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Judgment
Sabyasachi Bhattacharyya, J
The present challenge is directed against an order whereby the trial court reviewed its previous order, precluding the opposite parties from tendering a document, being a deed of declaration, in evidence. Such prior order refusing to do so was passed on the basis of a still previous order being Order No. 50 dated August 27, 2018.
By virtue of the said order dated August 27, 2018, an application under Order XVIII Rule 17 of the Code of Civil Procedure, filed by the opposite parties, was partially allowed, thereby permitting the opposite parties to recall plaintiffs' witness no. 1 for tendering and cross-examining the witness only regarding a letter dated June 16, 2014 issued by the Kolkata Municipal Corporation, pursuant to an information sought by the opposite parties under the Right to Information Act. However, the other limb of the prayer of the opposite parties at that juncture, being permission to recall the plaintiffs' witness no. 1 also on a deed of declaration, was deemed to be refused, since the same was not allowed.
The relevant order dated August 27, 2018 recorded that the plaintiffs' witness no. 1 was thereby recalled. It was further observed in the said order that it was to be noted that the recall of plaintiffs' witness no. 1 should be confined within tendering and cross-examining the witness only regarding the letter dated June 16, 2014 issued by the Kolkata Municipal Corporation, as mentioned in the petition of the plaintiffs.
As such, there was, evidently, refusal of the portion of the prayer of the opposite parties whereby the deed of declaration was also sought to be tendered.
Subsequently, in consonance with the order dated August 27, 2018, when the opposite parties again sought to tender the same deed of declaration in evidence, the same was refused by the trial court.
It is relevant to mention that the present petitioners had taken out a revisional application bearing C.O. 337 of 2019 only against a portion of the order dated August 27, 2018, whereby the prayer of the opposite parties for tendering and cross-examining the plaintiffs' witness no. 1 regarding the letter dated June 16, 2014 was allowed. This court, by its order dated January 29, 2019, had dismissed the said revisional application, thereby adjudicating only upon the legality of the portion of the impugned order therein, allowing the letter to be exhibited. It was specifically recorded in the order dated January 29, 2019 passed by this court that, the said revisional application was frivolous inasmuch as the trial court, in the ordering portion of the impugned order, despite recording that the application under Order XVIII Rule 17 of the Code was allowed, specifically mentioned that the recall of plaintiffs' witness no. 1 should be confined "within tendering and cross-examining the witness only regarding the letter dated June 16, 2014 issued by the Kolkata Municipal Corporation as mentioned in the petition of the plaintiff". It was further recorded in such order of this court that, in view of such observation of the trial court, there was no scope for any apprehension as to the order being misinterpreted by any of the concerned parties, thereby vindicating the stand of the present petitioners that the portion whereby the opposite parties sought to tender the deed of declaration, stood refused.
However, being oblivious of the effect of the said portion of the relevant order dated August 27, 2018, whereby the deed of declaration was refused to be tendered, the trial court passed the impugned order recalling its previous order and supplementing the order dated June 25, 2019 to the effect that the plaintiffs' witness no. 1 would be cross-examined only in respect of the deed of declaration, which was previously refused not only by two orders of the trial court, but also impliedly affirmed by this court in the earlier revisional application.
In view of the previous orders having attained finality, the opposite parties tried to mislead the court below in filing the review application and obtaining the order impugned herein, getting a fresh lease of life to their prayer of tendering and being cross-examined on the deed of declaration, which was refused thrice previously. The impugned order, as such, was not only squarely barred by principle of res judicata, but also falls beyond the purview of review, as contemplated in Section 114 of the Code of Civil Procedure and Order XLVII thereof.
As such, the trial court patently acted without jurisdiction in passing the impugned order.
Accordingly, the revisional application bearing C.O. 2972 of 2019 is allowed, thereby setting aside the impugned order.
The opposite parties shall pay costs of Rs. 1,000/- to the petitioners within a fortnight from date, for misleading the court and for causing unnecessary harassment to the petitioners.
Photostat certified copy of this order, if applied for, will be made available to the applicant within a week from the date of putting in the requisites.