The Calcutta High Court disposed of a revision application filed challenging an order dated 12th December 2017 passed by the learned Judge in Commercial Suit. The Court observed that since the plaintiff/petitioner was supposed to file documents along with the affidavit-in-chief as evidence, which they failed to do, they ought to have filed a supplementary affidavit to that extent in order to reexamine the witness.
Brief Facts:
Petitioner states that during trial on 11th December, 2017 the plaintiff’s witness namely PW. 1 was cross-examined by the defendant’s Counsel, and the original partnership deed and the partnership farm registration certificate were asked to produce as the plaintiff claimed the said farm is a partnership farm. As the PW. 1 at the time of evidence could not produce the same so he prayed for an adjournment to produce the said documents on the next date i.e., on 12th December, 2017. On 12th December 2017 while the PW. 1 was cross-examining, the learned Judge informally received the original partnership deed and registration certificate and marked the same as ‘Exhibit 22’ and ‘Exhibit 23’ without following the process of law as laid down under the provision of the Code of Civil Procedure. Learned Counsel for the petitioner objected to such a mode of admissibility of documents and drew the court’s attention stating that the documents as aforesaid cannot be accepted until and unless the same is submitted by way of supplementary affidavit in Chief. Accordingly, the learned Counsel for the petitioner filed an application for adjournment to prefer revision against the said order but the Trial Judge allowed the said adjournment prayer subject to payment of the cost of Rs. 15,000/- with further observation that in default of payment of said cost, the defendant would be debarred to cross-examine the PW. 1 and the next date is fixed for further cross-examination of PW. 1.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner submitted that the Court below erred in law in imposing the cost of Rs. 15,000/- and the Court below failed to appreciate that the opposite party herein did not file the partnership deed and registration certificate of the partnership firm at the time of filing of the commercial suit, which is mandatory and in absence of such document, the suit cannot be entertained. Learned Court below arbitrarily and illegally marked the said two documents as Exhibit 22 and Exhibit 23 and also illegally imposed the cost of Rs. 15,000/- upon the petitioner.
Contentions of the Opposite Party:
The Learned Counsel for the Respondent submitted that the said two documents were inspected by the defendant/opposite party earlier during discovery and inspection and as such he has no right to raise such a question and the Court below rightly marked the said documents as Exhibits and the Court below was justified in imposing the cost of Rs. 15,000/- as defendants are reluctant to proceed with the suit.
Observations of the Court:
The Court noted that Order XVIII, Rule 4(1) deals with the examination-in-Chief of a witness and it provides that the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence. The party who has examined the witness may seek the Court for conducting further examination-in-chief of the witness. Such further examination-in-chief can be offered by way of an additional affidavit.
The Court observed that from the aforesaid provision, it is quite clear that the plaintiff/petitioner was supposed to file those documents along with the affidavit-in-chief as evidence. Since they have not done so and they have filed it during the cross-examination of PW. 1, so they ought to have filed a supplementary affidavit to that extent in order to reexamine the witness. In such view of the matter, the order impugned calls for interference.
The decision of the Court:
The Calcutta High Court, disposing of the application, held that the order impugned dated 12th December, 2017 in connection with the order by which documents were marked as Exhibit 22 and Exhibit 23 and imposing of cost of Rs. 15,000/- for seeking adjournment are thereby set aside.
Case Title: Damodar Valley Corporation vs Commercial Enterprises
Coram: Hon’ble Justice Ajoy Kumar Mukherjee
Case no.: C.O. 58 of 2018
Advocate for the Petitioner: Mr. Shiba Prasad Bhattacharya
Advocate for the Opposite Party: Mr. K.C. Garg
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