- (1.) The judgment of the Court was as follows:- THE instant application under Article 227 of the Constitution of India is directed against the order dated 12.3.2007 and earlier orders passed by the learned Civil Judge (Senior Division), 9th Court at Alipore at 24-Parganas (South) in Title Suit No. 46 of 1999. It would appear that the learned trial Judge by passing the order dated 12.3.2007 was pleased to reject the application under Section 151 of Code of Civil Procedure filed by the present petitioners-defendants seeking direction upon the plaintiff to produce the original title deed in respect of the suit property, but the learned Court below upon hearing the learned lawyers for the parties concerned and also considering the totality of circumstances, felt no need to issue direction for production of the deed in question. Further on scrutiny of the report it could be detected that on the previous occasion the learned Court below by passing an order dated 17.1.2007 rejected the defendants prayer for production of title deed in respect of the suit property upon a finding that defendants should not be allowed to fill up the lacuna by taking recourse to Order 18 Rule 17 of C.P.C. and as such no need for issuing such direction was felt necessary by the Court below.
(2.) Being aggrieved by and dissatisfied with the orders referred to above, the petitioners-defendants have come up before this Court with the prayer for setting aside the orders indicated above. The only point for consideration is whether the impugned order dated 12.3.2007 and the earlier orders passed by the learned Court below do suffer from any impropriety or illegality or whether the said orders need any interference by this Court. Mr. Sukumar Bhattacharyya, learned Lawyer appearing for the petitioners while making submission drew this Court's attention to the contents of the order dated 12.3.2007 as also some previous orders including the order dated 17.1.2007 as well as some other important materials-on-record emphatically argued and submitted that learned Court below by passing the order dated 12.3.2007 and the previous orders committed mistake causing prejudice and miscarriage of justice to his clients inasmuch as the petitioners-defendants by filing an application under Order 18 Rule 17 CP.C. before the trial Court prayed for recalling P.W.1 with a view to putting some questions including the questions regarding custody of the original deed in respect of the suit premises as also its production before the Court. In support of his contention he has relied upon a decision in (Smt. Sephali Bera v. Sutushar Kanti Barik,1996 1 CalLJ 236) and strongly urged that the rejection of the defendants' prayer has caused sufficient prejudice to his clients by depriving the defendants of putting the questions noted down in the application filed before the learned Court below. In fine, it has been submitted on behalf of the petitioners-defendants that in a case like the present one, the petitioners' application for production of the deed and putting other questions ought to have been allowed.
(3.) On the other hand, Mr. Piyush Chaturvedi, learned Lawyer appearing for the opposite parties referring to the materials-on-record including the affidavit and counter affidavit emphatically contended that learned Court below while passing the impugned order dated 12.3.2007 and the order dated 17.1.2007 did not commit any mistake or illegality inasmuch as from the existing circumstances of the case, the trial Court felt it unnecessary to issue direction for production of the original title deed in respect of the suit premises. Not that only, there is no circumstances which could enable the trial Court to understand that the title deed is lying in custody of the plaintiffs-opposite parties. In support of his argument he has relied upon a ruling in (Y.B. Patil and Ors. v. Y. L. Patif, 1977 AIR(SC) 392) and urged that the learned Court below correctly passed the impugned orders by rejecting the petitioners- application with a view to avoiding the principles of res judicata as well as harassment to his clients. Having heard the learned Lawyers for the parties concerned and also after going through the materials-on-record it could be gathered that the petitioners-defendants by filing an application under Order 18 Rule 17 C.P.C. as also an application under Section 151 C.P.C. prayed for recalling the P.W.1 with a view to putting some questions to him. The questions are as follows:- 1. Relying on your answer that the Original Deed of the Land in respect of the Premises No. P-471, Lake Terrace Extension, P.S. Lake, Kolkata - 700 029, is not with you, please tell, where the same is lying? 2. When did you last saw the said Original Deed and at that time in whose custody the same was lying? 3. I put to you that the said Original Deed is in your custody and/or in the custody of your son, the plaintiff No.2 and you and your son are not producing the same intentionally, as you have mortgaged the same illegally.;