Debashis Basu vs S.R.P. Construction Pvt. Ltd. and Another

Prasenjit Mandal, J.—This application is at the instance of the Defendant and is directed against the Order No. 64 dated June 13, 2011 passed by the learned Civil Judge (Senior Division), 2nd Court, Barasat in Title Suit No. 146 of 2007 thereby disposing of two applications filed by the Defendant.

The short fact is that the Plaintiff / opposite party No. 1 herein instituted a suit for declaration of his tenancy right, permanent injunction and other reliefs against the Defendant. The said suit has been registered as Title Suit No. 146 of 2007.

The opposite party No. 2 herein instituted a suit being Title Suit No. 145 of 2007 against the Petitioner before the learned Civil Judge (Senior Division), 2nd Court, Barasat for specific performance of contract and the Petitioner is contesting the said suit by filing a written statement along with a counter-claim denying the material allegations contained in the plaint in the said suit. The Petitioner filed an application for analogous hearing of two suits. But that prayer was rejected by the learned Trial Judge.

While the evidence in Title Suit No. 146 of 2007 was being recorded on behalf of the Defendant No. 1, during his cross-examination, several questions were put to him which touched the merit of the Title Suit No. 145 of 2007 and as such, an application had been preferred for expunction of the evidence of the D.W.1 to that effect. That application was rejected by the impugned order.

The Petitioner filed another application for rectification of a date contending, inter alia, that in the deposition it was recorded that the D.W.1 went to Singapore on May 26, 1996 but he actually went to Singapore on June 6, 1996 but the date was wrongly written as on May 26, 1996, that mistake was to be corrected. That application was also rejected. Being aggrieved by such orders, this revisional application has been preferred.

Now, the question is whether the impugned order should be sustained.

Upon hearing the learned Counsel for the parties and on going through the materials on record, I am of the view that there is nothing to interfere with the impugned orders. As regards expunge of the cross-examination of the D.W.1 touching the merit of the other Title Suit No. 145 of 2007, I am of the view that the learned Trial Judge has rightly observed that the cross-examination of a witness need not be confined to the fact in issue or relevant fact. It may go beyond that in order to test veracity of the witness. But at the time of writing judgment only evidence on the fact in issue and relevant fact is to be considered. Above all, there is no provision for expunction of the evidence.

If any evidence is recorded beyond the pleading at the time of cross-examination, proper course is to raise objection at the time of recording evidence. It is recorded that no objection was raised to maintain peace. Be that as it may, the evidence is to be recorded following the provisions of the Indian Evidence Act. Since, there is no provision for expunction of the evidence, the prayer for expunction cannot be accepted. However, at the time of argument, if it is found that the evidence is beyond pleadings, the learned Trial Judge may not act upon the said evidence at all. Therefore, so far as the prayer of the Petitioner for expunction of the evidence of the D.W.1 in his cross-examination is concerned, the prayer cannot be allowed. The impugned order in this regard is supported.

As regards, the other application, that is, the change of the date in the deposition, the evidence cannot also be corrected in the manner as stated. If necessary, the witness may be recalled for giving an explanation or the conclusion may be arrived at in the manner as stated by the learned Trial Judge in the impugned judgment. So, the prayer for rectification as sought for cannot also be granted.

10.The revisional application is, therefore, disposed of with the observations indicated above.

Considering the circumstances, there will be no order as to costs.

Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.