PRASENJIT MANDAL,J - (1.) THIS application is at the instance of the defendant and is directed against the Order No.57 dated April 7, 2nd 2010 passed by the learned Civil Judge (Junior Division), Court, Burdwan in Title Suit No.64 of 2007 thereby forbidding the defendant from adducing evidence and expunging the evidence already recorded.
(2.) IN a suit for declaration of title and permanent injunction in respect of the suit property as described in the schedule of the plaint filed by the plaintiff / opposite party herein, the defendant / petitioner herein filed a written statement contending, inter alia, that the suit is barred for non-joinder and misjoinder of parties. The defendant / petitioner has also contended that neither the plaintiff nor his father ever possessed the suit property. The defendant had the possible right, title, interest and possession over the suit property and she being in need of money had transferred some portion of the suit property to different persons and those transferees had mutated their names in the settlement record and also with the Municipality. They had also raised pucca construction thereon. So, the plaintiff has wrongfully impleaded the defendant in the present suit and thus, the suit suffers from non-joinder and misjoinder of the necessary parties. The plaintiff has no right, title, interest and possession over the suit property. On the basis of such averment in the written statement, the plaintiff filed an application for interrogatories to know the names and addresses of the transferees in whose favour the deeds had been executed and the respective dates of registration of those deeds. In consequences, the defendant intimated the Court that she could not recollect the memory with regard to the names, addresses of the transferees and the dates of registration, that is, total non-cooperation in respect of her averment. Under the circumstances, by an earlier order dated August 4, 2008, the learned Trial Judge allowed the application under Order 11 Rule 21 of the C.P.C. on contest and the defence taken by the defendant against the plaintiff on the point of consideration was struck out.
(3.) AT the time of adducing evidence on behalf of the defendant / petitioner, this fact was not brought to the notice of the learned Court earlier and as such, when the matter was brought to the notice of the learned Court, by the impugned order, the learned Trial Judge has recorded that the evidence led by the defendant till date stands expunged and the next date has been fixed for hearing argument. Being aggrieved by the impugned order, this application has been preferred. Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that the above facts are not in dispute. By the order dated August 4, 2008, the defence by the defendant against the plaintiff on the point for consideration had been struck down for non-cooperation. The said order was not challenged before any forum and as such, the said order had attained finality. Thereafter, when the defendant started adducing evidence and some documents had been marked exhibit, the attention of the learned Trial Judge was drawn to the earlier order dated August 4, 2008.;