IMPORTANT POINT
The court reaffirmed that recall of witnesses is not a right and cannot be used to introduce evidence not previously pleaded.

JUDGMENT :

Shampa Sarkar, J.

1. The order dated March 1, 2024, passed by the learned Civil Judge (Senior Division) 4th Court at Alipore, District 24 Parganas (south) in Title Suit No.2487 of 2016, is under challenge in this revisional application.

2. By the order impugned, the learned court rejected an application under Section 151 of the Code of Civil Procedure. After closure of evidence, the petitioner wanted to recall himself, in order to adduce further evidence and prove some documents. It was contended that the petitioner could lay his hand on those documents at a later stage. The learned court was of the view that the application could not be allowed. The recall was not permissible for the purpose of admitting documents in evidence, when the basis or the foundation of those documents were not available from the written statement. According to the learned court, what was not pleaded, could not be suddenly adduced in evidence. No party could be put at a disadvantage. It would not be proper for the Court to allow evidence beyond pleadings. In the absence of pleadings and also in the absence of any explanation as to why the said documents had neither been produced earlier nor mentioned in the written statement, the prayer for recall was rejected.

3. Ms. Shamolima Sarkar, learned Advocate for the petitioner submitted that the provisions of Section 151 of the Code of Civil Procedure could always be invoked for recall of a witness, even if, Order 18 Rule 17 of the Code of Civil Procedure had been deleted. Earlier, the Code had a specific provision under Order 18 Rule 17, for recall of witness at any stage. However, the deletion of the said provision would not take away the inherent power of the court to permit production of such evidence, which were relevant and necessary. Ends of justice demanded that the petitioner should be permitted to recall himself.

4. It was submitted that the learned trial judge ought to have exercised his discretion and invoked the inherent power, upon being satisfied that reopening of the evidence would be necessary in this case. Vital documents, could not be produced earlier in the suit. Referring to the cross-examination, Miss Sarkar submitted that the petitioner had already stated in his cross-examination on May 16, 2023, that he had papers in connection with his proprietorship business and transfer of the tenancy and he could produce such documents on the following day. Although, the documents could not be produced on the following day, those were subsequently traced out and an opportunity should have been given to the petitioner to recall himself as DW and tender those documents. The documents should be admitted in evidence and marked as exhibits as they were vital evidence. The suit had been filed against the petitioner for eviction and recovery of khas possession, treating the petitioner to be a trespasser. The documents would indicate that the petitioner was a tenant in respect of the property.

5. According to the learned Advocate, although the tenancy was in the name of Ganesh Store, it had been well settled by various judgments that the proprietor of a proprietorship business was the tenant. Even if, the rent receipts were issued in the name of the proprietorship business and the tenancy was in the name of the proprietorship business, the proprietor was the real tenant.

6. Learned Advocate submitted that the prayer was bona fide and the documents would assist the court to decide and render judgment on the issues involved. Already, applications under Section 7(1) and 7(2) of the West Bengal Premises Tenancy Act, 1997, had been filed by the petitioner. The learned trial Judge had framed an issue with regard to the relationship of landlord and tenant between the parties. In order to aid the court in deciding such issue properly and effectively, the documents were required to be admitted in evidence, upon recall of the petitioner. One of such documents, was the deed of partnership dated September 30, 1