Calcutta High Court (Appellete Side)
Raj Kumar Shaw vs Ram Pyari Devi on 17 September, 2019
1 S/l.
20. Bpg.
September 17, 2019 In the High Court at Calcutta Civil Revisional Jurisdiction C.O. No.1574 of 2019 Raj Kumar Shaw Versus Ram Pyari Devi Mr. Mainak Bose, Mr. Debjit Mukherjee, Ms. Susmita Chatterjee.
...for the petitioner.
Mr. Tarak Nath Halder.
...for the opposite party.
The present challenge is directed against an order whereby the revocation court refused the petitioner's prayer for production of certain documents as additional evidence at a belated stage. This was apparently the second attempt of the petitioner in doing so.
Learned senior counsel appearing for the petitioner submits that the previous application was cryptic and as such, the first rejection was virtually at a technical score. However, for abundant caution, it is submitted that both orders have been challenged in this revisional application. The grounds sought to be 2 made out in the second application under Order XVIII Rule 17 of the Code of Civil Procedure were primarily that the petitioner was rustic and ignorant of law and was not properly advised. The bone of contention of the revision case is, as to whether the probate granted, question of the Will of the testator, who the petitioner alleges to be his father, was defective in view of non-citation on the petitioner. Probate, it is alleged, was obtained on the impression being given to the probate court that the testator did not leave any heir suppressing the existence of his son, that is the present petitioner. As such, the allegation between the petitioner and the testator is the moot question which is to be decided in the revision case.
Learned counsel for the opposite party cites a judgment reported at 2009 (4) SCC 410 (Vadiraj Naggappa Vernekar (D) Through Lrs. Vs Sharad Chand Prabhakar Gogate) for the proposition that an application under Order XVIII Rule 17 of the Code, although can be allowed, but is generally not allowed to permit the petitioner to fill up the lacunae in evidence.
Learned counsel for the opposite party submits that no plausible reason whatsoever for the delay in filing the application under Order XVIII Rule 17 of the Code was furnished in the said application and as such the trial court was justified in refusing the said prayer at such a belated stage.
3
Upon hearing both sides and considering the cited judgment, it is evident that the proceeding emanates from a revision case and the same akin to the probate proceeding, would amount to a judgment in rem, binding world at large, thereby putting the restrictions regarding adduction of evidence on more liberal footing, in order to avoid the court to get a proper and complete picture, as opposed to a dispute in personally wherein only the rights of the parties to the litigation thereby affected.
That apart, even in the cited judgment, relied on by the opposite party, the Supreme Court was pleased to hold the provisions of Order XVIII Rule 17 of the Code has its main purpose to enable the Court, while trying a suit, to clarify any doubts which may have with regard to the evidence led by the parties. The said provisions, it was further held, were not intended to be used to fill up omissions in the evidence of a witness who has already been examined. It was also held that the said power of recalling the witness was available at the time when the affidavit of evidence of witness was prepared and if such new facts have been discovered which were not within the knowledge, the court allowed such application. The Supreme Court held that the power under Order XVIII Rule 17 of the Code cannot be exercised by the courts either on its own motion or on an application filed by any of the parties to the suit, but such power is to be invoked not to fill up the lacunae in the 4 evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination.
The trial court, while reciting the applications under Order XVIII Rule 17 of the Code did not go into the question of the relevance of the documents and/or as to whether those would be necessary to clarify the ambiguity which may arise during the course of the examination. The trial court approached in a mechanical manner in disposing the said application apparently because the application was filed at the belated stage.
However, the documents now sought to be produced cannot be said merely to fill up the lacunae, since they are intended to supplement several documents which had already been filed by the petitioner, but admittedly in support of his claim of being the son in the present case, this was not the case no document filed initially but such omission was sought to be filled up but a case where the petitioner sought to introduce further evidence in support of the documents already on record, for a proper and complete adjudication of the revision case and to avoid any ambiguity that may arise during the course of the examination. In such view of the matter, the trial court acted without jurisdiction in passing the impugned order.
Accordingly, C.O. 1574 of 2019 is allowed, thereby setting aside the impugned orders and permitting the petitioner to adduce 5 the additional documents sought to be adduced as additional evidence by the petitioner, in accordance with law, subject to compliance as contemplated in the Code of Civil Procedure as well as in the Evidence Act. Needless to say, the opposite party will be at liberty to object to the marking of such documents as exhibits, as permitted under the law. Such exercise of adduction of evidence and cross-examination shall be completed by the court below by fixing short dates, if necessary, latest by December 15, 2019.
There will be no order as to costs.
Urgent certified website copies of this order, if applied for, be given to the parties upon compliance of all requisite formalities.
(Sabyasachi Bhattacharyya, J. )