JUDGMENT :

Ajay Kumar Gupta, J.

1. This is an application filed under Section 227 of the Constitution of India by the petitioner praying for setting aside an order dated 31st September, 2023 passed by the learned Additional District Judge (2nd Court), at Siliguri in OC (Probate) Suit No. 03 of 2012 (Sri Nikash Barua Vs. Sri Dipankar Barua) thereby an application under Order XVIII Rule 17 read with Section 151 of the CPC, 1908 has been rejected. It is the allegation that Ld. Court acted material irregularity while exercising its jurisdiction without appreciating the document i.e. Deed sought to be tendered and exhibited by the petitioner for effective adjudication of OC (Probate) Suit No. 03 of 2012 pending before the learned Additional District Judge (2nd Court), Siliguri.

2. It is the contention of the petitioner that the Misc. Judicial (LA) Case No. 16 of 2011 became registered and renumbered as OC (Probate) Suit No. 3 of 2012 after it became contentious. The petitioner is the objector of the said suit as the mother of both parties did not execute any Will on 05.05.1992. She died intestate leaving behind her legal heirs and successors. This fact has been admitted and disclosed by the legal heirs and successors of the testatrix while executing and registering a deed of conveyance dated 27.03.2002 and the said deed was registered in the office of Additional District Sub Registrar at Siliguri and recorded in Book No. 1, Volume No. 45 at pages 351 to 362, being no. I-1872 for the year 2002. In the said deed, it was declared by all the legal heirs and successors that Usha Rani Barua died intestate. So question of alleged will executed by the said testatrix, Usha Rani Barua does not arise at all. This fact is required to be brought before the learned Court below for effective and proper adjudication of the probate suit because the alleged will is not genuine and subsequently manufactured by the Opposite party. Accordingly, an application under Order XVIII Rule 17 read with Section 151 of the Civil Procedure Code has been filed by the present petitioner seeking for recall of the Petitioner/defendant as D.W.1 for the purpose of tendering and exhibiting the said deed of conveyance.

3. After hearing the said application, the learned Additional District Judge rejected the prayer. Hence, the instant revisional application as the Ld. Court did not considered the case of the Petitioner and out rightly rejected though opposite party has an option to cross examination of the witness. It will assist in rendering justice and to secure the end of justice, as such deed of conveyance is required to be produced. There is no chance to cause prejudice to the opposite party if the prayer of the petitioner would be allowed. He relied judgments in support his contention that such application could have allowed even at belated stage and permitted to produce such document at the time of examination of the witnesses and even if there is some delay, trial court can impose costs rather than to decline production of documents. These judgments are as follows:-

i. Levaku Pedda Reddamma & Ors. Vs. Gottumukkala Venkata Subbamma & Anr., 2022 (3) Indian Civil Cases 649 (S.C.).

ii. K.K. Velusamy Vs. N. Palanisamy (SC), 2011 (11) SCC 275.

iii. M/s. Max Industries and Ors. Vs. State of West Bengal & Ors. (Calcutta), 2022 (4) ICC 333.

4. He further submitted that the Hon’ble Supreme Court as well as High Court on several occasions allowed such prayer even in Section 151 CPC, which recognizes the discretionary inherent power of every Court for rendering justice in accordance with law and for securing the end of justice and prevent abuse of its process because the opposite party will get an opportunity to undertake cross-examination of the said witnesses to verify the veracity, authenticity and genuineness of the document.

5. On the other hand, learned advocate appearing on behalf of the opposite party raised objection of such prayer and further submitted that the petitioner ha