Calcutta High Court (Appellete Side)
Sri Nemai Karmakar vs Smt. Dipali Basak Nee Karmakar on 1 November, 2017
Author: Mir Dara Sheko
Bench: Mir Dara Sheko
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IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Mir Dara Sheko
C.O. 1956 of 2016
Sri Nemai Karmakar
-Versus-
Smt. Dipali Basak nee Karmakar
Judgment on : November 01, 2017
1.Like earlier occasions, none appears on behalf of either of the parties when the matter is called on. However, considering the nature of the proceeding and materials on record being noticed as sufficient, the same is taken up for consideration and disposal on merit.
2. The revisional application under Article 227 of the Constitution of India has been directed assailing order No. 98 dated April 18, 2016 passed by the learned Civil Judge (Senior Division), at Durgapur, in Title Suit No. 17 of 2008 (Smt. Dipali Basak & Ors. Vs. Sri Nemai Karmakar) allowing the petitions dated February 11th and 22nd, 2016 on contest marking the xerox copy of the written statement of Title Suit No. 71 of 2004 and certified copy of examination-in-chief of the defendant in Title Suit No. 20 of 2010 as 'Ext. Nos. 3 and 4' respectively on the side of the plaintiffs/opposite parties.
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3. It reveals that at the stage of hearing the opposite parties/plaintiffs who will be called on as the opposite parties, had filed "xerox copy of the written statement filed by the petitioner in Title Suit No. 71 of 2004. The said suit, however, was returned to the opposite parties/plaintiffs. That apart, the opposite parties had tendered certified copy of examination-in-chief of the petitioner filed in Title Suit No. 20 of 2010" with prayer to get those documents marked as exhibits.
4. Learned Trial Court ignoring, rather declining the objection raised by the petitioner/defendant allowed the photocopy i.e. xerox copy of the said written statement to be marked as 'Ext. 3' with the observation "this is very vital document"
and this Court finds no ground to reject the prayer of the plaintiff to mark the written statement as 'Exhibit'.
5. So far as the documents between the plaint and written statement of a legal proceeding, under the Evidence Act though plaint is a public document but written statement not. Eventually, as a matter of course, any written statement without getting it proved in accordance with law cannot be marked as exhibit for it's consideration in a legal proceeding. In the instant proceeding learned Trial Court only upon hearing both sides and in allowing the application, the xerox copy of such a written statement was allowed to be marked. It is needless to mention that a photocopy of any original document is not a primary evidence, which has not been 3 followed in getting such a photocopy marked as 'Ext. 3' in this case. As a result, in the legal proceeding when the procedure has not been followed rather miscarriage of justice has been caused to the other side in not following the law, the interference is a must within the ambit of Article 227 of the Constitution of India.
6. So far as the 'Ext. 4' which was a certified copy of examination-in-chief only, said to be of the opposite party filed in Title Suit No. 20 of 2010, was also marked by recording the impugned order. It is obvious that Section 145 of the Indian Evidence Act can be well applied during course of subsequent proceeding by drawing attention to any statement made by the particular person. in any earlier proceeding. But as a whole, without getting it admitted by the said deponent, getting such a document marked as a whole as an exhibit on the basis of an application is one of the other wrongs committed by the learned Trial Court. At best, said certified copy would have been confronted during course of evidence of that witness if he would be available on dock. Learned Trial Court would be at liberty to deal with the certified copy of evidence-in-chief of that person appropriately and obviously in getting some mark straight way on be basis of the application by recording the impugned order.
7. Reason behind the above observations is that the further suit after disposal is supposed to be tested before the higher forum and for the 4 procedural wrongs or illegalities it would be the litigants who would be the worst sufferers which are not desirable. That is why setting aside the order dated February 18, 2016 with direction to expunge the marking of 'Ext. 3 and 4' in respect of the documents referred to therein learned Trial Court is directed to fix up a specific date if the suit is still pending before the Court, to take appropriate steps by the parties for further evidence and then to expedite the trial preferably within a further period six months from the date of communication of this order. Stay order, if any stands vacated.
8. Accordingly, the revisional application, being C.O. 1818 of 2012 is allowed on merit.
9. There will be no order as to costs.
10. Urgent photostat certified copy of this order, if applied for, be given to the parties, on priority basis.
( Mir Dara Sheko, J.) akb.