Calcutta High Court (Appellete Side)
Md. Nazim & Anr vs Leong Truck Khaing & Anr on 28 January, 2025
Author: Hiranmay Bhattacharyya
Bench: Hiranmay Bhattacharyya
28.01.2025
Item No.3
PG
Ct. No.7
C.O. 4060 of 2024
Md. Nazim & Anr.
Vs.
Leong Truck Khaing & Anr.
Md. Farhauddin
Mr. Shabbir Yardani
Ms. Shamama Nasrin ........for the petitioners
Mr. S.N. Dutta
Mr. Manoj Kr. Sharma...........for the opposite parties
1.The Order No. 32 dated October 7, 2024 passed in Miscellaneous Case No. 111 of 2022 by the learned Judge, 4th Bench, Presidency Small Causes Court at Calcutta arising out of Ejectment Execution Case No. 17 of 2002 is under challenge at the instance of the opposite parties in the said Miscellaneous case.
2. The petiutioners herein got an ex parte decree for recovery of possession, which was put into execution giving rise to Ejectment Execution Case No. 17 of 2022.
3. The opposite party no. 1 herein, who claims to be the original tenant in respect of the decreetal property, has filed the Miscellaneous Case No. 111 of 2022 alleging that the petitioner herein obtained a fraudulent decree against a fictitious tenant and took possession of the decreetal property by dispossessing the opposite party no. 1 therefrom.
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4. During cross-examination of OPW-1, a letter of the month of September, 2006 was attempted to be tendered by the learned advocate appearing for the petitioner in the said Miscellaneous case. Such an attempt was opposed by the opposite parties in the Miscellaneous case i.e. the petitioners herein on the ground that OPW-1 is not the competent person through whom the said document could be brought in evidence.
5. The learned trial Judge, by the impugned order, permitted the opposite party no. 1 herein to cross- examine the OPW-1 by tendering the letter of the month of September, 2006.
6. The learned advocate appearing for the petitioners submits that the said document is not relevant to the facts in issue of the Miscellaneous case and therefore, the same could not be brought into evidence through the OPW-1.
7. The learned advocate appearing for the opposite party places reliance upon section 138 of the Indian Evidence Act, 1872 in support of his contention that cross-examination need not be confined to the facts to which the witness testified on his examination-in- chief. He therefore, submits that the said document, being rlevant to the facts in issue, can be tendered to the OPW-1 during his cross-examination. 3
8. Heard the learned advocates for the parties and perused the materials on record.
9. In course of hearing of this civil revisional application, the learned advocate appearing for the opposite party no. 1 produces before this Court a copy the said letter issued by the learned advocate of Smt. Kalpana Dhur and others dated 09.2006, which is taken on record. The learned trial Judge was of the view that the said document is a letter of attornment and as such, an important incident of tenancy for which the petitioner of the Miscellaneous case may be permitted to cross- examine OPW-1 by tendering the said letter.
10. The said letter dated September, 2006 has been issued by the learned advocate of Smt. Kalpana Dhur and others and addressed to several persons including the opposite party no.1 herein. By the said letter a request was made to the opposite party no. 1 and others not to pay the monthly rent to any of the co- owners till the disposal of a suit for partition and administration.
11. After going through the said document, this Court is not inclined to accept the finding of the learned trial Judge that the letter issued by the learned advocate dated 09.2006 is a letter of attornment. The learned advocate appearing for the opposite party no. 1, in his usual fairness, also submits that the said document is not a letter of attornment.
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12. That apart the said letter was neither issued as per the instruction of the OPW-1 nor was the same addressed to him.
13. Section 138 of the Indian Evidence Act states that the examination and cross-examination must relate to relevant facts. The learned trial Judge was of the view that the said letter being a letter of attornment, is relevant to the facts in issue of the case and only for such reason, the learned trial Judge allowed the said document to be tendered during the cross-examination of OPW-1 by the petitioner of the Miscellaneous case.
14. This Court has already observed that the said document is not a letter of attornment. Thus the ultimate conclusion of the learned trial Judge lacks the foundational basis. In view thereof, the impugned order allowing cross-examination of OPW-1 by tendering the letter of the month of September, 2006 calls for interference.
15. Accordingly, the impugned order stands set aside.
16. The learned Judge, 4th Bench, Presidency Small Causes Court at Calcutta is requested to dispose of the Miscellaneous Case No. 111 of 2022 as expeditiously as possible without granting any unnecessary adjournment to either of the parties.
17. With the above observations/directions, C.O. 4060 of 2024 is disposed of.
18. There shall be, however, no order as to costs. 5
19. Urgent photostat certified copy of this order, if applied for, be furnished to the parties expeditiously upon compliance of all legal formalities.
(HIRANMAY BHATTACHARYYA, J.)