High Court · 2012

CRP 36/2012 BEFORE HON’BLE MR. JUSTICE A.K. GOSWAMI Heard Mr. J. Roy, learned counsel for the petitioner. Also heard Mr. G.N. Sahewa lla, learned Senior counsel for the respondent. 2. This revision petition under Article 227 of the Constitution of India ha s been filed challenging the orders dated 04-06-2011 and 03-08-2011 passed by t he learned Civil Judge, Morigaon, in Title Suit No. 18 of 2010, which was filed praying for a decree :- (cid:28) (i) t of Notice Inviting Tender dated 17-04-2008 in respect of Tender No. NPM/EMCC/C IV/08-9/13 and Tender No. NPM/EMCC/CIV/08-09/14 is illegal and arbitrary and vi olative of Article 14,19 (1) (g) and 300 A of the Constitution of India and is v iolative of the enshrined principle of Natural Justice; and (ii) Declaring that the clarification relating to the withholding of money in respect of the work Order No.:W/On behalf of No. NPM/EMCC/CVL/05-06/38/WO/84 da ted 17-02-2006 as enclosed to the letter bearing Ref No. NPM/CIVIL/707 dated 07- 05-2008 by the Sr. Manager (Civil) of the defendant Corporation is bad in law, v oid abinitio and nonest in the eye of law; and (iii) Declaring that the impugned Constitution of the Committee by the Genera l Manager (Works) vide his letter bearing No. GMW:SC-025:07-08 dated 01-08-2008 is bad in law, void abinitio and (iv) Declaring that the impugned Committee’s report dated 15-04-2009 and the findings recorded therein are bad in law, void abinitio and nonest in the eye of law; and (v) Declaring that the impugned letter bearing No. GMW:GC-025:08-09 dated 22 -09-2009 issued by the General Manager (Works) of the defendant’s Corporation is bad in law; (cid:29).

3. The photocopies of documents referred to in prayer (iii), (iv) and (v ) above are enclosed and marked as Annexures XXIX, XXX and XXXI, respectively, i n the plaint. The petitioners, as defendants, had filed written statement, in wh ich, the photocopies of the said documents were also enclosed as defendants’ doc ument Nos. 1,2 and 3, respectively. 4. On 20-05-2011, an application was filed by the advocate on behalf of t he defendants praying for allowing the defendants to submit the originals of the aforesaid documents at the time of filing of affidavit of evidence of the defen ce witnesses. The said petition came to be rejected by an order dated 04-06-2011 . However, the learned Court below, nevertheless, permitted the defendants to su bmit the original documents, if any, on the next date i.e. 28-06-2011. 5. It is relevant to note that issues were already framed on 18-04-2011. Pursuant to the order passed by this Court on 22-05-2012, the learned co 6. unsel for the petitioner has placed before the Court the order passed by the lea rned Trial Court on 28-06-2011 as well as the petition filed by the petitioner on that date. Additionally, the petition dated 18-07-2011 as well as the order passed by the learned Trial Court on 18-07-2011 are also brought on record. 7. By the petition dated 28-06-2011, the defendants prayed for time for t wo months to produce the original documents on the ground that the original docu ments are being used for financial audit at the Head Office at Kolkata. The learned Presiding Officer of the Court was on leave on 28-06-2011 an 8. d accordingly, 18-07-2011 was fixed for necessary orders. On 18-07-2011, anothe r petition was filed stating that Mr. Rajiv Borpujari, learned counsel for the d efendants could not appear because of (cid:28) Assam Bandh (cid:29) and therefore, by the said petition, prayer was made for fixing another date for submitting the original d ocuments. The learned Court granted time fixing 03-08-2011 for submission of the original documents.

9. On 03-08-2011, another petition was filed by the defendants praying f or an order to allow the defendants to submit the original documents, which we re in the Zonal Office at Kolkata, at the time of filing evidence of affidavit b y the defendants’ witnesses.

10. By an order dated 03-08-2011, this petition came to be rejected, primari ly on two grounds : (a) similar petition was earlier rejected by an order dated 04-06-2011 and (b) defendants failed to convince the Court as to why they had f ailed to submit the original documents inspite of time being allowed to them. 11. Mr. J. Roy, learned counsel for the petitioner has submitted that for pr oper adjudication of the Suit, it is essential to have the originals of the sai d documents on records. On a pointed query of this Court, Mr. Roy submits that the aforesaid do 12. cuments which are produced by the plaintiff are the exact copies of the original s and that there is no discrepancy in the same. The learned counsel is also unab le to explain how having prayed for time to submit the original documents, the application dated 03-08-2011 came to be filed renewing the very same prayer whic h was rejected by the order dated 04-06-2011. He also makes an alternative submi ssion that in case the Court is not inclined to interfere with the said orders d ated 04-06-2011 and 03-08-201, one more opportunity may be granted to the defend ants to produce the original documents before the Court on a date to be fixed by this Court.

13. Mr. Sahewalla, learned Senior counsel for the respondent submits that th e petitioner having accepted the order dated 04-06-2011 and having prayed for ti me to produce the original documents, they are estopped from challenging the sai d order in the revision petition. The learned Senior counsel submits that earlie r similar application having been dismissed by the learned Trial Court and the s aid order having not been challenged, learned Trial Court was justified in rejec ting the petition filed on 03-08-2011 and therefore, this Court may not interfe re with the orders dated 04-06-2011 and 03-08-2011. The learned Senior counsel f urther submits that , in any view of the matter, the prayer of the defendants to produce the original documents at the time of submission of evidence on affidav it is totally misplaced. 14. The defendants are not taking a clear stand with regard to the documents in question. While in the petition dated 28-06-2011, it was stated that the doc uments were in the Head Office, in the petition dated 03-08-2011, the same were stated to be in the Zonal Office. There is substance in the submission of the learned Senior counsel for 15. the respondent. The petitioners having accepted and acted upon the order dated 0 4-06-2011, they cannot be permitted at a later date to assail the very same orde r and therefore, this Court, in exercise of the powers under Article 227 of the Constitution of India, is not inclined to interfere with the order dated 04-06- 2011. Consequently, the order dated 03-08-2011 also requires no interference, t he said order, having reiterated the earlier order dated 04-06-2011. 16. However, it is seen that the learned Trial Court had granted time to the defendants to produce the said original documents. In the aforesaid view of the matter, this Court is of the opinion that the submission of Mr. Roy for grant o f one more opportunity cannot be totally brushed aside. This Court is also of t he opinion that the prayer of Mr. J. Roy to grant one more opportunity to produc e the documents will not prejudice the case of the plaintiff. Taking that view, it is provided that on the next date fixed, if the original documents in question are submitted before the Court, the same shall be accepte d by the learned Trial Court and if the same are not submitted on the next date fixed by the Court, the learned Trial Court shall proceed in accordance with law . 17. The parties to the proceedings will appear before the learned Trial Cour t on 20-06-2012 and on that date, the defendants may submit the originals of the aforesaid three documents.

18. d of. With the aforesaid directions and observations, this petition is dispose