ASIM KUMAR MONDAL,J. - (1.) THIS is an application under Article 227 of the Constituion of India challenging the order being No. 98 dated April 17th, 2012 passed by learned Civil judge (Junior Division), Siliguri in Title Suit No. 172 of 2012.
(2.) THE petitioner as plaintiff filed the suit against the defendant opposite party praying for declaration of title and permanent injunction. The petitioner and opposite party are brothers. Petitioner, at all material times, was carrying out the family business established by his father in the name and style of M/s. Jodhraj Beharilal at Siliguri. The family business of the parties was carried on as a HUF of which the father of the petitioner and the opposite party herein was the karta. The father of the parties died in 1976. The opposite party as an elder brother in the family became karta of the HUF. The dispute and grievances cropped up between the parties in relation to the liabilities of the Hindu Undivided Family business. A family settlement was agreed upon and reduced to writing and in terms of the said settlement the opposite party agreed to execute all documents for confirming the exclusive right, title and interest of the petitioner over the disputed properties. In the suit the defendant / opposite party field the written statement. The petitioner as plaintiff has already given evidence in the suit by filing an affidavit of evidence in chief. The petitioner has also cross -examined.
(3.) ON or about December 8th, 2009 the defendant purported to file an examination in chief with some documents through his advocates. On February 24, 2010 the defendant was put to the witness box for examination. On being questioned on the purported affidavit of evidence claimed to have been filed on his behalf the defendant deposed before the learned Court to the effect that " I have no knowledge about the contents of my said affidavit in chief." On February 24th, 2010 the learned Court below passed an order to the effect that the affidavit in chief of the defendant's first witness was not accepted considering his deposition on dock recorded on that day. The document sought to be filed in support of the purported evidence were directed to be returned to the sherastadar for keeping the same in safe custody of the Court. On June 3rd, 2010 the defendant's first witness filed the same and identical examination in chief by way of an affidavit on the earlier occasion. The learned Court did not consider the previous order and the fact that the said purported affidavit of evidence had been once rejected on the admission of the witness on the part of the defendant that he had no knowledge of the contents thereof. The examination of defendant's first witness was accepted by the learned Court. The plaintiff vehemently objected to the filing of the second affidavit -in -chief as the defendants had already filed affidavit -in -chief earlier. On December 8th, 2009 which was already taken on record and the defendants had even deposed before the learned court on the basis of said affidavit filed on December 8th, 2009. The said objections of the plaintiff were filed before learned Court below by way of formal applications under Section 151 of the Code of Civil Procedure. The learned Trial court by order No. 98 dated April 17th, 2010 was pleased to take up the petition and after hearing both sides was pleased to dismiss the said application.;