Sk. Manik & Ors vs Sk. Mani & Anr

Sabyasachi Bhattacharyya, J

The present revisional application has been preferred against the rejection of two applications of the plaintiffs/petitioners in a suit for partition, praying respectively for reconstruction of the records on the basis of the copy of the written statement served on the petitioners and for an enquiry to be held in respect of an alleged tampering of the written statement, which was in the records of the trial court.

The petitioners complain that the copy of the written statement served after affirmation on the petitioners does not tally in vital respects with the photostat certified copy of the written statement, which was filed ultimately by the defendant no. 1 in court.

It is argued by the learned advocate appearing on behalf of the petitioners, placing reliance on several paragraphs of the respective copies of written statements, that vital admissions made by the said defendant no. 1 were apparently scored through in the copy which was filed in court. In particular, the learned advocate for the petitioners relies on pages 39, 41, 42, 43 and 44 of the annexures to this revisional application, which are a part of the copy of the written statement served on the petitioners, as compared to pages 55, 57, 58, 59 and 60 respectively of the copy of the written statement filed in court, as per the pagination in the revisional application.

The learned advocate for the petitioners also points out that the copy served on the petitioners was affirmed by the defendant no. 1, as evident from page 62 of the revisional application, which was blanked out by superimposition of a sheet, as apparent from page 46 of the instant revisional application.

The learned advocate for the petitioner further produces a photocopy of the certified copy of the affidavit-in-chief filed by the defendant no. 1, to show that the averments in such affidavit tallied with the copy served on the petitioners and not with the allegedly tampered copy now existing on record.

As such, the learned advocate for the petitioners argues that the trial court acted without jurisdiction in refusing the prayers of the petitioners.

The learned advocate appearing on behalf of the opposite parties argues that the corrections in question were carried out after the written statement was affirmed before the sheristadar of the trial court, but before being filed, in support of which he shows the signatures of the sheristadar over each of the said corrections, which, according to the opposite parties, sanctifies such corrections.

The learned advocate for the opposite parties further submits that it is the usual practice in courts that such corrections may be carried out even after affirmation or at the juncture of affirmation with the signature of the sheristadar or other concerned officer in charge of such affirmation. It is argued, in tune with the plea taken in the court below, that the clerk of the concerned advocate for the opposite parties in the court below committed an error in not carrying out the corrections before handing over the written statement to the petitioners. As such, it is submitted that the trial judge was justified in passing the impugned order.

Although the version of the opposite parties could be one of the plausible ones in the circumstances, there is much force in the version of the petitioners as well. There are certain indicators which are strong enough to have justified an enquiry into the matter. For example, the affidavit in chief must have been filed after the written statement. However, such affidavit contains averments in tune with the copy of the written statement served on the petitioner and not the one, which was ultimately filed as is on record. Moreover, the learned advocate for the petitioners is justified in submitting that, on the face of it, some of the corrections made are devoid of any signature of the sheristadar.

It is seen from the annexures to the instant revisional application that the only signature of the sheristadar is on a correction carried out in the copy of the written statement handed over to the petitioners, which signature tallies with that accompanying the same correction in the written statement filed in court. It does not, however, tally with the other signatures, allegedly of the sheristadar, over the deletions, which are part of the alleged tampering. In view of such discrepancies apparent on record, a question is genuinely raised as to whether tampering actually took place to vary the pleadings of the written statement from the affidavit-in-chief of the defendant no. 1, to withdraw admissions made by the said defendant in an oblique manner, without filing a proper application for amendment before the trial court.

Accordingly, the trial court refused to exercise jurisdiction vested in it by law in not directing an enquiry into the matter. However, the prayer for reconstruction was premature and could only be a consequence of such enquiry, if it resulted in favour of the petitioners, and if required by the trial court.

Hence, the revisional application bearing C.O. 2593 of 2019 is disposed of by setting aside the portion of the impugned order, whereby the petitioners' application for holding an enquiry into the matter was dismissed. The trial court is directed to conduct an enquiry at the earliest into the question of alleged tampering of written statement raised by the plaintiffs/petitioners in connection with Title Suit No. 232 of 2013, upon taking all necessary steps and receiving evidence, if it deems fit, for the purpose of arriving at a just conclusion on such enquiry. The enquiry shall be completed by the trial court within two months from the date of communication of this order to the court below.

It is made clear that the trial court will not be swayed by any of the observations made herein and will independently form an opinion upon such enquiry being held.

There will be no order as to costs.

Photostat certified copy of this order, if applied for, will be dns made available to the applicant within a week from the date of putting in the requisites.