RUDRENDRA NATH BANERJEE, J.:
This revisional application under Article 227 of the Constitution of India is directed against the order dated 02.08.2008, passed in title suit No. 178 of 2004 in the 3rd Court of Civil Judge (Junior Division) at Howrah, thereby rejecting an application of the petitioner for adducing additional evidence. The plaintiff/ petitioner's case in the court below is for eviction of the defendant/opposite party/tenant on the ground of reasonable requirement and default. After the evidence of both sides was complete, the plaintiff/petitioner, on 15.07.2008 filed an application for recalling the P.W. 1 for accepting a document like an exercise book wherein the names of the tenants and the rents paid by such tenants have been mentioned.
Learned Court below while disposing of the petition observed that neither in the plaint nor in the evidence of the plaintiff or his witnesses it has been stated that such 'khata' used to be maintained at the time of receiving rent. It has been further observed by the Court below that during the evidence, the plaintiff has not spoken of the untractability of such exercise book and it was further observed that it was manifested that the plaintiff was trying to fill up the lacuna of evidence and accordingly the petition was rejected. Being aggrieved by and dissatisfied with such order of the learned Court below, rejecting the plaintiff's application, the plaintiff has filed the application for revision under Article 227 of the Constitution of India. It has been contended by Mr. Sanjib Dutta, learned Advocate, appearing for the petitioner that provisions of order 18 Rule 17(a) of the Code of Civil Procedure speaks of allowing such additional evidence provided that the existence of such document was not within the knowledge of the plaintiff and according to him the impugned order does not provide any sound reasons for not accepting the document as evidence.
It appears on the very reading of the plaint that the plaintiff, Jahar Santra, is the co-sharer and the landlord of the suit property and the defendant is a tenant in respect of the same under the plaintiff and the plaintiff acquired such property by way of inheritance from his mother, Smt. Prasad Bala Santra, who got the property by a deed-of-settlement in her favour. But in the plaint itself, the very existence of the exercise book maintained by the plaintiff or his predecessor, mother, has not been disclosed. The P.W.1, that is the plaintiff himself, has stated in his examination-in-chief that he did not use to keep any note in any exercise book, and that his mother also did not use to grant receipt at the time of accepting the rent from the defendant. But the plaintiff did not state about the existence of any exercise book wherein he or his mother noted about the receipt of rents from the defendant and other tenants nor did the plaintiff express his willingness to produce such exercise book. Nor is it contended that the plaintiff ever suggested to the witnesses of the defendant that there was any such exercise book to show the existence of other tenants, namely, Nishit Das, Tarun Das Bairagya, Barun Golui , as mentioned in the petition. After completion of the examination of the plaintiff and the cross-examination of the defendant's witnesses, the plaintiff wants to bring such exercise book on record to show that there are some other tenants or the period of default of the defendant. There is nothing in the plaint or the evidence of the P.W.1 that the said document was not in the knowledge of the plaintiff or that the same was not traceable. Thus, the provision of order 18 Rule 17(a) of the amended Code of Civil Procedure does not come into play. The said evidence becomes irrelevant so long the plaint itself and the P.W. 1 himself, do not disclose the existence of the same. Learned Court below was quite justified in not allowing the plaintiff to produce such exercise book or 'khata' as evidence on the ground that the plaintiff was trying to fill up the lacuna of evidence already adduced. Thus, the impugned order rejecting the application for addition of the application dated 15.07.2008 by the plaintiff was only to fill up the lacuna of evidence without any statement in the plaint or by the P.W.1, appears to be justified and I do not find any reason to interfere with the same. Of course, this decision will not preclude the plaintiff from seeking for amendment of the plaint, if any, according to law.
Mr. Dutta, learned Advocate for the petitioner has cited a Single Bench decision reported in 2008(1) CLJ(Cal), page-450 ( Sanat Kumar Ganguly vs Sandhya Dutta Chowdhury & Ors.) in support of his contention. The said decision does not come to the help of the plaintiff as in the present case there is no evidence as to the fact that after exercise of due diligence the evidence was not within the knowledge of the plaintiff.
The revisional application is accordingly dismissed. There shall be no order as to costs.
