Item No.28

28.01.2026 Court. No. 6 GB C.O. 2656 of 2025 Sri Ranjan Dey Vs.

Sri Santanu Dey & Ors. Mr. Siva Prasad Ghose, Mrs. Neha Roy, Mr. Sijit Sahoo … for the Petitioner. Mr. Indrajit Biswas, Mr. Rajib Ganguly, Mr. Rakesh Kumar Pandey … for the Opposite Parties.

1. The petitioner is aggrieved by an order dated July 7, 2025, passed by the learned Civil Judge (Junior Division), 2^nd Court at Barrackpore in Title Suit No.2 of 2012.

2. According to the petitioner, who is the defendant no.1 in the suit, the said order is erroneous as the plaintiff was permitted to fill up a lacuna in the plaint case as also in the evidence. It is submitted by Mr. Ghose, learned advocate for the petitioner that the existence of the document was neither pleaded nor mentioned in the plaint and in the evidence in chief. Suddenly, after nine years from the date of coming into possession of the said document, an application was filed to recall the P.W.1, so that the document could be adduced in evidence. Mr. Ghose submits that the cross-examination of the P.W.1 would clearly indicate that he accepted the construction was authorized and also stated that there was no encroachment.

3. Reliance is placed by Mr. Ghosh on the decision of this Hon’ble Court in the matter of Shyamapada Neogy and Others versus Asoke Kr. Biswas and Others reported in 71 CWN 747, in support of the contention that only the court has the discretion to invoke the power of recall under Order 18 Rule 17 of the Code of Civil Procedure, even at the instance of a party, when unforeseen situations had developed, provided that, it did not cause any surprise or prejudice to the other party. The decision of the Hon’ble Apex Court in the matter of Shubhkaran Singh versus Abhayraj Singh and Others reported in 2025 (3) Indian Civil Cases 471 (S.C) is relied upon in support of the contention that the power of recall vests only on the court under Order 18 Rule 17 of the Code of Civil Procedure. A witness cannot be recalled at the instance of the party for the purpose of examining, cross-examining or re-examining. Reliance is also placed on the decision of this Court in the matter of Ajit Kumar Das versus Dilip Kumar Ghosh and Another reported in AIR 2024 Calcutta 194 on a similar proposition that recall of witness cannot be allowed as a matter of course and definitely not at a belated stage when the opportunity available had been missed out.

4. Learned advocate for the opposite parties submits that the document is necessary for proper adjudication of the dispute between the parties. Although belated, the stop work notice which was issued by the municipality is relevant. It is further submitted that the plaint case is built on the basis that the construction is not only unauthorized, but also encroached a portion of the property enjoyed by the opposite party/plaintiff.

5. The first contention of Mr. Ghose that the foundation of the said document was not laid in the plaint, is not accepted by the court. The plaint case runs on the basis that the plaintiff had reason to believe that the construction of the defendant no. 1 was without any building plan and without leaving any statutory side space. Encroachment of the land of the plaintiff was also found. In support of such contention, the plaintiff wants to bring on record a stop work notice issued by the municipality. Thus, this document is not something which will take the defendant no.1 by surprise. The defendant no.1 has continuously defended the suit with the positive case that the construction was as per the building plan sanctioned by the municipality and in accordance with law. The document is a notice, which was issued to the petitioner/defendant no.1.

6. Paragraph 20 of the plaint clearly indicates that the repeated visits were made by the plaintiff to the municipality. Objections were raised before the municipality with regard to the alleged illegal construction. It is, thus, the specific case of the plaintiff that the municipality, which is th