Calcutta High Court (Appellete Side)
Sri Krishnapada Samanta vs Smt. Gita Dwari & Ors on 2 March, 2020
Author: Shampa Sarkar
Bench: Shampa Sarkar
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02.03.2020
Court No. 19
Item No. 05
SRM/CP
C.O. 3399 of 2019
Sri Krishnapada Samanta
vs.
Smt. Gita Dwari & ors.
Mr. Partha Pratim Roy,
Mr. Sayantan Hazra.
.....for the petitioner.
Mr. Atanu Biswas,
Mr. Bikram Basak.
...for the respondents.
Today, the matter appeared under the heading 'Extension of Interim Order' and the matter is taken up for final hearing with the consent of the parties. The learned advocates for the opposite parties 1 and 2 are present. Service upon the other proforma opposite parties had been dispensed with by my predecessor by order dated September 26, 2019.
This is an application challenging the order dated September 3, 2019, passed by the learned Civil Judge (Junior Division), Ghatal, Paschim Medinipur in Title Suit No. 94 of 2017.
The contention of the learned advocate for the petitioner is that when the validity of a sale deed No. 9772 of 1962 had been upheld in another suit, the same could not be challenged by the petitioner who had executed the said sale deed by affixing her left thumb impression. According to Mr. Roy, when a court of 2 law had upheld the validity of the said deed, the executrix could not in law challenge the existence or validity of the same. He next submits that by the order impugned the learned court below allowed the opposite party no. 2, namely, Smt. Durga Maity, to put her left thumb impression which was to be taken and preserved for the adjudication of the suit so that the same could be compared at a later stage, if necessary, to the alleged deed. According to Mr. Roy, the suit was itself barred as there was no prayer for cancellation of the said deed. Mr. Roy further contended that the way the prayer 'C' of the plaint had been couched, cancellation was prayed as a consequential relief to the declaration and, as such, the suit was valued at Rs.110/-. According to Mr. Roy the same was a declaratory suit and a prayer for cancellation should always be a substantial relief. According to Mr. Roy going by the valuation of the suit, without there being a main prayer for cancellation of the deed, the suit itself was barred and, as such, retaining the thumb impression of the opposite party no. 2 could not arise in a suit which was not maintainable in law.
Mr. Biswas, learned advocate appearing on behalf of the opposite parties Nos.1 and 2, submits that there is a prayer for cancellation of the alleged deed. That the entire body of the plaint would reflect that the specific case of the plaintiff no. 2 was that the deed was prepared by fraud and the signature was forged. He further submitted that the decree of the learned court, upholding the validity of the said deed was not binding on the opposite party no. 2, inasmuch as, the opposite party no. 2 was not a party to the said proceedings. As soon as the opposite party no. 2 came to know about the alleged deed, allegedly executed 3 by her, on the basis of which the defendants were claiming title and were trying to dispossess the opposite parties 1 and 2, the suit was filed before this Court praying for declaration that the deed was not binding on the opposite parties 1 and 2. He further submits that the issue whether the suit was properly valued or not and whether the prayer for cancellation of the deed should have been a substantive relief claimed in this regard were to be decided by the learned court below, if called upon to do so by the defendants by way of a separate application. But, justice would be denied if the left thumb impression of the opposite party no. 2 was not taken down and preserved for comparison, when the suit was at the stage of trial in view of the deteriorating health and the age of the opposite party no. 2, who was around 80 years old. He also submits that the left thumb impression of the opposite party no. 2 was an important evidence necessary for the adjudication of the suit.
He relied on the decisions of this Court in the matter of Aditi Rani Biswas vs. Khagendra Nath Dutta reported in Laws(Cal) 2011 1 116 and Anil Kumar Hazra vs. Bhakta Hazra reported in Laws(Cal) 2015 6 50.
By the order impugned, the learned Court below allowed the plaintiff No.2 to give her left thumb impression on the consideration that the plaintiff No.2/opposite party No.2 being an aged lady, there was an apprehension that she may expire during the pendency of the suit and the suit being filed on the allegation of forgery of her left thumb impression and false personation, was required to be adjudicated.
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I do not find any irregularity with the order impugned. However, this Court is conscious of the fact that it was also necessary for the opposite party No.2 to be cross-examined by the defendants and questions with regard to the signature and the left thumb impression and her allegation of forged documents were required to be put, in view of the admitted fact that the opposite party No.2 herself has said that she is an aged person and could expire at any time and her suit was consequently failed.
Under such circumstances, the order impugned is not interfered with. The left thumb impression of the opposite party No.2 should be retained, as directed the learned Court below. But the learned Court below is directed to expeditiously complete the evidence of the plaintiff No.2 so that the defendants are also not prejudiced in any way in so far as their claim to cross-examine the opposite party is concerned with regard to the genuineness of the deed and also to controvert the allegation of forgery and false personation of the opposite party No.2.
The entire exercise should be completed within a period of one month from the date of communication of this order.
This revisional application is, thus, disposed of.
There will be, however, no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Shampa Sarkar, J.) 5