- (1.)THE petitioner defendant has filed the present revisional application challenging Order No. 79 dated 20. 11. 87 and order dated 21. 12. 87 passed by the learned Munsif, 4th Court, sealdaha in T. S. No. 613/81. By earlier order dated 20. 11. 87, the Learned munsif rejected the petition filed by the defendant on 13. 11. 87 to file documents holding inter alia that the provisions laid down in Order 8 Rule 8a and Order 13 Rules 1 and 2 of the Code of Civil Procedure have not been properly complied with and by filing the documents at this stage will prejudice the interest of the plaintiff. By subsequent Order dated 21. 12. 87, the learned munsif allowed the prayer of the defendant relating to amendment of the written statement in part and also allowed the defendat to call the records of T. S. No. 640/81. Being aggrieved and dissatisfied with both the orders the petitioner defendant has come to this court.
(2.)HAVING heard Mr. Mukherjee for the petitioner and Mr. Roy Chowdhury for the opposite party, this court finds that this case has a background of its own. The present suit was filed by the original plaintiff for declaration that the registered sale deed dated 24. 3. 75 conveying the back portion of the premises no. 47, B. C. Chatterjee Road, Talpukur, P. S. Titagarh is void and inoperative. A second suit was filed by one Sm. Nomita Neogi, younger daughter of the said plaintiff in T. S. No 613/81 being T. S. No. 640/81. There were other litigations between the parties. A comprehensive suit seeking reliefs has however been brought by the petitioner defendant impleading all others. It appears that the matter came to this Hon'ble Court in C. O. 3478/86. N. K. Mitra J. disposed of the revisional application on 14. 1. 1987 by directing the learned Munsif to consider first whether all suits and the proceedings pending with him are ready for hearing. If the learned Munsif finds that the suits and proceedings are ready for hearing he will hear out the same analogously. The parties will, however, be at liberty to adduce evidence separately in each of the suits or proceedings; but the learned Munsif will dispose of the T. S. 613/81 first. If, however, the learned Munsif finds that apart from T. S. No. 613/81 the other suits and proceedings are not ready then the learned Munif will proceed with the T. S. No. 613/81 independently and shall dispose of me same without waiting for the other suits and proceeding. The learned Munsif in any case is to dispose of the aforesaid suit and proceeding within three months from the date of communication of the said order to the court below. It was made clear that the Hoh'ble Court did not make any observation regarding the merit of the suits and/or proceedings. It appears also that the court below by order no. 65 dated 25. 5. 87 took up the hearing of the T. S. No. 640/81 together with T. S. 613/81. It is submitted that since the suits were to be heard analogously the petitioner defendant filed certain provate documents in T. S. 640/81 and subsequently the said documents including one private letter dated 27. 7. 81 addressed by Sm. Nomita neogi to the "defendant from Durgapur by registered post was withdrawn on 14. 7. 86. It is submitted that an application was filed on 20. 5. 87 for withdrawal of T. S. No. 640/81 and, in fact, the suit has been withdrawn. In the meantime, the trial of T. S. No. 613/81 began and the deposition of the original plaintiff was recorded completing examination and cross-examination and after his demise the executor to his alleged will has been substituted as plaintiff and he has been pursuing the T. S. No. 613/81. At this stage the present petitioner defendant filed the private document since withdrawn from t. S. No. 640/81, in T. S. No. 613/81. By the order dated 20. 11. 87, the learned court below has rejected the same on the ground as indicated above. Sub-sequently, the defendant has sought to amend the written statement stating certain facts Including the statement as to the existence of the letter dated 27. 7. 81 purported to be written by Sm. Nomita Neogi to the defendant from durgapore by registered post. By subsequent order dated 21. 12. 87 the learned munsif has allowed the prayer for amendment of the written statement in part and in particular, refused to amend the written statement where it has been averred that there is existence of the letter dated 27. 7. 81 as afore-mentioned. Mr. Mukherjee appearing for the petitioner has submitted that under the background of the entire case where both T. S. No. 613/81 and T. S. No. 640/81 were sought to be tried analogously the defendant had the impression that the evidence to be adduced in T. S. No. 640/81 would be made available in respect of adjudication in T. S. No. 613/81 where an aleged case of fraud has been made out with regard to the deed of sale dated 24. 3. 75. According to him, section 14 of the Evidence Act is clear that the fraud would be found out by considering circumstantial evidence and all the relevant facts and the circumstances would be considered for an effective adjudication of the maters in dispute. He has laid much emphasis that since the defendant filed the documents in the suit brought by Sm. Nomita Neogi in T. S. No. 640/81, and as the said suit has been withdrawn, there is no bar and or impediment to allow him to file the said documents again in T. S. No. 613/81 and the learned Munsif has refused the prayer of the defendant in cryptic manner by referring to Order 8 Rule 8a and Order 13 Rule 1a of the Code of Civil Procedure. He has not applied his mind and the learned Munsif ought to have considered the entire background of the case and should have permitted the defendant to file the documents. With regard to the second order dated 21. 12. 87. Mr. Mukherjee has argued that the defendant has prayed for amendment of the written statement. The learned Munsif has allowed the prayer for written statement in part whereas even after allowing the written statement in part the defendant could file the documents including the letter dated 27. 4. 81 and only because by earlier order the prayer for filing the said document has been refused, the prayer for amendment of written statement ought not to have been rejected. The liberty granted by the learned court to adduce evidence does not preclude the defendant to file the document after withdrawal of the documents from T. S. no. 640/81 and such explanation should not be construed otherwise.
(3.)MR. Roy Chowdhury opposing the prayer of the petitioner in the revisional application, has very strongly argued that there are procedures laid down in the Code of Civil Procedure at which stage the documents have got to be filed and the trial of the suit would ensure. But in the instant case the evidence of the original plaintiff has been concluded. The evidence of the substituted plaintiff has also, been concluded. The defendant had withdrawn the document on 14. 7. 86 but has not taken any step diligently. Would it be permissible for the court to allow a party to file any document or to amend the pleading in any manner he thinks fit without justifying the cause in accordance with law. A proper explanation has to be appreciated by the court within the procedure as envisaged in the Code of Civil Procedure itself. He has further argued that the defendant which would make all the provisions of the Code of Civil Procedure nugatory. He has drawn the attention of the court to Order 8 Rule 8a of the Code of Civil Procedure which indicates inter alia :