Judgment:
1. This application is at the instance of the plaintiff and is directed against the Order No. 71 dated August 25, 2006 passed by the learned Judge, City Civil Court, 8 th Bench, Calcutta in O.C. No. 13 of 2003 thereby rejecting an application of the plaintiff dated August 18, 2006.
2. The plaintiff/petitioner herein instituted a probate proceeding under Section 276 of the Indian Succession Act, 1925.
3. The opposite parties are contesting the said proceeding and as such the probate matter has been converted into the O.C. No.13 of 2003. Both the parties have adduced evidence in support of their contentions. At the time of argument, the petitioner noticed that though he tendered seven documents but three of them have not been marked exhibits. So, the petitioner filed an application for marking those three left out documents as exhibits on his behalf and that application was rejected by the learned Trial Judge by the impugned order. Being aggrieved this application has been preferred.
4. Now, the question is whether the impugned order should be sustained.
5. Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that while tendering the evidence of the P.W.1 by way of affidavit-in-chief, the petitioner filed seven documents for marking the same as exhibits. The learned Trial Judge has marked four documents as exhibits, but he did not mark the rest three documents as exhibits. Those three left out documents are a letter dated January 19, 1979 written by Sulochana Dasi addressed to the CESC, electric bills for the month of December 2000 and July 2005 in the name of Sulochana Dasi and Burning Ghat Memo dated May 6, 1993.
6. Mr. Roy appearing on behalf of the petitioner has contended that as per the Order 13 Rule 6 of the C.P.C., the learned Trial Judge was to make necessary endorsement of inadmissibility of the documents which were not exhibited at the time of tendering the evidence. Since, there is no note to that effect, those documents should be marked exhibit. Ms. Chaudhury appearing for the opposite party has raised strong objection contending that after the examination of the P.W.1, the P.W.2 was also examined. After considerations of those documents. The learned Trial Judge did not mark them exhibits. Thereafter, the opposite party tendered evidence and the evidence of both the sides has been closed. The matter was fixed for hearing argument. Accordingly, the opposite party tendered written notes of argument in the court on March 27, 2006 with copy to the learned Advocate for the petitioners. At that time, that is, after lapse of about one year, the application was filed to fill up the lacunae of the petitioner’s case. So, Ms. Chaudhury has vehemently raised objection against the application.
In the instant case, I find that the petitioner has examined two P.W.s and when the seven documents are tendered and out of them four documents have been marked exhibit and the aforesaid three documents have not been marked exhibit by the concerned Trial Judge, the petitioner had the knowledge of not marking those documents as exhibits. They remained silent all the way through till the receipt of the copy of the agreement. The other parties have adduced evidence in support of their contentions. It is only at the time of argument, on perusal of the copy of the argument tendered by the opposite parties, the petitioner filed the application dated August 18, 2006 after about one year from the date of tendering the documents, for marking the three left out documents as exhibits. This is, I hold, nothing but an attempt to fill up the lacunae after going through the copy of the written argument tendered by the opposite parties. The learned Advocate for the petitioner has contended that the learned Trail Judge should have complied with the provisions of Order 13 Rule 6 of the C.P.C. and in this regard, I find that the learned Trial Judge has rightly rejected the said application holding that any lapse, if any, on the part of the court as pointed out, is nothing but a technical flaw and in absence of any endorsement as to inadmissibility, it cannot be presumed that those documents were not considered by the court for being exhibited. It may be pointed out that seven documents were filed in one day and out of them four documents were marked exhibit meaning thereby the three documents were not considered by the learned Trial Judge as fit for marking exhibits. The plaintiff/petitioner could have taken necessary steps for making those documents as exhibit by producing other witnesses or by the procedure to be adopted for marking a document as exhibit. Instead of doing that they have come up with the said application after lapse of one year and this is nothing but to fill up lacunae after going through the copy of the written argument tendered by the opposite parties in the court. The learned Trial Judge has, therefore, rightly commented that the attempt of the petitioner is nothing but to fill up the lacunae of the petitioner’s case.
In that view of the matter, I am of the opinion that the learned Trial Judge has rightly rejected the belated application dated August 18, 2006. There is nothing to interfere with the impugned order.
Accordingly, the revisional application fails to succeed. It is, therefore, dismissed.
Considering the circumstances, there will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.