Sanat Kumar Ganguly vs Sandhya Dutta Chowdhury and Others

Biswanath Somadder, J.—Affidavit-of-Service filed on behalf of the petitioner be kept on record.

None appears on behalf of the plaintiffs/opposite parties when the matter is called.

This is an application under Article 227 of the Constitution of India directed against an order dated 5th October, 2007 passed by the learned Civil Judge (Junior Division), 5th Court, in the district of Howrah in Title Suit No. 184 of 2003 (Sandhya Dutta Chowdhury and Ors. v. Sanat Kumar Ganguly). By the order impugned, the learned Court below allowed the plaintiffs'' application and permitted production of evidence of the Settlement Office, Sankrail, Howrah, regarding L.R. records-of-rights in respect of L.R. Khatian No. 1093, J.L. No. 29, Dag No. 216 under Mouza- Andul.

Before the Court below it was submitted on behalf of the defendant that the application was misconceived, having no legs to stand on and it was prayed that the same be rejected.

Learned Advocate appearing on behalf of the defendant/petitioner before this Court, submits that in view of the omission of Order 18 Rule 17A of the CPC from the statute book, the learned Court below ought to have taken into consideration that only if a party satisfies the Court that after exercise of due diligence, evidence was not within his knowledge or could not be produced at the time the party was leading evidence, the Court could permit leading of such evidence at a later stage, on such terms as would appear to be just. Learned Advocate submits that in the facts of the instant case, from the application filed by the plaintiffs before the learned Court below, it would be evident that the learned Court could not have reached such satisfaction on the basis of the pleadings made by the plaintiffs in the said application and consequentially the impugned order dated 5th October, 2007 could not have been passed by the learned Court below.

After considering the submissions made by the learned Advocate appearing on behalf of the defendant-petitioner, am of the view that the learned Court below was not unmindful of the fact that the provision of Order 18 Rule 17A of the CPC had been omitted from the statute book. In this regard, some observations have been made by the learned Court below in the impugned order itself, to which, I shall advert to, presently.

The plaintiffs'' application, based on which the impugned order has been passed, contains inter alia the following paragraphs:

That the plaintiff No. 2 has adduced her evidence as PW-1 and filed certain documents to substantiate the case of ownership and possession of the plaintiffs in the suit property.

That the plaintiffs amongst the documents filed by them also filed the L.R. records-of-rights in respect of the suit property wherein the L.R. records-of-rights denotes that the status of the father of the defendant has been recorded as ''Anumoti Dang'' and the defendant also filed the L.R. records-of-rights in respect of the suit property which donots ''Jor Dang''. The plaintiff there after obtain another certified copy of L.R. records-of-rights of the suit property from the Office of the B.L. & L.R.O, Sankrail, Howrah which L.R. record-of-rights denotes the same recording as ''Anumoti Dang''.

4) That in order to dispel the discrepancy in the three sets of L.R. record-of -rights of the suit property it shall be just and proper to call for the evidence of Settlement Office as to prove the authenticity of those three L.R. record-of-rights which has been marked on the side of the defendant as well as from the side of the plaintiffs as such evidence is essentially required for proper adjudication of the dispute in controversy by the learned Court.

Based on the aforementioned statements the learned Court below in the impugned order observed as follows:

On meticulous scrutiny of the case record it is found that the defendant did not use a single word regarding the L.R. record-of-rights, which was filed by him on 10.03.2005 i.e. after the evidence of plaintiffs is closed, in his written statement. Therefore, obviously, the plaintiffs could not adduce evidence regarding the said document as the defendant preferred to keep his mouth shut regarding that document till 10.03.2005.

Upon taking into consideration the above observation of the learned Court below and after going through the impugned order dated 5th October, 2007 in its entirety, I am of the view that the principles of law laid down by the Hon''ble Supreme Court in the case of Salem Advocate Bar Association Vs. Union of India (UOI), , had been meticulously taken into consideration by the learned Judge and as such I find no infirmity in the reasoning given by the learned Judge in the impugned order.

The subsequent judgment of the Hon''ble Supreme Court rendered in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), , to which the learned Advocate appearing on behalf of the defendant-petitioner relies on, in my view, is a reiteration of the principles of law laid down by the Hon''ble Supreme Court in its earlier SALEM ADVOCATE BAR ASSOCIATION judgment referred supra, with regard to the effect of deletion of Order 18 Rule 17A of the Code of Civil Procedure. This is clearly evident from the observation of the Hon''ble Supreme Court in the said judgment at ''Paragraph-13 which is reproduced below:

In Salem Advocate Bar Assn. case it has been clarified that on deletion of Order 18 Rule 17A which provided for leading of additional evidence, the law existing before the introduction of the amendment i.e. 1.7.2002, would stand restored, The Rule was deleted by Amendment Act of 2002. Even before insertion of Order 18 Rule 17A, the Court had inbuilt power to permit parties to produce evidence not known to them earlier or which could not be produced in spite of due diligence. Order 18 Rule 17A did not create any new right but only clarified the position. Therefore, deletion of Order 18 Rule 17A does not disentitle production of evidence at a later stage. On a party satisfying the Court that after exercise of due diligence that evidence was not within his knowledge or could not be produced at the time the party was leading evidence, the Court may permit leading of such evidence at a later stage on such terms as may appear to be just.

This being the position in law and as observed by me earlier, with regard to the fact that there is no infirmity in the impugned order dated 5th October, 2007, I have no hesitation in dismissing the instant application filed by the defendant/petitioner.

The application accordingly thus stands dismissed.

There shall, however, be no order as to costs.

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