Subhasis Dasgupta, J. - (1.) The judgment and order dated 24th May, 2018 passed by the learned West Bengal Co-operative Tribunal, Kolkata in Appeal No. 28 of 2011 allowing appeal, and thereby remanding the case back to the learned Arbitrator upon setting aside the award with a direction to rehear the case is a subject of challenge in this revisional application under Article 227 of the Constitution.
(2.) Learned advocate for the petitioner submitted that learned Tribunal illegally exercised its authority in remanding the case back to the Arbitrator after setting aside the award with a direction to rehear the case afresh without understanding and/or addressing the merits of the appeal in the instant case, where award was lawfully passed by the Arbitrator. Learned advocate for the petitioner further submitted that while remanding the case back to the Arbitrator, the learned Tribunal had improperly exercised its authority in allowing petition, under Order 41 Rule 27 CPC, another petition filed by the op /appellant praying for examination by hand writing expert of a signature of petitioner forgetting the principles, to be strictly adhered to for allowing application under Order 41 Rule 27 CPC. It was sought to be established by the learned advocate for the petitioner that in spite of remaining in possession of the document, being disputed by the petitioner, the alleged document could not be furnished before the Arbitrator purposefully, and the same was produced before the learned Tribunal by opposite party simply to frustrate the award, lawfully recorded in this case by the Arbitrator. Learned advocate for the petitioner most arduously submitted that the op/appellant proposing to adduce additional evidence failed to establish the conditions, namely that notwithstanding the exercise of due diligence, such evidence was not within his knowledge, or could not, after the exercise of due diligence, be produced by him in the Trial Court, and referring the provisions of the law, as incorporated in Clause (aa) of Sub Rule (1) of Rule 27 Order 21, learned advocate for the petitioner endeavored to establish that learned Tribunal most illegally allowed the petition under Order 41 Rule 27 CPC without fulfillment of the conditions, and more conspicuously without addressing the point in the instant case as to whether op/appellant despite being in possession of the document, why the same could not be produced before the Arbitrator.
(3.) Learned advocate for the opposite party submitted that for the adjudication of the individual rights of the parties in the property in dispute, the learned Tribunal felt the necessity of presence of some additional evidence in order to arrive at just decision of this case. It was further submitted by the learned advocate for the opposite party that when the learned Tribunal specifically observed that the conveyance deed, dated 30.12.1987, the execution of which being disputed by the petitioner, would be very much essential to come to a right decision of this case, and also for effective and proper adjudication of the matter in controversy between the parties, such findings of the learned Tribunal ought not to be disturbed any more with the aid of authority available under Article 227 of the Constitution of India, as there was no error apparent in arriving at a such finding, for the deed under reference being denied to have been executed by the petitioner alleging putting her own signature. Alternatively it was proposed that it was such a document, if allowed to be proved in evidence, after the signature of the executent being examined with that of the admitted signature of petitioner by hand writing expert, there is fair chance of being non-suited by the petitioner, now suggesting sustainability of such award, as proposed by petitioner.;