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NARAYANA, ADVOCATE, VISAKHAPATNAM

2010 1 CLJ 828; 2009 0 Supreme(Cal) 575;

CALCUTTA HIGH COURT

Prasenjit Mandal, J.
Kartick Chandra Sera & Anr. - Petitioners
Versus
Smt. Sulata Sera & Ors. - Opposite Parties
C.O. No. 3608 of 2008
Decided on : August 3, 2009
Cases referred :

Bipin Shantilal Panchal v. State of Gujarat & Anr., 2001 (3) SCC 1 (Para 7)
Vidhyadhar v. Manikrao & Anr., 1999 (3) SCC 573 (Para 8)

CIVIL PROCEDURE CODE : O.16 R.1(a), O.16 R.2, O.16 R.3, O.8 R.1(a)
.

Judgment :
This application is directed against the order dated 04.11.2008 passed by the learned Civil
Judge (Junior Division), Fifth Court, Howrah in Title Suit No.27 of 2001 whereby the learned Civil
Judge rejected an application praying for admitting the two documents to evidence.
2. The short fact leading to the filing of the application is that the plaintiffs/opposite party
Nos.1 and 2 instituted the Title Suit No.27 of 2001 against the defendants/petitioners and the
opposite party Nos.3 to 5 stating, inter alia, that the plaintiffs are the absolute owners of a certain
immovable property by way of purchase by a registered deed of sale of 1983 and thereafter they
got an eviction decree against defendants/tenants in respect of one room of the holding No. 9/2,
Stal Kart Lane, Salkia. They got delivery of possession by executing the decree through Court on
27.11.2000 with the help of police. But, the petitioners and the opposite party Nos.3 to 5 took
forcible possession of another room of the property in suit by breaking open the lock when the
police personnel, bailiff and others left the place. So the plaintiffs/opposite parties have filed the
suit for recovery of possession against the defendants as trespassers. The defendants are
contesting the suit by filing a written statement denying the material allegations stating, inter alia,
that the plaintiffs are not the owners of the suit property and that Binoy Kumar Ghosh and another,
owners of the property in suit, allowed the petitioner No.1 to look after the property and to occupy
one room as caretaker. The deed produced by the plaintiffs/opposite parties is not genuine and
question of surrender of tenancy or taking the forcible possession did not take place at all.
3. During trial of the suit, evidence of the plaintiffs was closed. Even the defendants adduced
evidence by examining the defendant No.2 on behalf of the defendant Nos.1 and 2. Thereafter,
mother independent witness was examined. At that time, the defendants wanted to examine one
Kabindranath Chowdhury who was not a party to the suit and to mark two documents of the year
of 1967 and 1975 as exhibits on the plea that those were 30 years of old and the custody of the
document had been proved. So those two documents must have been marked as exhibits by the
learned trial Judge. Being aggrieved by the order of rejection of their prayer of marking the two
documents as exhibits, the defendants/ petitioners have preferred this application.
4. Mr. Ram Mohan Pal, learned Advocate for the petitioners, submitted that evidence of the
plaintiffs had been closed and the defendants were to adduce to evidence and in fact after close of
evidence of the D.Ws.1 and 2 when the defendants wanted to examine another witness namely,
Kabindranath Chowdhury as D.W.3, dispute arose and Court did not mark two documents as
exhibits which were 30 years of old, though the defendants proved the custody of the document. In
support of his contention, he referred to the decision in the case of Bipin Shantilal Panchal v. State
of Gujarat & Anr., reported in 2001 (3) SCC 1 and thus he submitted that unless any objection
relating to deficiency of stamp duty of a document came into picture Court might mark the
document exhibit in accordance with law and if the question of deficiency of stamp duty was raised
that objection must be decided first. All other objections might be decided at the time of disposal of
the suit.
5. Mr. Ram Chandra Guchhait, learned Advocate for the opposite parties, submitted before
me that the fact is otherwise. The fact is that the plaintiffs/opposite parties filed the suit being
numbered as Eviction Suit No.272 of 1989 for eviction against the defendants/petitioners as
tenant. That suit was decreed and the decree was affirmed in the appeal. The plaintiffs got
possession of the suit property by executing the decree with the help of police on 27.11.2000. On
that very day when the police and the bailiff left the place, the petitioners took forcible possession
of another room of the premises and claimed as caretaker of the same. But their status with
respect to the suit property had been finally decided as tenants and they suffered a decree for
recovery of possession in the earlier suit. So the application should be dismissed.
6. Having considered the submission of the learned Advocates of both the sides and on
perusal of the materials-on-record, I find that admittedly the plaintiffs brought a suit for recovery of
possession against the defendants in respect of one room of the suit property and that they got
recovery of possession of the same by executing the decree through police help on 27.11.2000.
Now in the present suit it is the case of the plaintiffs that on the selfsame day the
defendants/petitioners took forcible possession of another room of the suit property in the absence
of police and the bailiff and that was why the plaintiffs were compelled to file a suit for eviction of
the defendants/petitioners as trespassers in respect of that room. Evidence on behalf of the
plaintiffs had been closed. Even the defendant No.2 deposed on behalf of the defendant Nos.1
and 2 as D.W.1. Another corroborating witness (not a party to the suit) was also examined on
behalf of the defendants/petitioners. During cross-examination, certain question were put to the
D.W.2 with reference to the statement made by him in his examination in chief. On the basis of
such statement, the defendants/petitioners wanted to examine the D.W.3 and also to prove certain
documents in support of his contention that he is a caretaker in respect of the suit property. It is
the specific case of the plaintiffs that such documents were not referred to in the written statement.
Nowhere it was disclosed whether those documents were either in the possession of the
defendants themselves or any other person. But, I find that the defendants/ petitioners wanted to
mark certain documents which were not disclosed earlier as per provisions of Order 8 Rule 1A of
the C.P.C. and those were not coming in pursuance of summons issued upon the witness to
produce documents. It may be recorded here that this suit had been filed in 2001 and the written
statement was filed by the petitioners in 2003 that is after the amendment of the C.P.C. with effect
from 01.07.2002. So, Order 8 Rule 1A has come into force from that day and the defendants were
to comply with the provisions of that order in order to avoid any kind of surprise to the plaintiffs.
7. So far as the decision in the case of Bipin Santilal Panchal v. State of Gujarat & Anr.,
reported in 2001 (3) SCC 1 is concerned, I find that this decision is not applicable in the instant
case at all because this decision relates to a criminal case for accelerating the trial and the
accused persons were languishing in prisons for long years while the present situation is
altogether different from the criminal case. So, this decision is not applicable in the instant case.
8. On the other hand, the decision in the case of Vidhyadhar v. Manikrao & Anr., reported in
1999 (3) SCC 573 clearly lays down for compliance of provision of Order 16 Rule 1A of the C.P.C.
which may be summarised to the effect that a party may bring witnesses even without applying for
Court summons but leave of the Court has to be obtained before proceeding to examine such
witnesses by showing sufficient cause for the omission to mention the name of the witness. But
the relevant application appearing at page No.14 as Annexure-P2 does not disclose sufficient
cause for the omission. Such provision has not been followed also in the instant case by the
defendants/petitioners. Thus, I find that the defendants/petitioners did not comply with the
provisions of Order 8 Rules 1A, 2 and 3 of the Civil Procedure Code. Nor did they follow the
provisions of Order 16 Rule1 and 1A of the C.P.C. However, the learned Civil Judge allowed the
defendants/petitioners to adduce oral evidence through the D.W.3.
9. This being the position, I hold that the learned Civil Judge has rightly rejected the petition
filed by the defendants/petitioners and that there is nothing to interfere with the impugned order.
Accordingly, the revisional application is meritless and it is, thus, dismissed.
10. 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.