Mohanlal Agarwala v Beharilal Agarwala

Mohanlal Agarwala v Beharilal Agarwala

Calcutta High Court

20 November 2013

C.O. No. 2394 of 2012

The Judgment was delivered by : Asim Kumar Mondal, J.

1. This is an application u/art. 227 of the Constituion of India challenging the order being No. 98 dated April 17th, 2012 passed by learned Civil judge (Junior Division), Siliguri in Title Suit No. 172 of 2012.

2. The petitioner as plaintiff filed the suit against the defendant opposite party praying for declaration of title and permanent injunction. The petitioner and opposite party are brothers. Petitioner, at all material times, was carrying out the family business established by his father in the name and style of M/s. Jodhraj Beharilal at Siliguri. The family business of the parties was carried on as a HUF of which the father of the petitioner and the opposite party herein was the karta. The father of the parties died in 1976. The opposite party as an elder brother in the family became karta of the HUF.

The dispute and grievances cropped up between the parties in relation to the liabilities of the Hindu Undivided Family business. A family settlement was agreed upon and reduced to writing and in terms of the said settlement the opposite party agreed to execute all documents for confirming the exclusive right, title and interest of the petitioner over the disputed properties.

3. In the suit the defendant/opposite party field the written statement. The petitioner as plaintiff has already given evidence in the suit by filing an affidavit of evidence in chief. The petitioner has also cross-examined.

4. On or about December 8th, 2009 the defendant purported to file an examination in chief with some documents through his advocates. On February 24, 2010 the defendant was put to the witness box for examination. On being questioned on the purported affidavit of evidence claimed to have been filed on his behalf the defendant deposed before the learned Court to the effect that ” I have no knowledge about the contents of my said affidavit in chief.” On February 24th, 2010 the learned Court below passed an order to the effect that the affidavit in chief of the defendant’s first witness was not accepted considering his deposition on dock recorded on that day.

The document sought to be filed in support of the purported evidence were directed to be returned to the sherastadar for keeping the same in safe custody of the Court. On June 3rd, 2010 the defendant’s first witness filed the same and identical examination in chief by way of an affidavit on the earlier occasion. The learned Court did not consider the previous order and the fact that the said purported affidavit of evidence had been once rejected on the admission of the witness on the part of the defendant that he had no knowledge of the contents thereof. The examination of defendant’s first witness was accepted by the learned Court. The plaintiff vehemently objected to the filing of the second affidavit-in-chief as the defendants had already filed affidavit-in-chief earlier.

On December 8th, 2009 which was already taken on record and the defendants had even deposed before the learned court on the basis of said affidavit filed on December 8th, 2009. The said objections of the plaintiff were filed before learned Court below by way of formal applications u/s. 151 of the Code of Civil Procedure. The learned Trial court by order No. 98 dated April 17th, 2010 was pleased to take up the petition and after hearing both sides was pleased to dismiss the said application.

5. Being aggrieved by and dissatisfied with the said order impugned the present revisional application has been field on the ground that the learned Court below erred in dismissing the said application u/s. 151 of the Code of Civil Procedure only on the principle of approbate or reprobate which was clearly not attracted and/or applicable to the facts and circumstances of the present case.

Further that learned Court below erred in appreciating the well settled principle with regard to adducing of evidence that the affidavit of evidence already filed and taken on record cannot be substituted by fresh affidavit of evidence as have been sought to be done in the instant case.

6. Cases referred to

1. 2011 (3) CHN (Cal) 369

2. 2011 (11) Supreme Court Cases 275 2011 Indlaw SC 200

3. 2010 (1) CHN 316 2009 Indlaw CAL 580

7. Mr. Sakya Sen with Mr. Rahul Das and Ms. Nilanjana Adhya appeared on behalf of the petitioner. Mr. Sen submits and argued that defendants had already been examined on the basis of first affidavit of evidence and also cross-examined on the contents of the same. He is further submitted that learned Trial Court allowed the defendant to file second affidavit of evidence which was resulted in two different affidavits of evidence being on record of the suit on behalf of the defendant which is wholly impermissible in law. The prayer of the defendant to file second affidavit is wholly without jurisdiction in law, merely the fact that the said defendant’s witness was examined on the basis of the said affidavit would not cure such defect and same would not be a bar to challenge the said order by the plaintiff. The question of prejudice is irrelevant in the context that the order in question is contrary to law and without jurisdiction.

The affidavit of evidence already filed and taken on record cannot be substituted by fresh affidavit. The second affidavit filed earlier as neither expunged nor recalled by the Court. No steps were taken by the defendant in the instant case for expunging initial evidence by way of affidavit filed on 8th December, 2009. The result of allowing the defendant to file second affidavit of evidence would result in two different affidavits of evidence being on record of the suit on behalf of the defendants which is wholly impermissible in law. The defect will not be cured merely on the fact that the defendant’s witness was examined on the basis of second affidavit.

8. In reply learned Advocate Mrs. Sampa Sarkar appears on behalf of the opposite party submits that the learned Trial Judge has passed the order impugned based on reasons and there is nothing to interfere in the said order as none of the parties will be prejudiced. The learned counsel for the opposite party also draws my attention at the paragraph 3 of objection on behalf of the defendant against the application filed by the petitioner / plaintiff u/s. 151 of the Civil Procedure Codewhich has been annexed in the present revisional application and submits that D.W. 1 filed his examination-in-chief on December 8th, 2009 but on the said date he was not examined. D.W. 1 was examined on February 24th, 2010 but due to his serious illness and old age he through mistake made some statements which were not correct and contrary to his statements made in the affidavit-in-chief. In that circumstances he was not further examined and an application was filed on his behalf to file a fresh affidavit in chief explaining the reasonable grounds and reasons.

The learned Counsel also draws my attention to the paragraph 5 and 7 of the said application and submits that the defendant filed affidavit in chief on June 3rd, 2010 after serving a copy of the same upon the Advocate of the plaintiff / petitioner an objection was raised as usual from the side of the plaintiff, but the same was overruled by the learned Court below and the affidavit-in-chief was accepted by the learned Court and the case was called for taking evidence of the defendant. The defendant was examined on dock and several documents were also marked exhibit. Cross examination of the defendant was deferred on the prayer of the learned lawyer for the plaintiff.

That after June 3rd, 2012 the said suit was adjourned on several dates i.e. on September 2nd, 2010, December 1st, 2010, February 16th, 2011, May 4th, 2011, July 8th, 2011, October 31st, 2011 and January 31st, 2012 for cross-examination of the defendant on the prayer of the plaintiff and suddenly the application u/s. 151 of the Civil Procedure Code was filed on January 31st, 2012 it is clear that the application u/s. 151 of the Civil Procedure Code was filed earlier to harass the defendant who is an old and aged person of eighty years and cannot even move for the reasons already stated in his evidence.

9. On careful perusal of the order impugned it appears that the D.W. 1 was examined in chief in full, the cross-examination was deferred on the prayer of t he plaintiff. It further appears from the order impugned that there is observation of the learned Trial Court that the cross- examination was deferred on the prayer of the plaintiff / petitioner on several dates from September 2nd, 2010 to January 31st, 2012. The petitioner / plaintiff during the entire period of 16 / 17 months neither file any petition praying for rejection of the affidavit-in-chief in question nor moved before any appropriate higher forum challenging the said order. There is nothing in the petition u/s. 151 of the Civil Procedure Code assigning any reason or explaining any circumstances justifying such inordinate delay of filing petition u/s. 151 of Civil Procedure Code before the learned Court below.

10. Learned Court below has correctly observed that the plaintiff / petitioner had no grievances against the said order dated June 3rd, 2010.

11. The learned Trial Court has correctly observed that there is nothing to prejudice the plaintiff as the plaintiff shall have enough opportunity to cross-examine the said witnesses to testify his veracity or to sake his credit.

12. The petitioner / plaintiff shall have the liberty to argue before the learned Trial Court at the relevant and proper stage challenging the legality and permissibility of the evidences adduced by the D.W. 1 by filing two affidavit in chief.

13. Considering all aspects and proposition of law relating to the provisions u/s. 151 of the Civil Procedure Code invoking to supplement the applicable provisions ofCivil Procedure Code I do not find any reason to interfere into the order impugned as the same is based on reason, argument and law. In the result the revisional application is liable to be dismissed.

14. Thus the revisional application is dismissed without costs.

15. Urgent Photostat Certified Copy of this order if applied for be given to the parties on priority basis.

Application dismissed

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