, in his cross‐examination, the P.W.1 admitted that he had not received any counterfoil of the rent bill and also did not have the original certified copy of the said agreement dated July 15, 1987.

As such, accepting the submission of the defendant/opposite party that the present petition was barred by the principle of res judicata, the trial court rejected the current application.

Learned senior counsel appearing for the petitioner argues that the previous application differed in many respects from the present application. In the first application, filed under Sections 61, 62 and 63 of the Evidence Act, the petitioner had prayed for marking the documents, which were marked as 'X' for identification, as exhibits. The basis of the application was that the P.W.1 had been recalled in connection with the agreement of tenancy as well as the photocopy of rent receipts as per order of the court below and accordingly the affidavit‐in‐chief had been filed to explain wherefrom the photocopy of the said documents had been received by the plaintiff/petitioner. It was further stated in the application that the P.W.1, after recall, had been duly cross‐examined on behalf of the defendant but no denial was put to him with regard to the existence and/or possession of the photocopy of the said agreement as also the rent receipts issued by the defendant in favour of Amalesh Chakraborty. It was further stated that in such examination‐in‐chief on recall, the P.W.1 identified the signature of the defendant, namely Biswajit Chakraborty, on the photocopy and no denial was made from the defendant's side with regard to the signature of the defendant on the said tenancy agreement. In such circumstances, the prayer for marking of the said two documents as exhibits was made.

Vide Order No. 126 dated December 4, 2014, the trial court rejected the said application under Sections 61, 62 and 63 of the Evidence Act. It was held by the trial court in the said order that the defendant had never admitted the existence of such documents and the plaintiff had not brought the attesting witness of the documents. As such, it was held, only the photocopies of the documents were available to the court, whose original and attesting witnesses were not available. It was held by the court below that the said document was not a public document and as such, the photocopy could not be proved in the absence of a certified copy. It was also held that it was not possible for the court below to determine whether the said document was a false document or not.

Thereafter, the second application was filed, which was the subject‐matter of the impugned order, whereby the P.W.1 was sought to be examined on recall on the following questions:

(a) You have deposed that the copy of document to show defendant accept and induct tenant. Now what kind of documents you have submitted before the court?

(b) How could you get those documents, kindly explain to the Learned Court?

(c) You have deposed in question No. 12 in examination in chief that defendant parted with possession of the suit property by transfer his tenancy right, can you depose what do you mean by parted with possession and to whom.

(d) Do you know monetary transaction in between tenant and sub‐lessee according to you, if you know kindly tell the court about details thereof.

The basis of such application was an attempt by the plaintiff to explain the plaint case of subletting more elaborately and removal of ambiguity in the evidence. It was also averred in the second application that the ambiguity was not resolved even after the cross‐examination of P.W.1 by the defendant.

In this context, the application in question quoted the point no. 23 of the examination‐in‐chief of P.W.1, which said that:

"That these are copy of documents to show that the defendant accepted rent and induct tenant at his tenancy premises and the original of the same are in the custody of the defendant."

Question no. 12 of the said affidavit of P.W.1 was answered as follows:

"That the defendant being the sole Tenant sub let and/or parting with possession of the suit property by transfer his tenancy right without the written permission of the erstwhile owner Kanai Ch. Pal."

It was also quoted from the examination‐in‐chief of the P.W.1 on dock as follows:

"This is the xerox copies of the agreement and rent receipts (marked as 'X' series for identification). The originals are lying with Biswajit Babu."

In order to remove the ambiguity of the said answers and to provide a basis for production of the photocopies as secondary evidence, as contemplated in Section 65(a) of the Indian Evidence Act, the said prayer was made by the petitioner.

Learned senior counsel for the petitioner argues that the recall was sought to introduce the ingredients of Section 63(3) and Section 65(a) of the Evidence Act, since there is no bar to prove the documents which are still on record, marked 'X' for identification.

Despite the previous application having been refused in the circumstances prevailing at that juncture, the prayer made in the present application is different, intended to provide the basis to prove the said documents and have them marked as exhibits under changed circumstances.

It is further submitted that the D.W. 1 did not deny the existence of the documents, which is a further reason for taking out the present application.

Learned senior counsel relies on a judgment reported at (2010) 3 WBLR (Cal) 527 [Ratan Das vs. Goutam Das], wherein a co‐ordinate bench, following the judgment of Nawab Singh vs. Inderjit Kaur reported at AIR 1999 SC 1668, held that when it was stated that the agreement is in custody of the landlord and the foundation of the secondary evidence had been clearly set out in the examination‐in‐chief on affidavit, since the document is out of reach, it is a case covered under Section 65(a) of the Evidence Act.

Nawab Singh (supra), referred to by the co‐ordinate bench, also relied on Section 65(a) of the Evidence Act to hold that where leave sought by a tenant for production of a copy of a rent note was rejected on the ground that the said note sought to be produced was of doubtful veracity, and the tenant alleged that the original rent note was in possession of the landlord, the rejection of the application, without affording the tenant an opportunity of adducing secondary evidence, was unjustified.

Under the said circumstances, learned senior counsel submits that the trial court acted without jurisdiction in passing the impugned order.

Since, despite several opportunities, the opposite party chose to remain unrepresented, the arguments were closed upon hearing learned senior counsel for the petitioner only.

Upon considering the impugned order, the primary ground for refusal of the application filed by the petitioner appears to be that a similar application was denied by the trial court by its order dated December 4, 2014 and the principle of res judicata operated.

It is seen from the earlier application under Sections 61 to 63 of the Evidence Act, which was rejected vide Order No.126 dated December 4, 2014, that the said application was preferred on grounds somewhat different from the present application, and for a different relief. In the previous application, it was stated that the P.W.1 had been examined and even after recall was cross‐examined, but no suggestion was put to the P.W.1 as regards the existence and/or possession and/or obtaining the photocopy of the purported tenancy agreement and rent receipts issued by the defendant in favour of Amalesh Chakraborty. On such grounds, it was prayed that the documents which were marked as 'X' for identification, be marked as exhibits. However, the trial court rejected such prayer for marking the documents‐in‐question as exhibits on the ground of res judicata as well as that the documents were photocopies and the attesting witness was also not available and since the document was not a public document, the photocopy would be proved only by a certified copy and as such the prayer for marking the said documents as exhibits was refused.

It was further held in the order dated December 4, 2014 that the said document had not satisfied the parameters set out in Section 65 of the Indian Evidence Act, 1872 and it was not possible for the court to determine whether the said document was a false document or not.

However, the documents remained on record, being marked 'X' for identification and were not in any manner expunged, but merely denied being marked as exhibits.

In the second application, which was dismissed by the impugned order dated September 15, 2015, the grounds were somewhat different, as well as the prayer. The premise of the second application was that the P.W.1 was sought to be recalled for re‐examination on the specific questions set forth in the said application.

It was explained in the application that the same was necessary not only for providing further basis for marking the documents as exhibits by way of secondary evidence by proving the ingredients of Section 65(a) and Section 63(3) of the Evidence Act, but it was further averred that the plaint case of subletting, which was already existent in the pleadings, was to be elaborated and explained further.

In this context, answers of the P.W.1 to question nos. 12 and 23 in his affidavit of examination‐in‐chief as well as his answers to the questions put on the dock were quoted in the application.

It was further stated in the application that the same was necessitated since nothing was elicited in cross‐examination of the P.W.1 for removal of ambiguity in the answers of P.W.1 to the said question, for which, the present application for recall of P.W.1 had to be filed.

Section 138 of the Evidence Act provides for re‐examination of a witness for the explanation of matters referred to in cross‐examination as well as new matters, the latter being with the permission of the court. In the event of new matter, the adverse party has been given liberty under the said section to further cross‐ examine the witness upon that matter.

In the present case, the elaboration of the point of subletting could be treated to be new matter, conferring entitlement upon the opposite party to further cross‐ examine the P.W.1 on the said question. However, the other aspect of the matter, being that the petitioner sought to produce evidence to create a plinth, by leading relevant evidence, for proving the ingredients of Section 65(a) as well as Section 63(3) of the Evidence Act, to entitle the petitioner to have the documents, marked 'X' for identification, marked as exhibits.

Since the previous order dated December 4, 2014 had refused to mark the documents as exhibits inter alia on the ground that the parameters of Section 65 of the Evidence Act were not satisfied, the petitioner ought to be given an opportunity, for the ends of justice, to lead evidence to satisfy such parameters for a proper and complete adjudication of the suit. This being a subsequent circumstance, arising from the observations made in the order dated December 4, 2014, which observations partially furnished the cause of action for the current application, could be taken to be further developments, negating the operation of the principle of res judicata, since the cause of action of the second application was subsequent to that of the first application.

Moreover, since the documents are still on record, being marked for identification, there is no bar till the final hearing of the suit for the petitioner to make an attempt to lead further evidence for the purpose of qualifying the said documents as secondary evidence and to have those marked as exhibits, more so in view of the cardinal importance of those documents, being a purported tenancy agreement and rent receipts. It may be further considered that, as also recorded in the previous order dated December 4, 2014, although the defendant had not admitted the documents‐in‐question, nor were those denied by the defendants.

As regards the further elaboration of the point of subletting by leading evidence for further explanation of the same, it is well‐settled that the court ought to consider the existence of the grounds for eviction, in a suit for recovery of possession, till the date of passing of the decree. As such, the elaboration sought on the question of subletting ought also to have been permitted by the trial court.

Keeping in view the proposition laid down in the judgment cited by the petitioner, a leave under Section 65(a) of the Evidence Act ought to be afforded to adduce secondary evidence before refusing documents to be marked as exhibits.

In such view of the matter, the trial court acted without jurisdiction in rejecting the application for recall of the P.W.1 by the impugned order, more so since specific questions to be put to such witness on recall were enumerated in the application itself.

That apart, any prejudice which may be suffered by the opposite party by such permission, shall be taken care of by permitting the opposite party to further cross‐examine the P.W.1 on such additional evidence.

Accordingly, C.O. No. 4396 of 2015 is allowed, thereby setting aside the impugned order and allowing the application filed by the plaintiff/petitioner for recall of the P.W.1. It is made clear that the opposite party will be at liberty to cross‐examine the P.W.1 on such additional evidence adduced by the P.W.1 on recall.

There will be no order as to costs.

Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.