Calcutta High Court (Appellete Side)
Bhaswati Ray vs Smt. Tapasee Chowdhury & Anr on 19 December, 2017
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
In the High Court at Calcutta Civil Revisional Jurisdiction Appellate Side The Hon'ble Justice Sabyasachi Bhattacharyya C.O. No. 344 of 2017 Bhaswati Ray vs. Smt. Tapasee Chowdhury & Anr.
For the petitioner : Mr. Aniruddha Chatterjee,
Mr. Srijib Chakraborty,
Mr. Surya Prosad Chatterjee,
Mr. Mohan Lall Banerjee
For the opposite parties : Mr. Sabyasachi Choudhury,
: Mr. Sayantan Bose,
: Mr. Rajarshi Dutta
Hearing concluded on : 12.12.2017
Judgment on : 19.12.2017
Sabyasachi Bhattacharyya, J.:-
The matter is taken up for hearing since both the contesting parties are represented.
The present revisional application arises out of a probate proceeding. One Anima Sen having died leaving behind a Will, the petitioner initiated a probate proceeding as propounder, giving rise to Probate Case no. 58 of 2004. The said probate application subsequently turned contentious upon the opposite party no. 1 having opposed the same. The matter was thus registered as OC No. 2 of 2005. The Second Bench, City Civil Court at Calcutta granted probate ex parte on November 7, 2005. Subsequently, opposite party no. 1 took out an application for restoration of the suit, which was allowed, thereby restoring OC No. 2 of 2005 to its original file and number by setting aside the ex parte grant of probate. The petitioner adduced evidence in connection with the probate suit as plaintiff's witness no. 1 (P.W.1). Upon conclusion of the petitioner's cross-examination, one Rupak Gupta, the sole surviving attesting witnesses to the Will, adduced evidence as plaintiff's witness no. 2 (P.W.2). The said witness was cross-examined on at least three occasions over a period of several years.
2. On June 4, 2013, the said Rupak Gupta (P.W.2), was again cross- examined in part and such cross-examination was deferred on the prayer of the opposite party no. 1. At this juncture Rupak Gupta filed a petition praying for closing his examination as P.W.2. The grounds mentioned in such petition were, inter alia, that the said Rupak Gupta was working in Mumbai as a Senior Regional Sales Manager of a Private Company and that it was extremely difficult for him to obtain leave from office and attend Court. It was further stated in the petition that Rupak Gupta had, in the then recent past, undergone bypass surgery and was under medication and that his repeated visits to Kolkata to adduce evidence had taken a heavy toll on his health and that he had been advised by his doctors not to travel.
3. The Trial Court, vide order no. 79 dated June 4, 2013, deferred the cross- examination of P.W.2 till the next date that is August 8, 2013 and rejected the petition for closure of evidence.
4. On August 8, 2013, the matter could not be taken up due to a resolution of the local Bar and further cross-examination of P.W.2 was adjourned to September 27, 2013.
5. On September 27, 2013 the matter was again taken up for further cross- examination of P.W.2. It was recorded vide Order No. 81 of that date that at the time of hearing, the learned Advocate for the plaintiff declined to adduce any further evidence; so the evidence of PWs was closed. By the same order, the Trial Judge also expunged the evidence of P.W.2 as the said witness did not come forward to face cross-examination and November 29, 2013 was fixed for the evidence of defendant's witnesses (D.W.s).
6. The evidence of the D.W.1 was completed in full and closed on April 4, 2016. On that day, it was directed that arguments would commence on May 13, 2016.
7. The plaintiff/petitioner waited for several more dates and only on December 1, 2016 chose to take out an application for recall of the order dated September 27, 2013, by which the evidence of P.W.2 had been expunged. Vide order no. 104 dated December 1, 2016, the Trial Court rejected such prayer for recall and fixed the next date for hearing of arguments.
8. Being thus advised, the petitioner has preferred the instant challenge against order no. 81 dated September 27, 2013 as well as order no. 104 dated December 1, 2016, whereby the evidence of P.W.2 was expunged and the application for recall of such expunction order was rejected respectively.
9. The petitioner contends that the Trial Court acted without jurisdiction in expunging the evidence of the sole surviving attesting witness (P.W.2). It is submitted that the Explanation to Order XVII Rule 2 of the Code of Civil Procedure provides that where a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present. The petitioner relies in this context on a judgment reported at (2017) 2 CHN 160 (M/s Indo-Pacific Securities Ltd. vs. M/s Arihant International Ltd.) where a Division Bench of this Court, relying on the provisions of Order XVII Rule 2 read with Order XVII Rule 3 of the Code, held that when the D.W.1 in that case had faced cross-examination on repeated occasions and substantial evidence was already on record, the Trial Judge ought not to have proceeded to dispose of the suit without considering such evidence of the defendant even in the absence of the defendant.
10. The petitioner further relies on a judgment of a co-ordinate Bench reported at AIR 2002 Cal 281 (Dever Park Builders Pvt. Ltd. vs. Madhuri Jalan) where it was held, inter alia, that the testimony of a deceased defendant was admissible and the Court was bound to consider the weight to be attached to it for deciding the matter, where "a portion of the examination-in-chief was cross- examined". Accordingly, it was held that evidence of the deceased defendant ought not to be expunged and that there was no provision under law, if the witness is not cross-examined either in full or in part, to render his evidence absolutely inadmissible. The petitioner further cites a judgment reported at (2002) 4 CHN 382 (Paritosh Ghosh vs. Ashim Kumar Gupta). In the said judgment, another co- ordinate Bench had held that when a particular witness, after being examined-in- chief, does not make himself available for being cross-examined, then the evidence led by him in his examination-in-chief loses its credibility and is liable to be thrown aside.
11. Based on the aforesaid decisions, the petitioner argues that the order dated September 27, 2013, whereby the evidence of P.W.2 had been expunged, ought to be set aside.
12. The petitioner further submits that although there were some laches on the part of the petitioner in occasioning a considerable delay in filing the application for recall of the order dated September 27, 2013, such recall application ought not to have been rejected, thereby sustaining the previous order expunging the evidence of the sole surviving attesting witness, since the effect of such sustenance would be fatal to the probate proceeding.
13. While contradicting such arguments, the opposite party no. 1, who is the primary contesting party, urges that the carriage of proceedings lay with the petitioner, who is the propounder of the Will in question. After the expunction of the evidence of P.W.2, the petitioner waited till the opposite party no. 1 completed her evidence on the basis of such expunction and only thereafter filed the application for recall to set aside the expunction. The petitioner did not avail of any of the measures provided in law to summon the P.W.2 in spite of the unwillingness of such witness to adduce evidence. Such mala fide conduct of the petitioner by itself ought to be sufficient for rejection of the prayer of recall for the expunction order. In fact, if the expunged evidence of P.W.2 is now revived at such a belated stage, the opposite party no. 1 says that the opposite party no. 1 will be entirely displaced from her case and a bad precedent will be set. It will encourage fence- sitters and recalcitrant litigants to take a chance by coming up with a recall application only after the other side discloses its entire repertoire of evidence and materials.
14. The opposite party no. 1 cites a judgment reported at AIR 1952 Cal 218 (Phani Bhusan Ghosh vs. Sibakali Basu). Such judgment, rendered in the context of a proceeding under Section 367 of the Criminal Procedure by a co- ordinate Bench of this Court, laid down the proposition that unless examination of a witness is complete, that is to say, unless he has been cross-examined and re- examined or unless his cross-examination or re-examination has been declined, his evidence cannot be considered except in the circumstances mentioned in Section 33 of the Evidence Act. It was further held that in the said case there was nothing to show that the concerned persons were dead or incapable of giving evidence or could not be found or had been kept out of the way by the complainant; nor was there any evidence that their presence could not be obtained without an amount of delay or expense which in the circumstances of the case the Court considered unreasonable. In the absence of such circumstances, this Court held that such incomplete evidence could not be accepted.
However, in reply the petitioner refutes the applicability of such judgment in the present case since the same was rendered much prior to the 1976 amendment of the Code of Civil Procedure, which inserted the Explanation to Order XVII Rule 2 of the Code on which the petitioner relies.
15. The opposite party no. 1 cites another judgment reported at (1999) 3 SCC 457 (Iswar Bhai C. Patel vs. Harihar Behera), where it was held that an adverse presumption has to be drawn against the appellant-witness therein, who had not entered into the witness box and had not presented himself for cross- examination. Relying on the said decisions, the opposite party no. 1 argues that the recalcitrant petitioner cannot be permitted after such a long time to have the order of expunction recalled. The opposite party no. 1 had already disclosed his evidence and adduced evidence on the premise that there was no evidence of the attesting witness to the Will. If, at the argument stage, the expunged evidence is revived, the entire basis of the evidence of opposite party no. 1 will go and this would affect the opposite party no. 1 adversely to an irrecoverable extent.
16. The opposite party no. 1 then relies on the language of Order XVII Rules 2 and 3 of the Code of Civil Procedure in order to impress upon this Court that the Explanation to Rule 2 applies only when the evidence of a party witness has been recorded; since P.W.2 was not a party witness, the principle embodied in the Explanation would not apply. It is thus submitted that the distinction between precedents rendered before and after the 1976 amendment of the Code of Civil Procedure vis-à-vis Order XVII Rule 2 becomes meaningless and Phani Bhusan Ghosh (supra) still holds the field in respect of non-party witnesses as in the present case. Thus, the judgments cited on behalf of the petitioner are also not applicable to the instant case as per the submissions of the opposite party no. 1, since those were in respect of party witnesses.
17. Upon hearing both sides and considering the judgments cited as well as the materials on record and relevant provisions of law, the primary question which falls for consideration is whether the principle embodied in the Explanation to XVII Rule 2 of the Code of Civil Procedure applies to non-party witnesses as well and is not restricted only to party witnesses (that is, when a party to the lis himself/herself adduces evidence); consequentially, whether the proposition laid down in M/s Indo-Pacific Securities Ltd. (supra) and Dever Park Builders Pvt. Ltd.(supra) is applicable to non-party witnesses as well.
18. For proper consideration of the matter, the provisions of Order XVII Rules 2 and 3 of the Code are required to be set out:-
"2. Procedure if parties fail to appear on day fixed. - Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit. "Explanation. - Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present."
"3. Court may proceed notwithstanding either party fails to produce evidence, etc. - Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default,-
(a) if the parties are present, proceed to decide the suit forthwith, or
(b) if the parties are, or any of them is, absent, proceed under rule 2."
19. A plain reading of Order XVII Rule 2 and its Explanation shows that where the evidence or a substantial portion of the evidence of any party has already been recorded, the Court may proceed on the premise that such party were present, despite such party failing to appear on a day of hearing. This may give rise to a valid interpretation, as argued by the opposite party no.1, that such rider applies only to a party witness.
20. Rule 3 of Order XVII, however, contemplates a situation where a party fails either to produce his evidence or to cause the attendance of his witness. In such a situation, there can arise two situations - one where both parties are present and another where either or both parties are absent. In the first scenario, where both parties are present, the Court will proceed to decide the suit. But in the second scenario, if one of the parties or both of them are absent, Rule 2 along with its Explanation will come into operation.
21. Hence, a comprehensive reading of Rules 2 and 3 of Order XVII of the Code gives rise to the inevitable conclusion that even when a party fails to cause the attendance of his witness (as opposed to a party witness himself), the Explanation of Rule 2 will apply by virtue of Rule 3 (b). Consequently, where the evidence or a substantial portion thereof has already been recorded even in respect of a non-party witness, the Court may proceed as if the party were present even if such party fails to actually appear on a day of hearing.
22. In the light of the aforesaid inevitable interpretation, it has to be held that the judgments cited by the petitioner on Order XVII Rule 2 of the Code also apply to non-party witnesses, whose evidence is substantially on record, by virtue of Rule 3 (b) of Order XVII. Thus the judgments cited by the petitioner in the context of the Explanation to Order XVII Rule 2, in particular the Division Bench judgment of this Court in M/s Indo-pacific Ltd. (supra), hold good. On the contrary, Phani Bhusan Ghosh (supra), rendered much before the 1976 amendment of the Code, whereby the Explanation to Order XVII Rule 2 and the latter part of Rule 3 were introduced, becomes academic and inapplicable.
23. As such the well-settled principle, that the evidence of a witness will not be expunged but its evidentiary value considered at the time of hearing, despite cross-examination of such witness having not been completed, holds good ground even in the context of non-party witnesses. Therefore, the interpretation of Order XVII Rule 2, coupled with Rule 3, as sought to be argued by the opposite party no. 1, is not tenable in the eye of law.
24. Thus both the questions which fell for consideration, as specified in paragraph no. 17 above, are answered in the affirmative.
25. Order no. 81 dated September 27, 2013, whereby the entire evidence of P.W.2 was expunged, cannot thus be sustained in the eye of law.
26. Also, upon a perusal of the evidence which had already been adduced by the P.W.2 and the evidence adduced on behalf of the opposite party no. 1, this Court is of the prima facie opinion that:
i) There were sufficient counter-suggestions and substantial cross-
examination of the P.W.2 on record to controvert the examination-in-chief of P.W.2 on all the salient points involved in the lis.
ii) The evidence adduced on behalf of the opposite party no. 1 was not confined to a perception that there was no evidence of the attesting witness of the Will on record; on the contrary, the examination-in-chief of D.W.1 was sufficiently broad-based to cover a situation where the evidence of P.W.2 had not been expunged but was on record.
27. However, the above opinion as to the sufficiency of the evidence on record on both scores is only prima facie for the purpose of disposing of the present revisional application.
28. Another consideration which has to be taken note of is whether this Court has power to set aside the expunction at a belated stage of the suit. In this respect, the provisions of Section 105 (1) of the Code of Civil Procedure ought to be taken note of. Such provisions are as follows:-
"105. Other orders. - (1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect of irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. ..."
29. Since the petitioner could very well have challenged the order expunging the evidence of P.W.2 in an appeal carried from the final decree of the probate suit on the ground of any error, defect or irregularity of such order since such order affected the decision of the case, it would be absurd to put forth the proposition that such an error, defect or irregularity cannot be corrected under Article 227 of the Constitution during pendency of the suit itself. Provision of an autopsy rather justifies a preventive biopsy with regard to the legality of the order of expunction of evidence of P.W.2.
30. The power of judicial review cannot be fettered merely due to the delay in challenging an order without jurisdiction, where such error of jurisdiction is palpable and would vitiate the entire proceeding. Even irrespective of the application for recall of the petitioner, this Court has ample power under Article 227 of the Constitution of India to rectify the jurisdictional error committed by the Court below in expunging the evidence of P.W.2 in its entirety.
31. The aforesaid proposition ought to be applied all the more to a proceeding of the present nature which, being a probate proceeding, will culminate in a judgment in rem, affecting the world at large. The responsibility of the Court is of a much higher degree in considering a material defect committed by the Trial Court in such a proceeding. It is unconscionable that due to the whims of the sole surviving attesting witness to a Will, the last wishes of the deceased testator will not be given effect to. The error we are considering here is of a paramount nature and not a mere technical one and would vitiate the entire probate proceeding.
32. Although the propounder/petitioner could have challenged the initial order of expunction much earlier and also taken steps to summon P.W.2 by other means if the said witness chose not to adduce further evidence, such lethargy on the part of the propounder cannot, by itself, take away the voice of the deceased testator. It is the bounden duty of any Court of law to be more cautious in correcting such error in a proceeding of the present nature.
33. As such, the said order of expunction ought to be set aside and the evidence of P.W.2, which is already on record, ought to be revived, subject of course to the consideration of its evidentiary value and weightage by the Court below at the final hearing. Needless to say, the petitioner must be saddled with costs for causing such harassment to the opposite party no. 1, who is the main contesting party. The laches of the petitioner are all the more since the petitioner did not make any effort to explore the due process of law in summoning the P.W.2 even after the said witness expressed his intention not to adduce further evidence.
34. In the circumstances, C.O. No. 344 of 2017 is allowed on contest against opposite party no. 1 and ex parte against the opposite party no. 2, thereby setting aside the orders impugned, being order No. 81 dated September 27, 2013 and order no. 104 dated December 1, 2016 passed by the Second Bench, City Civil Court at Calcutta in O.C. No. 2 of 2005, and reviving the evidence of P.W.2 Rupak Gupta which is already on record, upon the expunction of such evidence being set aside. It will be open for the Trial Court to consider the value and weight of such evidence at the time of final hearing. In the event the Trial Court is of the opinion that the evidence of P.W.2 which is already on record is sufficient and can be lent weightage even without completion of cross-examination of P.W.2, it will be incumbent upon the Trial Court to grant the opposite parties opportunity to lead further evidence if the opposite parties so require. Needless to say, upon such evidence being adduced on behalf of the opposite parties, the petitioner will be entitled to further cross-examine such witnesses of the opposite parties, if any, as brought on recall or otherwise.
35. It is further made clear that under no circumstances will the petitioner be permitted to recall P.W.2 as witness any further.
36. The petitioner will pay costs of Rs. 30,000/- (Rupees Thirty Thousand) to the opposite party no. 1 within a fortnight from date to compensate the harassment caused to the opposite party no. 1 due to the laches of the petitioner.
(Sabyasachi Bhattacharyya, J.)