Calcutta High Court
Malay Chatterji And Ors vs Soumi Banerji And Ors on 1 August, 2024
ORDER SHEET
IA No.GA/12/2024
In
TS/15/2013
IN THE HIGH COURT AT CALCUTTA
Testamentary & Intestate Jurisdiction
ORIGINAL SIDE
IN THE GOODS OF :
DR. PRASUN KUMAR BANERJI (DEC)
AND
MALAY CHATTERJI AND ORS
-VS-
SOUMI BANERJI AND ORS
BEFORE:
The Hon'ble JUSTICE KRISHNA RAO
Hearing concluded on 24.07.2024
Order on 01.08.2024
Appearance :
Mr. Sabyasachi Choudhury, Adv.
Mr. Aniruddha Mitra, Adv.
Mr. R.L. Mitra, Adv.
Ms. Priyanka Dhar, Adv.
... for the plaintiff
Mr. Sayantan Bose, Adv.
Ms. Ranjabati Sen, Adv.
Ms. Sarada Hariharan, Adv.
... for the defendant nos. 1(a) and 1(b)
ORDER
The Court: The defendant nos. 1(a) and 1(b) have filed the present
application being GA/12/2024 for recalling of the order dated 31 st August,
2023 and for allowing the defendant nos. 1(a) and 1(b) to cross-examine
the witness of the plaintiffs, namely, Gauri Shankar Gupta.
On 31st August, 2023, the erstwhile advocate, who was
representing the defendant nos. 1(a) and 1(b) submitted before this Court
that he has not received any response from the defendant nos. 1(a) and
1(b) and prayed for his discharge from this case as counsel for the
defendant nos. 1(a) and 1(b). This Court directed the learned counsel to
issue notice upon the defendants informing that he is withdrawing himself
from this case as counsel for the defendant nos. 1(a) and 1(b). On 3rd
October, 2023 the matter was taken up for hearing and on the said date,
the learned counsel for the defendant nos. 1(a) and 1(b) has produced a
communication dated 8th September, 2023 wherein he has informed the
defendant nos. 1(a) and 1(b) that he has not received any instruction and
he has prayed for his discharge from this case as counsel for the
defendant nos. 1(a) and 1(b). Even after receipt of the mail, the defendants
have neither appeared before this Court nor have engaged any advocate to
contest their case and this Court discharged the erstwhile advocate from
this case for appearing as counsel for the defendant nos. 1(a) and 1(b).
Now, the defendant nos. 1(a) and 1(b) by engaging another counsel
has filed the present application. Mr. Sayantan Bose, learned advocate
representing the defendant nos. 1(a) and 1(b) draws the attention of this
Court to several mails and WhatsApp messages and submitted that in
reply to the WhatsApp message dated 11th August, 2023 the defendants
have sent reply on 13th August, 2023 allowing the erstwhile advocate to
proceed with the cross-examination of the witness of the plaintiffs,
namely, G. S. Gupta. On 16th August, 2023, the erstwhile advocate for the
plaintiffs had again sent a WhatsApp message to the defendants informing
that he has not received any written instruction and he is not taking any
further action. On receipt of the said WhatsApp message, the defendants
have not sent any reply.
Mr. Bose, submitted that on 22nd September, 2023, the defendants
have received an e-mail from the learned advocate for the plaintiffs along
with an application being GA/11/2023 for recording evidence of Mr.
Bhaskar Ganguly, who is one of the purported joint executors of the Will.
He submits that the defendants tried to contact the learned advocate over
phone and WhatsApp messages and also sent e-mails dated 25th
September, 2023 and 27th September, 2023 requesting the learned
advocate to clarify about the application but the learned advocate has not
taken any steps. Mr. Bose by referring the order dated 3rd October, 2023
has submitted that the erstwhile advocate has misrepresented this Court
by suppressing the e-mails dated 22nd September, 2023 and 29th
September, 2023 and made an incorrect submission that the defendants
have not contacted or given instruction to the learned advocate.
Mr. Bose submits that in the meantime the Commissioner
appointed by this Court has examined the witness of the plaintiffs and on
completion of the examination of the witness, the Commissioner has
submitted its report before this Court and this Court has accepted the
said report. Mr. Bose submits that the plaintiffs' witness was examined in
the absence of the defendants as well as in the absence of the learned
advocate for the defendants and as such the defendants could not get an
opportunity to cross-examine the plaintiffs' witness. He submits that the
plaintiffs have filed the present case for grant of probate of the alleged Will
which the defendants are contesting by filing caveat and affidavit in
support of caveat and as such if the defendants are not given an
opportunity to cross-examine the plaintiffs' witness, who is one of the
attesting witnesses of the alleged Will, the defendants will be badly
prejudiced.
Mr. Sabyasachi Choudhury, learned counsel representing the
plaintiffs, submits that the application filed by the defendants under
Order XVIII Rule 17 of the Code of Civil Procedure, 1908 is not
maintainable as under the said provisions witness cannot be recalled for
cross-examination. He submits that it is the dispute between the
defendants and their erstwhile advocate and it was well within the
knowledge of the defendants as well as erstwhile advocate that the
plaintiffs' witness will be examined and the learned Commissioner had
also informed the erstwhile advocate about the examination of the witness
of the plaintiffs on Commission but in spite of the same, neither the
defendants had appeared before the Commissioner nor the erstwhile
advocate, accordingly, the Commissioner had no other alternative but to
examine the witness. He further submits that the attesting witness of the
Will Mr. G. S. Gupta was a practicing advocate of this Court and he has
shifted from Kolkata to other State and it is not possible for the plaintiffs
to bring the said witness further for cross-examination.
Mr. Choudhury has relied upon a judgment reported in 2003 (3)
Mh. L.J. in the case of Balkrishna Shivappa Shetty -vs- Mahesh
Nenshi Bhakta and Ors and submitted that Order XVIII Rule 17 of the
Code of Civil Procedure, 1908 nowhere empowers the Court to allow the
party to cross-examine the witness by recalling such witness.
Heard learned counsel for the respective parties. Perused the
materials on record.
The erstwhile advocate has informed this Court on 31st August,
2023 that he has not received any instruction from the defendants, and,
accordingly, prayed for his discharge from this case as counsel for the
defendant nos. 1(a) and 1(b). In terms of the order dated 31st August,
2023, the erstwhile advocate has informed about the same by an e-mail to
the defendants and the said e-mail was produced before this Court on 3 rd
October, 2023. In spite of receipt of the said e-mail, neither the
defendants have appeared before this Court in person nor have engaged
any advocate and accordingly the erstwhile advocate has been discharged.
Now, the defendants have brought to the notice of this Court with
respect to several e-mails communicated between the erstwhile advocate
and the defendants. On 3rd October, 2024, the erstwhile advocate has only
informed about the communication between the defendants and the
learned advocate wherein he has informed that he will not appear on
behalf of the defendant nos. 1(a) and 1(b) but the learned erstwhile
advocate has not brought to the notice of this Court to the e-mails dated
22nd September, 2023, 27th September, 2023 and 29th September, 2023
wherein several correspondences were made between the erstwhile
advocate and the defendants.
Mr. Bose, learned counsel for the defendants, has also handed over
the report of the Learned Commissioner which was submitted before this
Court on 31st August, 2023 and after going through the said report of the
Learned Commissioner, it is found that the erstwhile advocate had never
appeared before the Commissioner though the Commissioner had
personally informed the dates of hearing through mail with regard to the
examination of the witness of the plaintiffs. It is also found that the
examination in chief of the plaintiffs' witness was held on 16 th August,
2023 and the learned Commissioner had adjourned the matter till 22nd
August, 2023 by clarifying that if none appears on behalf of the
defendants, examination of the plaintiffs' witness will continue in the
absence of the defendants. The Commissioner has further given an
opportunity to cross-examine the witness on 25th August, 2023 but on
that date also none appeared on behalf of the defendants and,
accordingly, as this Court has fixed the timeline for completion of evidence
on Commission and filing report by the Commissioner, the Commissioner
has filed the report on 31st August, 2023 by closing the cross-examination
of the plaintiffs' witness by the defendants.
This Court finds that the several communications have been made
between erstwhile advocate and the defendants either through e-mail or
WhatsApp messages but the defendants have never met the erstwhile
advocate in person or appeared before the Commissioner at the time of
examination of the witness by the plaintiff before the Commissioner.
Considering all the aspects, this Court finds that both i.e. the
erstwhile advocate and the defendants are at fault for non-appearance
before the Commissioner at the time of examination of the witness of the
plaintiffs on Commission. The Commissioner appointed by this Court was
bound by the order passed by this Court for filing the report. The
defendants have neither appeared before this Court or before the
commissioner or prayed for extension of time to cross-examine the
plaintiff's witness.
The plaintiffs have filed the suit for grant of probate and the
witness who has been examined before the Commissioner is the attesting
witness of the Will. The defendants are contesting the said suit by filing
caveat and affidavit in support of caveat. Considering the nature of the
suit, this Court is of the view that the defendants as well as the erstwhile
advocate are at fault for non-appearance before the learned Commissioner
at the time of examination of the plaintiffs' witness. If an opportunity is
not given to the defendants to cross-examine the plaintiffs' witness, the
defendants will suffer irreparable loss and injury. Accordingly, this Court
is of the view that one opportunity should be given to the defendants to
cross-examine the plaintiffs' witness, namely, G. S. Gupta.
As regard maintainability of the application, the defendants have
not mentioned any provision in the said application. Under Section 151 of
the Code of Civil Procedure, this Court has an inherent power to pass
appropriate order to make such order as may be necessary for the interest
of justice.
Considering the above, the defendant Nos. 1(a) and 1(b) are given
liberty to cross-examine the plaintiff's witness, namely, G.S. Gupta on the
following terms:-
i.- The remuneration of the Commissioner shall be paid by the
defendants alone for cross-examination of the plaintiffs' witness as fixed
by this Court by an order dated 26th July, 2023.
ii.- The defendants shall not pray for any adjournment before the
Commissioner on the dates fixed by the Commissioner.
iii.- The plaintiff shall produce the witness, namely, G. S. Gupta,
before the Commissioner for cross-examination by the defendant nos. 1(a)
and 1(b) as per the date fixed by the Commissioner.
The parties are directed to communicate this order to the
Commissioner. On receipt of this order the Commissioner shall fix date for
cross-examination of the witness, namely, G.S. Gupta. The Commissioner
is directed to complete the cross-examination of the witness, namely, G.S.
Gupta within four weeks from the date of receipt of this order.
In view of the above, GA/12/2024 is disposed of.
(KRISHNA RAO, J.)
RS
