Back
2015 Supreme(Cal) 303
IN THE HIGH COURT OF CALCUTTA
ARIJIT BANERJEE, J.
GSP Projects Private Limited – Petitioner
Versus
Rockfield Paj Replications Private Limited – Opposite Party
C.O. No. 904 of 2015
Decided On : 21.7.2015
For the Petitioner:Mr. Aniruddha Chatterjee, Mr. Srijib Chakraborty and Mr. Abhiraj Tarafdar, Advocates.
For the Opposite Party:Mr. Moloy Kumar Ghosh, Senior Advocate, Mr. Loknath Chatterjee, Mr. P. Kr. Tripathi, Advocates.
The power to allow a party to adduce further evidence is to be exercised judiciously depending on the facts and circumstances of each case.
Headnote:
EVIDENCE ACT, 1872 - SECTION 65 - SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT - ADMISSIBILITY OF UNREGISTERED DOCUMENT - COURT FEES AND PENALTY PAID - DOCUMENT ADMISSIBLE.
Fact of the Case:
Plaintiff filed a suit for specific performance of an agreement for sale of property and permanent injunction. The defendant filed a written statement and the suit was ready for arguments. The defendant then filed an application for leave to adduce further evidence, which was allowed by the trial court. The plaintiff challenged the order of the trial court.
Finding of the Court:
The court held that the trial court did not consider whether the further evidence was relevant to the issues involved in the suit and whether there was sufficient cause for non-production of such evidence earlier. The court also held that the conduct of the defendant was not satisfactory and bona fide.
Issues: Whether the trial court erred in allowing the defendant's application for leave to adduce further evidence.
Ratio Decidendi: The court held that the power to allow a party to adduce further evidence is to be exercised judiciously depending on the facts and circumstances of each case. If the court is satisfied that there was a bona fide omission on the part of the party concerned to adduce material evidence earlier or if the court is satisfied that the party concerned was not in a position to adduce such evidence earlier, the court would be justified in permitting the party to adduce such evidence at the subsequent stage. However, if the court is of the opinion that a party to the suit is seeking to adduce further evidence at a belated stage with a view to prolonging the trial of the suit and delaying the disposal of the suit, it would be a sound exercise of discretion not to allow such party to adduce further evidence.
Final Decision: The court set aside the order of the trial court and remanded the matter back to the trial judge for consideration afresh.
ARIJIT BANERJEE, J.
1. In the present revisional application the petitioner challenges the orders dated 22nd January, 2015 and 24th February, 2015 passed by the Ld. Civil Judge (Senior Division), 2nd Court at Barasat in Title Suit No. 67 of 2008. By the order dated 22nd January, 2015, the Ld. Judge allowed the application of the principal defendant/opposite party for leave to adduce further evidence. By the order dated 24th February, 2015 the Ld. Judge took on record the written memorandum of evidence filed on its behalf by one Arun Kumar Agarwal.
2. The undisputed facts of the case as would appear from the documents on record are as follows.
3. On 19th March, 2008 the petitioner as the plaintiff filed Title Suit No. 67 of 2008 against the opposite party before the Ld. Civil Judge (Senior Division), 2nd Court at Barasat praying for specific performance of an agreement for sale of a property and permanent injunction.
4. The opposite party/defendant filed its written statement in the suit, although belatedly after lapse of ten months.
5. In the suit, the petitioner took out an application for temporary injunction which was allowed by the Ld. Court below and the order of injunction was made absolute on 25th July, 2008. The opposite party’s application for vacating of the order of interim injunction was dismissed by the Ld. Judge. Being aggrieved, the opposite party preferred an appeal in this court being FMA No. 1473 of 2008.
6. On the basis of the allegation that in spite of subsistence of the order of temporary injunction, the opposite party was changing the nature and character of the suit property, the petitioner applied before the Ld. Trial Court for mandatory injunction. The said application was dismissed by the Ld. Court by an order dated 21st April, 2009 against which the petitioner preferred an appeal in this court being FMAT No. 59 of 2010.
7. The said two appeals being FMA No. 1473 of 2008 and FMAT No. 59 of 2010 were disposed of by this court by an order dated 14th January, 2011 whereby the opposite party was restrained from transferring, alienating or encumbering or from changing the nature and character of the suit property till disposal of the suit on the condition that the petitioner shall deposit the entire balance consideration of Rs. 4,80,00,000/- (Rs. 4.8 crores) with the Ld. Trial Judge within one month. The Ld. Trial Judge was requested to dispose of the suit as expeditiously as possible and preferably within four months from the date of communication of the said order without granting unnecessary adjournments to either of the parties.
8. Being aggrieved by the said order dated 14th January, 2011, the petitioner preferred a special leave petition before the Hon’ble Supreme Court of India which was disposed of by an order dated 23rd February, 2011 by extending the time for the petitioner to deposit the said sum of Rs. 4.80 crores and by affirming this Court’s order dated 14th January, 2011.
9. The petitioner deposited the total balance consideration of Rs. 4.80 crores in the Trial Court on 28th February, 2011.
10. The plaintiff’s evidence in chief was filed in the Trial Court on 15th March, 2011. The plaintiff’s witness was examined and cross-examined and was discharged on 19th August, 2011. The defendant’s witness was also examined and cross-examined and was discharged on 9th November, 2011.
11. It would appear from the order dated 9th November, 2011 recorded by the Trial Court that the defendant submitted that it would not adduce any further evidence. Accordingly, the defendant’s evidence was closed. On that date, the petitioner filed an application under Order 19 Rule 2 of the Code of Civil Procedure for production of one Arun Kumar Agarwal who had made discovery of documents on oath on behalf of the defendant, to face cross-examination by the plaintiff. The said application was however rejected by the Ld. Trial Court by the order dated 11th January, 2012.
12. During the course of examination of t
