Expunction of evidence tendered under Order 18 Rule 4 CPC at the stage of tendering evidence is not permissible. It should be considered at the time of argument and subsequently at the time of passing judgment.

PRASENJIT MANDAL, J.

1. THIS application is directed against the Order No. dated February 5, 2010 passed by the learned Judge, Small Causes Court. Sealdah in Title Suit No. 13 of 2006.

2. THE short fact is that the plaintiffs/petitioners herein instituted a suit being the Title Suit No.13 of 2006 before the learned Judge, Small Causes Court, Sealdah for partition, declaration, permanent injunction and, other reliefs. THE opposite party No.s 2 and 3 are contesting the said suit by filing a written statement and the opposite party No.3 filed a counter-claim in the said suit. THE plaintiffs filed a written statement to the counter-claim filed by the opposite party No. 3. THE evidence on behalf of both the parties in the plaint case had been closed. At the stage of examination of the D.W.s in the counter-claim, the plaintiffs/petitioners herein tendered evidence-in-chief by way of an affidavit as D.W.I. Two letters of the advocates had also been filed for marking the same as exhibit. THE opposite parties raised objection against the evidence-in-chief and they prayed for striking out the evidence of the D.W.I in the counter-claim. That application was allowed in part by the inpugned order. Being aggrieved, this application has been preferred.

3. NOW, the question is whether the impugned order should be sustained.

4. UPON hearing the learned counsel for the parties and on going through the materials on record, I find that the matter involved in this revisional application is over the expunge of certain portions of the evidence-in-chief tendered by the plaintiffs as D.W.I in the counter-claim filed by the defendant No.3/opposite party No.3 herein. The leaned Trial Judge allowed that application in part. While discussing the grounds for rejection in part, the learned Trial Judge had observed that as per application for expunction the paragraph Nos. 5, 6, 7 and 8 of the D.W.I in the counter-claim were contrary to the defence stand taken by the plaintiffs and those paragraphs were beyond the pleadings of the parties. Ultimately, he concluded that paragraph Nos. 2, 3, 4, 6 and partly 8 of the affidavit-in-chief should be expunged.

5. MR. R.N. Dutta, learned Advocate for the petitioner has referred to an earlier decision of Mustaque Ahmed Khan and Ors. v. Mohammad Nasim and Ors. reported in (2011)1 CLJ(Cal) 455 wherein this Bench has observed that the prayer for expunction of the evidence at the stage of adducing evidence is not permissible and the application for expunction shall be considered at the time of argument and subsequently at the time of passing Judgment.

6. MR. Dutta has also referred to the decision of Sanat Kumar Ganguly v. Sandhya Dutta Chowdhury and Ors. reported in 2008(1) CLJ (Cal) 450 which lays down the decision of Salem Advocate Bar Association v. Union of India reported in (2005)6 SCC 344 wherein paragraph no.13 lays down the provision for leading evidence which is quoted below:-

"In Salem Advocate Bar Association case it has been clarified that on deletion of Order 18 Rule 17-A which provided for leading of additional evidence, the law existing before the introduction of the amendment i.e. 1.7.2002, would stand restored. The rule was deleted by Amendment Act of 2002. Even before insertion of Order 18 Rule 17-A, the Court had inbuilt power to permit parties to produce evidence not known to them earlier or which could not be produced in spite of due diligence. Order 18 Rule 17-A did not create any new right but only clarified the position. Therefore, deletion of Order 18 Rule 17-A does not disentitle production of evidence at a later stage. On a party satisfying the Court that after exercise of due diligence that evidence was not within his knowledge or could not be produced at the time the party was leading evidence, the Court may permit leading of such evidence at a later stage on such terms as may appear to be just."

7. ON the other hand, Mr. Arindam Chatterjee, learned advocate for the opposite party has re