- (1.) This revisional application is directed against an order no. 142 dated July 24, 2006 passed by the Civil Judge (Junior Division) 2nd Additional Court Diamond Harbour.
(2.) The opposite party as plaintiff instituted Title Suit no. 228 of 1980 which was renumbered as Title Suit no. 76 of 2004 praying for a decree for declaration that the kobala, in dispute, is not a sale but loan in substance preliminary decree of accounts as consequential relief. The said suit is contested by the petitioner, being the defendant no. 1 therein with the specific defence that after the execution of the deed the petitioner was put into possession and the transaction leading to the execution of the said deed was not loan in substance but a divestation of right, title and interest by way of a sale. It is further contended that the petitioner is not in physical possession of the said plot in question. By way of an application the opposite party no. 1 amended the plaint by incorporating the averment that the said transaction carries an interest @ 18% p.a. The same was eventually allowed. Ultimately the opposite party no. 1 adduced evidence on his behalf and was cross examined. The witness of the petitioner was also examined and was also cross examined by the opposite party no. 1. The suit was posted for argument and in fact the same was completed.
(3.) Since a specific point was taken by the petitioner in the argument that the opposite party no. 1 has not laid any evidence on the point of the rate of interest, at such stage the opposite party no. 1 filed an additional affidavit-in-chief with a prayer to accept the same. In the said additional affidavit-in-chief the opposite party no. 1 sought to contend that he took the loan which carries an interest @ 18% p.a. The petitioner vehemently opposed the said application. The trial court allowed the said application on the ground that the opposite party no. 1 shall get a fair chance to prove his own case and there is no possibility of being prejudiced on the part of the petitioner. Assailing the said order the defendant no. 1 has come up before this court and it is specifically contended that the order impugned cannot be sustained for the reason that there is no provision for filing the additional affidavit-in-chief after the closure of the evidence. Secondly there is no reason given by the trial court for acceptance of such additional affidavit-in-chief.;