Calcutta High Court
Sankar Lal Saha vs Ratna Sarkar And Ors on 8 January, 2024
Author: Sugato Majumdar
Bench: Sugato Majumdar
OD- 17
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
RVWO/50/2023
IA NO: GA/1/2023
SANKAR LAL SAHA
VS
RATNA SARKAR AND ORS.
BEFORE:
The Hon'ble JUSTICE SUGATO MAJUMDAR
Date: 8t h January, 2024
Appearance:
Mr. Siddhartha Banerjee, Adv.
Mr. Anupam Das Adhikari, Adv.
Mr. Deva Nand Misra, Adv.
Mr. Prashant Kumar Singh, Adv.
...for the Plaintiff
Mr. Meghojit Mukherjee, Adv.
Mr. Manas Dasgupta, Adv.
...for the Defendant no. 3
The Court: Review Application 50 of 2023 is filed for review of the Order
passed by this Court on 26t h September, 2023 whereby GA 5 of 2023 was dismissed.
GA 1 of 2023 is filed for condonation of delay in filing the review application and to
pass appropriate orders.
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GA 5 of 2023 was filed with a prayer to recall PW 1 for the purpose of
tendering documents which the Plaintiffs relied on, with a further prayer of grant of
leave for filing additional Judge's Brief of Documents.
This Court in terms of the impugned order dismissed GA 5 of 2023 on the
ground that the Plaintiffs went into hibernation for the last seventeen years and
suddenly came to understand or realize that some documents are there, not
mentioned in the application, which are to be filed. On that ground the application
was dismissed.
Delay, if any, is condoned.
Affidavit-in-Opposition is filed by the Defendants.
Mr. Banerjee, the Learned Counsel for the Plaintiff submitted that after PW 1
was examined, "some of the documents, which were not in the possession of the
Petitioner at the time of adducing evidence before the Learned Court below" are now
in the possession of the Petitioner. He invited attention of this Court to Para. 12 of
GA 5 of 2023 where certain documents were mentioned, namely, Judgment and
Order dated 20t h August, 2014 passed by the Learned 1 st Special Court, Survey
Building at Alipore in Special Case No. 2 of 2000, Special Case No. 3 of 2000, Special
Case No. 4 of 2000, Special Case No. 5 of 2000 and Special Case No. 7 of 2000.
These documents were not also incorporated in the Judge's Brief of Documents by
inadvertence. At the time of adducing evidence by the PW 1 in the year 2006 the said
Judgments were not passed. As such it is not that from last seventeen years the
Plaintiff failed to adduce those documents. He further submitted that adducing of
these documents is absolutely essential to do complete justice to the parties and to
prevent miscarriage of justice.
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Affidavit-in-Opposition admits that these documents were germane for
adjudication of dispute involved in the present suit. However, it is contended that
provision of Order XVIII Rule 17 cannot be used to fill up omission in an evidence
already led by a witness or filling a lacuna in a case. The Learned Counsel for the
Defendant further submitted that GA 5 of 2023 was dismissed on the ground of
inordinate delay, by this Court. Therefore, there is no reason to review the order
passed by this Court on 26.09.2023.
I have heard rival submissions.
This Court while passing the Order dated 26.09.2023 dismissing GA 5 of 2023
observed that there was an unjustifiable delay of seventeen years for filing the
recalling application. It was also observed by this Court that no documents were
specified in the application. However, Mr. Banerjee invited application by this Court
to Para. 12 of GA 5 of 2023 which was not highlighted by the arguing Counsel at the
time of hearing of that application. These documents were certified copies of the
judgments passed on 20.08.2014. At the time of examination of PW 1, obviously
those documents were not in existence.
It is settled rule that a witness cannot be recalled to fill up lacuna or omission
in evidence. It is also settled law that for proper adjudication of disputes, Court can
recall examination of a witness under Order XVIII Rule 17 of C.P.C. This can be done
suo motu by a Court without waiting for any formal application. The Affidavit-in-
Opposition contends that these documents were germane to adjudicate upon the
instant suit. This admission repels the suspicion that evidence might have been
adduced to cure lacuna of this case. The admission invites this Court to consider
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those documents, namely, the Judgment and Order dated 20.08.2014 passed by the
Special Court, Alipore, for the purpose of proper adjudication of the instant suit.
In view of discussions above, this Court is inclined to allow the review
application.
The Order passed by this Court dated 26.09.2023 in respect of GA 5 of 2023
stands modified to the extent that PW 1 shall be recalled and re-examined and
adduce relevant evidence and documents obtained by PW 1 subsequent to his
examination as a witness in this suit. However, it is made clear that PW 1 shall be
recalled for examination and cross-examination after completion of examination of
the present witness.
Accordingly the review application being RVWO No. 50 of 2023 along with GA
1 of 2023 stands disposed of.
The suit will appear in the list on 2n d February, 2024 under the heading of
"Witness Action" for examination of witnesses.
(SUGATO MAJUMDAR, J.)
