Calcutta High Court: In an appeal against the setting aside the ex-parte eviction decree on the grounds that the trial court did not formally admitted certain documents into evidence, a single-judge bench comprising of Ajoy Kumar Mukherjee,* J., held that procedural technicalities should not override the substantive provisions of the law, particularly when the defense has been struck off, and the suit is scheduled for ex-parte hearing.
The Court opined that the first appellate court’s decision to set aside the ex-parte decree and remand the case deemed unnecessary and contrary to the purpose of Order 18 Rule 4 of the CPC. The Court set aside the first appellate court’s order and affirmed the trial court’s ex-parte decree.
Brief Overview
In the instant matter, the appellant-plaintiff initiated a suit against the defendants-respondents, seeking eviction and recovery of ‘khas’ possession on the grounds of default and reasonable requirement. The defendant was ordered to deposit a specific sum in trial court, but they failed to comply. Consequently, the trial court vide order dated 31-08-2004 struck out the defendant’s defense and proceeded with an ex-parte hearing, resulting in a decree in favor of the plaintiff.
The defendant, being aggrieved by the ex-parte decree, filed an appeal along with an application for condonation of delay, which was dismissed. However, a second appeal was later allowed, setting aside the dismissal and restoring the first appeal. The first appellate court vide order dated 13-05-2013, set aside the eviction decree on the grounds that the trial court had not formally admitted certain documents into evidence, set aside the eviction decree.
The appellant preferred the present appeal challenging the order dated 13-05-2013 which set aside the eviction decree passed by the trial court.
Moot Point
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Whether the trial court properly admitted and marked the documents filed by the appellant along with the affidavit-in-chief as exhibits?
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Whether the appellate court erred in ordering a remand for the marking of documents when the suit was already decided in favor of the appellant?
Parties’ Contentions
The appellant contended that the documents relied upon by the appellant were already marked as exhibits in the affidavit-in-chief on oath and that the trial court properly considered the probative value of the documentary evidence. The appellant argued that even if there were procedural irregularities in admitting the documents, they should not be challenged for the first time before the first appellate court.
The respondent contended that the mere production of documents in the affidavit-in-chief is not sufficient for admission as evidence. It was argued that the documents must be properly proved and exhibited, and the trial court failed to comply with the necessary procedure for marking the documents as exhibits.
Court’s Assessment
The Court held that the remand order was not justified, and a remand was unnecessary in this case where the defendant’s right to cross-examine had been closed, and the probative value of the evidence, including the documents, was not under challenge.
The Court stated that “the order of the court below for remand has frustrated the very object of framing Order XVIII Rule 4 in the code as stated above where probative value of evidence (either oral or documentary) were never under challenge. There is no justification to pass order of remand merely on technical grounds.” The Court noted that the documents were already relied upon by the trial court and that remanding the case for formal marking of documents would be an unnecessary formality.
The Court further observed that “even if there are some irregularity in admitting the documents in evidence, while deciding the suit, it would be an empty formality to remand the suit, and the same would unnecessarily result in starting another round of litigation.”
The Court also emphasized that the judiciary should prioritize doing justice over legal technicalities.
“The court below ought to have kept in mind that the judiciary is respected not on account of its power to legalise injustice but because it is capable of doing justice and it is expected to do so.
Court’s Decision
The Court allowed the appeal and set aside the order of the appellate court. The Court affirmed the order passed by the trial court dated 31-08-2004, which granted an ex-parte decree in favor of the appellant.
[Shree Shree Iswar Satyanarayanjee v. Partha Brothers, 2023 SCC OnLine Cal 3519, order dated 11-10-2023]
*Judgment by Justice Ajoy Kumar Mukherjee
Advocates who appeared in this case :
Mr. Sakya Sen, Sr. Adv. with Mr. Animesh Pal and Mr. Ramij Munsi, Counsel for the Appellants
Mr. Srijib Chakraborty, Mr. Subhasis Chakraborty, Ms. Susmita Singh and Mr. Deeptangshu Kal, Counsel for the Respondents
