Malay Acharya vs Smt. Sampa Acharyya

Ishan Chandra Das, J. - The instant revisional application under Article 227 of the Constitution of India has been filed questioning the propriety of the Order No. 63 dated 12.05.15 passed by the learned Civil Judge (Senior Division), 2nd Court, Barasat in T.S. No. 69 of 2007.

The background of the instant revisional application is that the plaintiff/opposite party filed a suit for eviction against the petitioner herein along with other consequential reliefs where the defendant/petitioner by filing written statement contested the suit with a counterclaim. The Trial Court decreed the suit, but dismissed the counterclaim of the defendant. Against the said judgement and decree, an appeal was preferred and the learned Appellate Court while disposing of the appeal by order dated 17th February, 2012 set aside the same and the case was sent back on remand to the Trial Court with a direction to rehear the matter afresh. The direction of the learned Appellate Court is quoted below :-

"that the instant appeal be and the same is hereby allowed on contest but without any order as to costs. The judgment and decree dated 28.05.2009 passed by the Learned Civil Judge, Senior Division, 2nd Court at Barasat, North 24 Parganas in Title Suit No.69 of 2007 is set aside. The matter is sent back on remand for adjudication afresh on both the plaint and the counter claim.

The Learned trial court shall assess the court fees on counter claim within 15 days of the first appearance of the parties and the defendant shall pay the court fees upon the same within 15 days thereafter. If the defendant brings any application for amendment of counterclaim, the same shall be filed at the earliest opportunity and would be disposed of by the learned trial court in accordance with law. Then Learned Court shall frame the issues afresh after giving opportunity to the plaintiff to file written statement to the counter claim and shall determine the suit and the counter claim on hearing the evidence afresh, as per law, and would endeavour to dispose of the same as expeditiously as possible, without granting unnecessary adjournments to any of the parties, preferable within six months from the date of communication."

Learned counsel appearing for the petitioner in course of hearing drew my attention to an application dated 18.12.12 filed on behalf of the plaintiff/opposite party and pointed out that in terms of the direction of the learned Appellate Court, the opposite party herein applied for tendering evidence in the form of examination-in-chief on affidavit and to produce documents for admitting the same in evidence.

Drawing my attention to Order No. 54 dated 18.09.13, he pointed out that the application was disposed of by learned Trial Court and by the said order, the court below held that, he was unable to consider the evidence led earlier particularly when the witnesses coming forward to give evidence afresh shall prove his case in the entirety and the burden of proof also extends to the proof of documents. Subsequently by the Order No. 63 dated 12.05.15, learned Trial Court recalled its earlier order (i.e. the Order No. 54 dated 18.09.13) with a finding that "the evidence tendered by the parties during trial of the suit as recorded by this Court would not evaporate after remanding back the case record to this Court by the ld. Appellate Court".

Questioning the legality of the said order, he submitted that once this issue was decided by the earlier order dated 18.09.13, there is no scope to recall such order since the principle of res judicata would operate the field. In this context, he relied on a decision of the Hon''ble Apex Court in Satyadhyan Ghosal & Ors. v. Smt. Deorajin Debi & Anr. reported in AIR 1960 SC 941 and pointed out that "when a matter - whether on a question of fact or a question of law - has been decided in between the parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again".

He also urged with reference to the decision of the Apex Court in Satyadhyan Ghosal (supra) that "the principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings".

He also submitted that the learned Appellate Court set aside the judgement and decree passed by the learned Civil Judge (Senior Division), 2nd Court at Barasat in T.S. No. 69 of 2007 and sent the matter back on remand not only on the point for consideration of counterclaim but also allowed the plaintiff/opposite party to amend her plaint if necessary with a view to avoiding future complication and for effective adjudication of the dispute between the parties. He accordingly pointed out that on the strength of such order of remand, the defendant/petitioner herein prayed for amendment of his prayer and by Order No. 38 dated 10.4.12, the prayer for amendment of the written statement for insertion of counterclaim was allowed and the plaintiff/opposite party was allowed to file written statement against such counterclaim.

Drawing my further attention to the Order No. 39 dated 3.5.12, he pointed out that the plaintiff/opposite party opted for filing written statement against the counterclaim as per the direction of the Appellate Court and the spirit of the order of the Appellate Court revealed that the learned Trial Court was directed to initiate the process for de novo trial from the stage of framing issues.

He also drew my attention to the application dated 18.12.12 filed on behalf of the plaintiff/opposite party where she applied for admission of the documents already on record as evidence afresh. Subsequently by the Order No. 54 dated 18.09.13 while disposing of the said application, learned Trial Court held that since he was asked to initiate the trial de novo, he intended to admit the documents as evidence afresh following the procedure established by law and he rejected the said prayer of the opposite party herein against which the opposite party filed a revisional application being C.O. 3855 of 2013.

Learned counsel for the petitioner also pointed that during pendency of the said revisional application, the plaintiff/opposite party filed another application under Section 151 of the Code of Civil Procedure and convinced the court to pass such an order which is not permitted under the law. Accordingly he submitted that in the order impugned, learned Trial Court while disposing of the application under Section 151 of the Code of Civil Procedure observed the following :-

"I respectfully disagree with the aforesaid view expressed by my ld. Predecessor in chair vide order dated 18.09.13. In this context I opine that the evidences tendered by the parties during trial of the suit as recorded by this Court would not evaporate after remanding back the case record to this Court by the ld. Appellate Court. The evidences already on record would have become part and parcel of the case record and the same cannot, under any circumstances, be expunged from the case record.

The order dated 18.09.13 passed by my ld. Predecessor in chair is hereby modified accordingly only up to this extent."

Pointing out the pros and cons of the order quoted above learned counsel for the petitioner opined that such an order of learned Trial Court is not tenable in law.

Learned counsel appearing on behalf of the plaintiff/opposite party expressed the contrary view over the issue. While supporting the views of the learned Trial Court in the order impugned, he submitted that the learned Trial Court while disposing of the application under Section 151 of the Code of Civil Procedure rightly held that the evidence, both oral and documentary on record, adduced during trial shall not evaporate after the judgement and decree is set aside particularly when the same was sent back on remand for fresh decision of the case. Clarifying the direction of the learned Appellate Court in this regard (at page 25 of the revisional application), he opined that the learned Appellate Court directed the parties to get their pleadings including the counterclaim amended if they feel it necessary to do so and thereafter the direction was given for assessment of the court fees on counterclaim within 15 days of the first appearance of the parties with a further direction to pay the requisite court fees within 15 days thereafter.

He urged that since the defendant/petitioner did not apply for amendment of his written statement by way of insertion of counterclaim after the order of remand, the question of de novo trial did not arise at all.

Relying on a decision of the Hon''ble Apex Court in Bipin Shantilal Panchal v. State of Gujarat & Anr. reported in (2001) 3 SCC 1, he pointed out that "whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence, the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case subject to such objections to be decided at the last stage in the final judgment".

Supporting the finding of the learned Trial Court in the order impugned, he further opined that the learned Trial Court passed the order impugned as a better substitute to cut short the process of taking evidence and the Trial Court who was directed to dispose of the suit expeditiously was permitted in a round about way to do so.

Further Relying on a decision of a Single Bench of this Hon''ble Court in Pratibha Sardar & Anr. v. Tarun Kumar Halder (C.O. 1459 of 1999) reported in 1999 WBLR (Cal) 448, he urged that once a document has been marked as an exhibit in the case and has been used by the parties in examination then the document has the effect of being admitted into evidence and it is not open to court to expunge the said document at a later stage.

From the materials on record, it reveals that the plaintiff/opposite party filed a suit for eviction of a licensee against her brother, the defendant who claimed that the plaintiff acquired title in respect of the disputed property on the strength of a fictitious deed obtained by exercising fraud upon their father. Learned Trial Court while dealing with the suit, decreed the same in favour of the plaintiff/opposite party ignoring the fact that the defendant/petitioner had pleaded by way of counterclaim and alleged certain facts. Learned Appellate Court while disposing of the appeal directed the Trial Court to have the suit disposed of after giving opportunity to the parties for amending their respective pleadings and the defendant/petitioner was again allowed to amend the counterclaim in his written statement, as pointed out earlier.

Learned Trial Court while disposing of the application, filed on behalf of the plaintiff/opposite party dated 18.12.12, held that the order of remand was for holding the trial of the suit de novo and directed the parties to adduce their evidence both oral and documentary afresh in terms of the direction given by the Appellate Court instead of allowing the parties to adopt a shortcut method.

The record reveals that against the Order No. 54 dated 18.09.13, a revisional application being C.O. 3855 of 2013 was filed and during pendency of the said revisional application, the plaintiff/opposite party filed another application under Section 151 of the Code of Civil Procedure on the strength of which the impugned order was passed and the earlier order being Order No. 54 dated 18.09.13 was modified by him upon observation that he respectfully disagreed with the view expressed by his learned Predecessor in chair. The fact remains the Order No. 54 dated 18.09.13 was operating the field since the revisional application (C.O. 3855 of 2013) against the said order was yet to be disposed of and during pendency of the said revisional application, the observation of the learned Trial Court in the order impugned cannot be said to be sustainable in law and accordingly taking into consideration the facts and circumstances of the case, I firmly conclude that learned Trial Court passed the Order No. 63 dated 12.05.15 under a misconception of fact and the same is not sustainable in law. The decision of the Hon''ble Apex Court in Bipin Shantilal Panchal (supra) as relied on by learned counsel for the opposite party has no manner of application in the present facts and circumstances of the case.

Accordingly, I find merit in the instant revisional application which stands allowed and the Order No. 63 dated 12.05.15 is hereby set aside.

The learned Trial Court is directed to dispose of the suit in terms of the direction given by the learned Appellate Court by its order dated 17th February, 2012.

With the above direction, the instant revisional application is allowed and disposed of.

There will be however no order as to costs.

Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.