Prasenjit Mandal, J. - (1.) THIS application is at the instance of the plaintiffs and is directed against the order no.99 dated August 26, 2009 passed by the learned Civil Judge (Senior Division), Second Court, Barasat, District North 24 Parganas in Title Suit No.3 of 1999 thereby rejecting an application under Order 18 Rule 4 of the Code of Civil Procedure filed by the plaintiffs.
(2.) THE short fact is that the plaintiffs/petitioners herein instituted a Title Suit No.3 of 1999 for specific performance of contract, permanent injunction and other reliefs against the defendants/opposite parties herein in respect of the property as described in the schedule of the plaint. THE suit was at the stage of recording evidence and in that suit, the plaintiff no.1 deposed on behalf of all the plaintiff. Subsequently, the plaintiff no.3 tendered evidence under Order 18 Rule 4 of the Code of Civil Procedure for marking a copy of a document dated December 13, 1997 as exhibit as secondary evidence. THE prayer for adducing evidence by the plaintiff no.3 has been rejected by the impugned order. At the same time, the learned Trial Judge has also closed the evidence on behalf of the plaintiffs. Being aggrieved, this application has been preferred. Now, the question is whether the impugned order should be sustained. Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that the plaintiff no.1 deposed in the suit by way of tendering evidence under Order 18 Rule 4 of the Code of Civil Procedure and at that time, he deposed to the effect that he was deposing on behalf of all the plaintiffs. Subsequently, the plaintiffs thought that the plaintiff no.3 would also depose and he would prove one document dated December 13, 1997. That prayer was turned down by the impugned order. Now, no doubt as per amended provisions of the C.P.C. of the Act 22 of 2002 evidence may be tendered under Order 18 Rule 4 of the Code of Civil Procedure so as to minimize the Courts time in recording evidence. So, there is no bar to adduce evidence by way of Order 18 Rule 4 of the C.P.C. The cross-examination is to be done in the Court. The examination of a witness may also be done by appointment of a commissioner, but it has not been done. The learned Trial Judge rejected the evidence of the plaintiff no.3 simply on the ground that the plaintiff no.1 deposed on behalf of all the plaintiffs. If any of the plaintiff or any person on behalf of the plaintiff deposed for all the plaintiffs, there is no bar the other plaintiff to adduce evidence on behalf of the plaintiffs particularly with regard to a particular document which is within the special knowledge of that plaintiff. Here, in the instant case, the plaintiff no.3 wanted to adduce evidence by way of Order 18 Rule 4 of the C.P.C. along with the prayer to mark a carbon copy of a writing dated December 13, 1997 which is nothing but a receipt granted by the opposite party at the time of making payment by the plaintiffs. So, the original is lying with the opposite party and the carbon copy of the same is lying with the possession of the plaintiffs and the plaintiffs have wanted to mark the said document as exhibit for which the plaintiffs have wanted to tender evidence under Order 18 Rule 4 of the Code of Civil Procedure.
(3.) THIS being the position, when the original is lying with the opposite party side as per claim of the petitioners, the carbon copy of the same may well be tendered as evidence under the provisions of Section 65(a) of the Indian Evidence Act, 1872. The fact that the carbon copy is admissible as evidence will be evident from the decision of Nawab Singh Vs. Inderjit Kaur reported in AIR 1999 SC 1668. The Honble Apex Court has held that rejection of an application without affording tenant an opportunity of adducing secondary evidence was not justified. This decision has also been followed in the case of Anupama Chowdhury and ors. Vs. year Ali Mallick and Anr. reported in 2006(1) CHN 151 and the decision of Ratan Das Vs. Goutam Das reported in 2010 (1) CLJ Cal 902.;