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Judgment
Re : C. O. No. 2434 of 2018
Learned counsel for the caveator is present. In view of the nature of the dispute involved, service on the opposite party nos. 2 and 3 is dispensed with.
The present challenge is at the instance of the decree-holder in an eviction suit, against an order whereby a complete stranger was impleaded in a
proceeding initiated by a third party/judgment-resistor under Order XXI Rules 99-101 of the Code of Civil Procedure, on the premise that such
stranger was the real owner of the suit property.
It is argued by learned counsel for the petitioner that the induction of a stranger to the suit in such a proceeding would unnecessarily broaden the ambit
of the proceeding, when such added party was neither a necessary nor a proper party to the suit. Learned senior counsel appearing for the
applicant/opposite party no. 1 argues that the added party is a necessary party to the proceeding, since the proceeding under Order XXI Rule 101 of
the Code is akin to a suit and, in order to have a complete adjudication on such proceeding, the added party was necessary.
It has been alleged that the said added party is the original owner of the property and the judgment-debtor, acting at the behest of such owner,
inducted the judgmentresistor/opposite party no. 1 to the suit property. Since the decree was obtained collusively, it is argued, it would be necessary to
bring in the said actual owner for the purpose of effective adjudication of the proceeding.
Upon hearing both sides and a perusal of the materials on record, it appears that as per the pleadings in the application under Order XXI Rule 101 of
the Code itself, particularly in paragraph â€" 6(a) of the same, it was alleged that the judgment-debtor, namely, Naresh Kumar Agarwal (Opposite
party no. 2 herein) was a director of the added party (Reliance Firebricks & Pottery Co. Ltd.) and the added party allotted the suit property to the said
Naresh Kumar Agarwal, who in turn inducted the judgement-resistor as a tenant in the suit room.
In the teeth of such pleadings, it is evident that Naresh was alleged to have independently inducted the judgment-resistor, not in the capacity of an
agent of the added party, but in Naresh’s own capacity. As such, the argument, that the added party was necessarily to be impleaded in the
proceeding, does not cut ice. In fact, addition of the said party would only unnecessarily broaden the conspectus of the proceeding, which would spiral
the proceeding out of the primary dispute involved therein.
Hence, the impugned order adding Reliance Firebricks & Potter Co. Limited cannot sustain scrutiny. Accordingly, C. O. No. 2434 of 2018 is allowed,
thereby setting aside the impugned order, being order No. 35 dated March 7, 2018 passed by the Judge, Fourth Bench, City Civil Court at Calcutta in
Miscellaneous Case No. 1297 of 2012 arising out of Title Execution Case No. 21 of 2012. There will, however, no order as to costs.
Re : C. O. No. 2404 of 2018
Learned counsel for the caveator is present. In view of the nature of the dispute involved, service on the opposite party nos. 2 and 3 is dispensed with.
This revision is directed, at the instance of the decree-holder in an eviction proceeding, against an order whereby the prayer of the decree-
holder/petitioner to expunge two documents, which had been marked as exhibits, was dismissed. It is contended by learned counsel for the petitioner
that two documents, which where photocopies of purported originals, were permitted to be exhibited only upon notice of production being issued to the
judgment-debtor/present opposite party no. 2, whereas those were being sought to be used against the present petitioner in the proceeding under Order
XXI Rule 101 of the Code of Civil Procedure initiated by the judgment- resistor/opposite party no. 1.
Such exercise, as per argument of the learned counsel for the petitioner, was illegal and ought to be struck down. While controverting such allegations,
learned senior counsel for the opposite party no. 1 submits that there was no necessity to issue any notice of production on the present petitioner since
the documents-in-question were to be presumed to be in the custody of the present opposite party no. 2. Since the present dispute relates to the
evidentiary value of the said documents, those should be dealt with at the time of hearing of the proceeding and there was no provision for expunging
documents, which were already on record as exhibits.
Upon hearing both sides, it is seen that the argument of the opposite party no. 1 has merit inasmuch as there was no need to issue any notice of
production on the petitioner, since the first part of Section 65 (a) of the Indian Evidence Act, 1872, contemplates a merger of identity between the
person against whom the document is sought to be proved and who appears to be in possession of the documents. Since such identity is dissociated in
the present case, inasmuch as the document is sought to be proved against the present petitioner, while it was presumed to be in the custody of the
present opposite party no. 2, the principle embodied in the said provision is not applicable to the present case.
As such, the documents-in-question were rightly exhibited as secondary evidence, of course, subject to the objection taken by the petitioner. Since
those documents were in any event objected to by the petitioner, such objection would take care of all the apprehensions of the petitioner. The
evidentiary value of the documents would, in any event, be open for being considered and adjudicated upon at the hearing of the miscellaneous case
under Order XXI Rule 101 of the Code of Civil Procedure.
Accordingly, C. O. No. 2404 of 2018 is dismissed, thereby affirming the impugned order, however, making it clear that the evidentiary value of the
exhibits-in-question would be left open for the executing court to decide at the time of final disposal of Miscellaneous Case No. 1297 of 2012. There
will, however, no order as to costs. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with
the requisite formalities.