Sahidullah Munshi, J. - (1.) THIS revisional application is directed against order No. 76 dated 26th March, 2013, passed by the learned Judge, 2nd Bench, City Civil Court, Calcutta, in Misc. Case No. 684 of 2010. In short, it is the petitioner's case that he filed an application under Order 21 Rule 99 read with Section 151 of the Code of Civil Procedure before the learned Court below which was registered as Misc. Case No. 684 of 2010. In the said Misc. case the petitioner prayed for adjudication of his right, title and interest in the suit premises and to direct the opposite party Nos. 1 to 5 to restore possession to the petitioner in the said premises. It has been stated that the petitioner is a bona fide tenant in respect of one asbestos shed situated at previously 1/4, Nerode Behari Mullick Road, Kolkata -700006, presently 1/4/1, Nerode Behari Mullick Road, P.S. - Burtolla, Kolkata -700006 at a monthly rental of Rs. 80/ - (Rupees Eighty) only, since last 30 years. One Ram Lot Shaw inducted the petitioner as a tenant in respect of one asbestos shed with privy at premises No. 1/4, Nerode Behari Mullick Road, Kolkata -700006 now known as 1/4/1, Nerode Behari Mullick Road, Kolkata -700006. The petitioner was carrying on business in the said premises and has got trade licence issued by the Kolkata Municipal Corporation. He has also got challans and other documents in respect of the said business. After the death of Ram Lot Shaw his wife Smt. Sudama Debi had been issuing rent bill in respect of the said tenancy to the petitioner and after her death her sons Ramanand Shaw and Suraj Lal Shaw were issuing rent bill in respect of the said premises to the petitioner. Xerox copies of the rent bills have been annexed to this revisional application. It has been alleged that opposite party Nos. 1 to 5 with mala fide intention and in collusion with opposite party No. 6, one Ram Bodh Shaw, filed Title Suit No. 1363 of 2006 for recovery of khas possession and obtained a decree. The petitioner's contention is that in support of his application under Order 21 Rule 99 he filed his evidence on affidavit and with such evidence on affidavit he tendered few documents. It is his case that during examination -in -chief some of the said filed documents have been marked as exhibits whereas some have not been marked. He has filed a supplementary affidavit before this Court wherefrom it appears that he filed some 'tender' papers received by him from Executive Engineer, Tamluk Highway Division, P.W. (Roads) Department, Tamluk, Purba Medinipur received by him at premises No. 1/4/1, Nerode Behari Mullick Road, Kolkata -700006 and rent bill from 1st October, 1982 to 1st April, 2010 in respect of his tenancy at the premises in question and also a caveat dated 5th May, 2010. These documents were although, filed with the evidence on affidavit and were tendered for marking but the same were not marked as exhibits which is very much required for the purpose of proper adjudication of the Misc. case filed by the petitioner. Since those documents were not marked, the petitioner filed an application before the learned Court below to recall petitioner's witness No. 1 (PW 1) to lead further evidence on those documents which were marked as exhibits. The opposite parties opposed the said application by filing written objection. Learned advocate for the petitioner submits that the order impugned is bad -in -law and should be set aside and the petitioner should be allowed to lead further evidence upon recalling of the petitioner's witness No. 1 (PW 1). Learned advocate appearing for the opposite parties submits that by filing the petition the petitioner has actually tried to prolong the hearing of the Misc. case. The learned advocate further submits that the documents were never produced before the Court so the question of marking those as exhibits does not arise. He submits that the order impugned has been rightly passed and there is no impunity in the said order passed by the learned Court below. It is the petitioner's specific case that the documents were filed before the Court with the evidence on affidavit but inadvertently those documents were not marked by the Court and petitioner was not at fault. Therefore, if those documents were already on record, Court can always recall the witness for the purpose of marking those documents as exhibits. From a perusal of the evidence on affidavit it appears to me that the petitioner's contention that the documents are already on record, cannot be disbelieved. From a perusal of the order impugned it appears that as if the petitioner did not file the documents and/or he did not mention about the documents in his application for recalling which was not marked exhibits. The fact remains that the documents were filed and are on record. In support of his contention the learned advocate for the petitioner has relied on a decision of this Court reported in, (2010) 1 CHN 316 (Sahanaz Akhte Vs. Sk. Asfar Ali Hossain). In the said decision the Court held - "9. Subsequently, it was discovered that the rent receipt, which is a vital piece of evidence for establishing the relationship of landlord and tenant between the parties, were neither referred to in his evidence in chief nor produced along with the said affidavit. Accordingly, the plaintiff wanted to file a supplementary affidavit for disclosure of further evidence in chief, i.e., more precisely for the purpose of disclosing the said rent receipt. The plaintiff also filed an application for recall of this witness for the purpose of proving the said rent receipt. The learned Trial Judge rejected the petitioner's both the prayers under the impression that there is no scope for proving any document and/or adducing any further evidence either by filing a supplementary affidavit or by recalling his witness, after amendment of the Code of Civil Procedure. In fact a similar question came up for consideration before the Hon'ble Supreme Court in the case of Salem Advocate Bar Association, T.N. vs. Union of India, reported in : 2005(6) SCC 344, wherein it was held as follows: "Additional evidence 13. In Salem Advocate Bar Assn. Case it has been clarified that on deletion of Order 18 Rule 17A which provided for leading of additional evidence, the law existing before the introduction of the amendment i.e. 1.7.2002, would stand restored. The Rule was deleted by Amendment Act of 2002. Even before insertion of Order 18 Rule 17A the Court had in built power to permit parties to produce evidence not known to them earlier or which could not be produced in spite of due diligence. Order 18 Rule 17A did not create any new right but only clarified the position. Therefore, deletion of Order 18 Rule 17A does not disentitle production of evidence at a later stage. On a party satisfying the Court that after exercise of due diligence that evidence was not within his knowledge or could not be produced at the time the party was leading evidence, the Court may appear to be just." 10. In view of the aforesaid decision of the Hon'ble Supreme Court, this Court cannot support the impugned order. The reasons for which the said documents could not be produced by the petitioner has also been explained by the petitioner in his said application. 11. Under these circumstances, this Court does not find any reason either to disallow the petitioner's prayer for filing a supplementary affidavit for disclosure of further evidence in the suit or for refusing the petitioner's prayer for recall of this witness for the purpose of proving those rent receipts."
(2.) FROM the above it is clear that referring to a decision of Hon'ble Apex Court reported in : 2005 (6) SCC 344 this Court held that even deletion of Order 18 Rule 17A does not disentitle production of evidence at a later stage if the party can satisfy the Court that after exercise of due diligence that evidence was not within his knowledge or could not be produced at the time the party was leading the evidence. In the present case, the petitioner is not seeking leave of the Court to produce further document but he is relying on the documents on record. This decision supports the case of the petitioner and having regard to the principle laid down in the said decision I am of the view that the learned Court has erred in law in passing the impugned order. The learned advocate for the opposite party has relied upon a decision reported in : (2009) 4 SCC 410. The said decision is based on Order 18 Rule 17 of the Code of Civil Procedure but the facts and circumstances of the case are distinguishable from the present one. In that case the party had knowledge about the fact and he had knowledge about the documents but he did not produce it before the Court when the evidence on affidavit was prepared. But the case here is a different one. Therefore, the said case has no bearing upon the present case. In my view, the learned Court below ought not to have rejected the petitioner's application for recall of witness in order to lead further evidence as sought for. The learned Judge has acted illegally and with material irregularity in not allowing the petitioner's application for recalling of petitioner's witness No. 1 (PW 1) in order to lead further evidence and as a result thereof, the impugned order cannot be sustained and accordingly, the same is set aside. The petitioner's application for recalling of his witness No. 1 is allowed. The learned Court below is directed to take further evidence of the petitioner's witness No. 1 (PW 1) and to complete the process within a month from the date of communication of this order.
(3.) THE revisional application is allowed.;