PRASENJIT MANDAL, J. - (1.) THIS application is at the instance of the plaintiff and is directed against the order dated May 5, 2011 passed by the learned Additional Civil Judge (Junior Division), Sealdah in Ejectment Suit No.51 of 2004 thereby expunging certain portion of the evidence adduced by the P.W.2 on behalf of the plaintiff under Order 18 Rule 4 of the C.P.C.
(2.) THE plaintiff / petitioner herein instituted an ejectment suit against the defendant / opposite party on the ground of reasonable requirement in respect of the premises in suit as described in the plaint. The defendant is contesting the said suit by filing a written statement denying the material allegations raised in the plaint. The suit was at the stage of peremptory hearing. The P.W.1, that is, the plaintiff had been examination-in-chief, cross and discharged. Then the P.W.2, son of the plaintiff tendered evidence under Order 18 Rule 4 of the C.P.C. stating, inter alia, that he is a diploma holder in Optomatric Science and he requires many rooms for his chamber, anti chamber, one room for sitting patients, one room for optical treatment, another room for keeping medical equipment, medicines and another room for accommodating his staff, etc. An objection was raised against such type of evidence by way of an affidavit contending, inter alia, by the defendant that such type of evidence was beyond the pleadings. Upon hearing both the sides, the learned Trial Judge passed an order of expunction of such portion of the evidence which was, according to him, beyond the pleadings, by the impugned order. Being aggrieved, the plaintiff has filed this application. Now, the question is whether the impugned order should be sustained. Upon hearing the learned Counsel for the parties and on perusal of the materials on record, I am of the view that for the reasons stated below the impugned order cannot be sustained. While deposing, the plaintiff as P.W.1 described the necessity of two rooms for his son, P.W.2, but, while the P.W.2 tendered evidence under Order 18 Rule 4 of the C.P.C., he stated requirement of so much rooms as might be possible in view of the contention that he is a diploma holder in Optomatric science. Such evidence, prima facie, appears to be beyond the plaint case. In a suit of this nature, the plaintiff is to adduce evidence in support of the plaint case and he is required to produce the corroborative evidence in support of the plaint case. In the instant case, the P.W.2 was not a party to the suit but he tendered evidence which could be described as nothing but corroborative evidence of the P.W.1. The P.W.2 did not depose in his individual capacity as a plaintiff but as a corroborative witness of the P.W.1. So, the evidence of the P.W.2 is expected to be confined within the plaint case. But, in the instant case, the defendant has raised objection over the evidence tendered under Order 18 Rule 4 of the C.P.C. contending that certain portion of the evidence of the P.W.2 in his examination-in-chief by way of an affidavit, was beyond the pleading of the plaintiff. No doubt, if any portion of the evidence appears to be beyond the pleading, an order of expunction may be passed. But, it shall now be considered at what stage, such an order can be passed. As per C.P.C. Amendment Act of 2002 (Act No.22 of 2002), the evidence-in-chief by way of an affidavit under Order 18 Rule 4 of the C.P.C. has been provided to save the Court's valuable time. For the said purpose, both parties to the suit shall file evidence�in-chief save the documents to be proved in Court, by way of affidavits under Order 18 Rule 4 of the C.P.C.. Even the other witnesses of the respective parties of the suit may tender evidence either by way of affidavits under Order 18 Rule 4 of the C.P.C. or by oral deposition before the Court. Such a recourse has been adopted so that the Court's valuable time may be saved. If a witness to the party, is examined in Court by the Presiding Officer himself, at the time of recording statement in examination-in-chief, the learned Trial Judge has the opportunity to check the examination-in-chief in respect of irrelevant matters, facts beyond the pleadings or any disparaging remarks uttered by the witness. But, if the evidence of a person other than the parties to the suit is tendered by way of an affidavit under Order 18 Rule 4 of the C.P.C., there is no scope of checking the examination-in-chief at once. Taking an opportunity of such situation, if a witness other than the parties to the suit, tenders evidence under Order 18 Rule 4 of the C.P.C. by incorporating statements beyond the pleadings, irrelevant matters or disparaging remarks, when an objection is raised on behalf of the adversary, the Court is at liberty to take appropriate steps thereon. But, while a witness is being further examined-in-chief or being cross-examined and the Court is required to analyse the evidence to decide whether it contains matters which are beyond the pleadings, irrelevant matters, disparaging remarks, etc., the scheme for which the provisions of Order 18 Rule 4 of the C.P.C. have been framed by the Act No.22 of 2002, will be frustrated. The Court will not be able to proceed with the matter speedily for which the said provisions have been enacted by the Parliament. Of course, if the statement under Order 18 Rule 4 of the C.P.C. is totally beyond the pleadings, irrelevant matter or contains disparaging remarks, the learned Trial Judge is at liberty to pass an order of expunction of the same with liberty to file a fresh examination-in-chief under Order 18 Rule 4 of the C.P.C.. But, if the Court is to analyse the evidence on record thoroughly to find out what portion of the evidence-in-chief is to be expunged, the purpose of amendment of the C.P.C. by incorporation of Order 18 Rule 4 of the C.P.C. would be totally frustrated as indicated above.
(3.) MR. Sunil Kumar Brahmachari, learned Advocate appearing for the petitioner, has referred to the decision of Amiya Kumar Majumdar v. Gouri Prosad Ghosh reported in 1989(1) CLJ 261 and another decision of Mustaque Ahmed Khan & ors. v. Mahammad Nasim & ors. reported in 2011(1) CLJ(Cal) 455 passed by this Bench and thus, he submits that expunction of certain portion of the evidence is not permissible at the stage of recording evidence. Such evidence may be considered at the time of writing judgment. Relying on these two decisions, Mr. Brahmachari has submitted that the expunction of the evidence by the impugned order was not justified at that stage and so, the impugned order should be set aside. On the other hand, Mr. Bidyut Kumar Banerjee, learned Senior Advocate appearing for the opposite party, has referred to the decision of Ameer Trading Corporation Ltd. v. Shapoorji Data Processing Ltd. reported in AIR 2004 SC 355 particularly paragraph no.32 and of T.K. Gangan Menon v. M/s. Bright Credit & Real Estate (P) Ltd. & ors. reported in AIR 2007 Kerala 293 and thus, he submits that the evidence beyond the pleadings should not be accepted and the learned Trial Judge has rightly rejected the portion of the evidence adduced by the P.W.2 beyond the pleadings. With due respect to Mr. Banerjee, I am of the view that in fact, the decision of Ameer Trading Corporation Ltd. (supra) supports the petitioner. According to paragraph no.32 of the said decision, if any evidence is recorded beyond pleadings of the parties and it is detected, the opposite party is at liberty to raise such an objection. At the same time, he may be permitted to cross-examine the witness on the points beyond the pleadings. He may also feel that there is no necessity of cross-examining a witness on the points beyond the pleadings. But, it is up to the opposite party in what step the opposite party shall proceed with the matter. But, the decision does not lay down expunction of the evidence already tendered under Order 18 Rule 4 of the C.P.C. So, I am of the view that this decision will not be helpful to the client of Mr. Banerjee.;