Calcutta High Court (Appellete Side)
Smt. Nilima Saha And Others vs Narayan Chandra Saha And Another on 24 August, 2023
August 24, 2023
Sl. No.19
Court No.19
s.biswas
CO 2498 of 2023
Smt. Nilima Saha and others
vs.
Narayan Chandra Saha and another
Mr. Abhijit Roy
Mr. Tanmay Dey
Mr. Sayan Sinha
Mr. Nilanjan Bhattacharya
... for the petitioners
Mr. Krishna Das Poddar
... for the opposite party
This revisional application arises out of the
order dated July 14, 2023, passed by the learned
Judge, 2nd Bench, Presidency Small Causes Court,
Calcutta, in Ejectment Suit No.451 of 2015.
The petitioners are the tenants. The application
filed by the petitioners under Section 151 of the
Code of Civil Procedure was rejected on the ground
that the evidence which the petitioners wanted to
adduce by recalling DW1, was available with the
petitioners since 2022. Nothing prevented the
petitioners from coming earlier, before the evidence
of DW1 was closed and such prayer was made only
to delay the proceedings.
Apart from the said observations, the learned
court below did not record any other ground for
rejection. Whether the contentions of the petitioners
with regard to the reason for recalling DW1 were
justified or not, was not discussed at all.
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This court finds that in the written statement,
the defendants have stated that the plaintiffs were in
the habit of inducting tenants and the ground of
reasonable requirement was illusory. New tenancies
were created. Even during pendency of the suit, new
tenants were inducted. In order to ascertain such
fact, information was taken from the State Election
Commission and the electoral rolls were obtained to
show that very recently tenants had been inducted.
Under such circumstances, this court is of the
view that one last chance should be given to the
DW1. The probative value of such documents will be
gone into at the trial. Needless to mention, if any
document is sought to be tendered, the same will be
in compliance with the provisions of the Evidence
Act.
Learned advocate for the plaintiff submits that
the Hon'ble Apex Court had categorically held that
the acute problem which was being faced by the
judiciary in the justice delivery system, was
pendency of litigation and repeated adjournments.
The Hon'ble Apex Court held that the court
should not grant any adjournment in a routine
manner and should not delay in the dispensation of
justice. There was a need to change the work
culture. Adjournment culture should be outside the
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periphery of the justice delivery system, in order to
maintain rule of law.
It has also been held that the judicial officers
should not worry, if their conscience was clear.
Judicial officers were only to bear in mind the duties
towards the litigants who were before the court.
In the case, the suit for eviction was filed on the
ground of reasonable requirement of the landlord.
This court agrees with the contentions of the
learned advocate for the plaintiff that in a suit for
eviction on the ground of reasonable requirement,
delay caused by the defendants may vitally affect the
right of the landlord insofar as his necessity to use
the premises was concerned.
However, this court is of the view that the
learned court below should have recorded why
further evidence by DW1, was not warranted. The
learned court also did not record whether the
evidence/documents which were sought to be
tendered were at all relevant or not. The learned
court below was required to undertake such exercise
and arrive at a definite finding without mechanically
rejecting the application on the ground of delay.
The decision of the Apex Court in K.K.
Velusamy vs. N. Palanisamy reported in (2011) 11
SCC 275, is relied upon. The relevant paragraphs
are quoted below:-
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"14. The amended provisions of the Code
contemplate and expect a trial court to hear the
arguments immediately after the completion of
evidence and then proceed to judgment.
Therefore, it was unnecessary to have an
express provision for reopening the evidence to
examine a fresh witness or for recalling any
witness for further examination. But if there is a
time gap between the completion of evidence
and hearing of the arguments, for whatsoever
reason, and if in that interregnum, a party
comes across some evidence which he could not
lay his hands on earlier, or some evidence in
regard to the conduct or action of the other
party comes into existence, the court may in
exercise of its inherent power under Section 151
of the Code, permit the production of such
evidence if it is relevant and necessary in the
interest of justice, subject to such terms as the
court may deem fit to impose.
15. The learned counsel for the respondent
contended that once arguments are
commenced, there could be no reopening of
evidence or recalling of any witness. This
contention is raised by extending the convention
that once arguments are concluded and the
case is reserved for judgment, the court will not
entertain any interlocutory application for any
kind of relief. The need for the court to act in a
manner to achieve the ends of justice (subject to
the need to comply with the law) does not end
when arguments are heard and judgment is
reserved. If there is abuse of the process of the
court, or if interests of justice require the court
to do something or take note of something, the
discretion to do those things does not disappear
merely because the arguments are heard, either
fully or partly. The convention that no
application should be entertained once the trial
or hearing is concluded and the case is reserved
for judgment is a sound rule, but not a
straitjacket formula. There can always be
exceptions in exceptional or extraordinary
circumstances, to meet the ends of justice and
to prevent abuse of process of court, subject to
the limitation recognised with reference to
exercise of power under Section 151 of the
Code. Be that as it may. In this case, the
applications were made before the conclusion of
the arguments.
16. Neither the trial court nor the High Court
considered the question whether it was a fit
case for exercise of discretion under Section 151
or Order 18 Rule 17 of the Code. They have not
considered whether the evidence sought to be
produced would either assist in clarifying the
evidence led on the issues or lead to a just and
effective adjudication. Both the courts have
mechanically dismissed the application only on
the ground that the matter was already at the
stage of final arguments and the application
would have the effect of delaying the
proceedings."
The order impugned is set aside, but cost is
enhanced.
Only the DW1 shall adduce further evidence on
the next date fixed by the learned court below in the
suit. The evidence of DW1, including the cross-
examination, shall be completed on the next date
fixed. The plaintiff will be at liberty to adduce
further evidence if they deem fit. Such evidence of
the plaintiff including the chief and cross shall be
completed on the following day. The arguments shall
commence on and from September 4, 2023 and both
the parties shall be allowed to argue their respective
cases, in accordance with law. Parties shall
conclude their arguments by September 15, 2023.
Three days shall be given to each of the parties to
complete their arguments on and from September 4,
2023.
The order dated July 14, 2023 is also set aside,
as it appears that the arguments of the defendants
have been closed during the pendency of the
revisional application.
With regard to the cost, this court is of the view
that in view of the delay, for which the plaintiffs have
suffered, cost of Rs.25,000/- shall be paid on or
before August 28, 2023. Upon the court satisfying
itself that the cost has been paid to the plaintiffs or
to the learned advocate on record for the plaintiffs,
the evidence of the DW1 shall be allowed. This time
schedule shall be adhered to as far as possible.
All the parties are directed to act on the basis of
the server copy of the order.
Urgent photostat certified copies of this order, if
applied for, be made available to the parties upon
compliance with the requisite formalities.
(Shampa Sarkar, J.)
