Biplab Kar vs Malati Deb

Affidavit-of-service filed in court today be kept on record.

On the prayer of learned counsel for the appellant, leave is granted to the learned Advocate-on-record for the appellant to rectify the caption of the condonation application by inserting the FMAT number instead of SAT Number.

The reason for the delay, as explained in the condonation application, is that initially only the First Appellate court’s papers were handed over to learned counsel. Upon being so asked, the appellant handed over thereafter the trial court papers to the learned Advocate, which caused the delay in filing the appeal.

Upon hearing learned counsel for the parties, we are satisfied of the sufficiency of the explanation for the delay.

Accordingly, CAN 1 of 2026 is allowed, thereby condoning the delay in preferring FMAT 138 of 2026.

The appeal is now taken up for hearing under Order XLI Rule 11 of the Code of Civil Procedure.

The present challenge has been preferred against a judgment of remand.

The trial court decreed a suit for eviction of licensee in favour of the respondent, the sister of the appellant.

By a gift deed, the father of the parties, the admitted original owner of the suit property, had donated the suit property in favour of the respondent.

Learned counsel for the appellant argues that a certified copy of the said deed was furnished as evidence and also erroneously admitted as an exhibit in the suit, in the teeth of the denial of the plaintiff’s witness no.2, an employee of the Registration Office, as to the validity of the same.

Learned counsel for the appellant argues that in such circumstances, the Appellate Court ought to have set aside the trial court’s decree outright, being based on a disputed document.

However, we find from the records that before the First Appellate Court, the plaintiff/respondent produced the original of the gift deed in favour of the plaintiff/respondent by way of additional evidence, with an accompanying application under Order XLI Rule 27 of the Code of Civil Procedure, on which premise the learned Trial Judge disposed of the said application and permitted the parties to adduce additional evidence and granted liberty to the parties to amend their pleadings, primarily on the basis of such original.

It is apparent that by application of Order XLI Rule 27(1)(b) of the Code of Civil Procedure, the original of the disputed document is germane and the most relevant document for deciding the suit and accordingly was deemed to be required by the Appellate Court for a proper and complete adjudication of the lis.

In such view of the matter, this court does not find any illegality in the judgment of remand by the First Appellate Court, thereby permitting both parties to lead additional evidence.

In any event, it will be open to the appellant to dispute the admissibility and/or evidentiary value of the original gift deed, if furnished in evidence in the trial court after remand by the respondent, and as such, no valuable right of the appellant is affected in that sense.

Thus, we do not find any ground of interference with the impugned judgment and/or any reason for admission of the appeal.

Accordingly, FMAT 138 of 2026 is dismissed under Order XLI Rule 11 of the Code of Civil Procedure.

CAN 2 of 2026 stands disposed of accordingly.

There will be no order as to costs.

Urgent Photostat certified copies of this order, if applied for, be given to the parties upon compliance of all requisite formalities.