Calcutta High Court (Appellete Side)
Sri Bishnupada Sahoo & Ors vs Sri Swapan Kumar Pal & Ors on 23 December, 2013
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
Form No.J(2) IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE C.O. No. 162 of 2013 Present :
The Hon'ble Mr. Justice Prasenjit Mandal Sri Bishnupada Sahoo & Ors.
Versus Sri Swapan Kumar Pal & Ors.
For the petitioners: Mr. Bidyut Kr. Banerjee, Mr. Bratindra Narayan Ray.
For the opposite parties: Mr. S.P. Roychowdhury,
Mr. Jiban Ratan Chatterjee,
Mr. Soumen Kumar Dutta,
Mr. Subhas Jana.
Heard On: 17.12.2013.
Judgement On: December 23, 2013.
Prasenjit Mandal, J.: This application is at the instance of the plaintiffs and is directed against the Order No.70 dated December 12, 2012 passed by the learned Civil Jude (Senior Division), 2nd Court, Contai in Title Suit No.41 of 2012 thereby directing for production of a sale deed seized by police in connection with a G.R. Case No.689 of 1991 of Contai P.S. The question is whether the learned Trial Judge is justified in allowing the prayer of the defendant no.4 thereby calling for the deed being no.633 of 1990 which had been seized by police in connection with the G.R. Case No.689 of 1991 under Section 468/471 of the I.P.C. by the Contai police station.
That document has been called for marking exhibit on behalf of the opposite party no.5. The police had ceased the said document in connection with the concerned G.R. Case referred to above, and the said case has not been finally adjudicated.
From the materials on record, it appears that the said deed had been prepared on forged stamp papers and as such the said document had been seized. As per materials on record, the said sale deed had not been registered as yet. Therefore, the sale is not complete and no right, title and interest had passed on the basis of that deed. The said sale deed is not required for 'collateral purpose' but, as indicated, for the main purpose of the suit. Unless, a sale deed is properly executed on a proper stamp paper and registered, it cannot be admitted into evidence at all. While allowing the application, the learned Trial Judge has not dealt with such facts.
The defendant no.5 has contended that, by the sale deed in question, the plaintiffs had transferred the property in favour of the defendant no.5. So, the document is called for, for proper adjudication of the main matter in issue in the suit.
It is pertinent to mention that the opposite party himself made an application for exemption from production of the said deed and such prayer was allowed by the learned Trial Judge with a rider to the effect that the opposite party would be liable to face consequences if any, for non-production of the said document in the course of trial and that order having not been challenged to any higher authority, has attained finality.
Therefore, the leaned Trial Judge has committed an error in law in calling for the document which has not been properly executed and registered. So, if the prayer is allowed, it will have the effect of nullifying the earlier orders dated February 28, 2011 and November 19, 2012. So, the learned Trial Judge is not justified in passing the impugned order ignoring earlier orders referred to above.
Therefore, in my view, the order for production of the said sale deed for proper adjudication of the suit was not, at all, justified.
The learned Trial Judge has, therefore, committed illegality and material irregularity in passing the impugned order.
Accordingly, the impugned order cannot be sustained. The application is, therefore, allowed. The impugned order stands set aside.
The application of the defendant no.5 calling for the document from the concerned police station stands rejected. The learned Trial Judge shall proceed with the suit in accordance with law.
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.
(Prasenjit Mandal, J.)