The High Court of Calcutta, while allowing an application filed by the petitioner to quash the impugned order passed by the lower court rejecting the defendant/petitioner’s objection to the affidavit-in-chief filed on behalf of the plaintiff, held that the State Election Commissioner ought not to have mechanically directed the aggrieved party to file an election petition for redressal of grievances.
Brief Facts:
The opposite party herein filed a suit against the present petitioner inter alia praying for decree of eviction and khas possession against the opposite parties on the ground of default and for their own use and occupation and for damages. In the said suit, one Lakshmi Kanta Dey filed an Affidavit-in-Chief under the provisions of Order XVIII Rule 4 on behalf of the plaintiffs. On 7.7.2017, the defendant filed an application inter alia praying for rejecting the said Affidavit-in-Chief contending that said Lakshmi Kanta Dey is not a party to the suit nor signed the plaint and he is also not aware of the plaintiff's alleged case of reasonable requirement. However, the learned Court below rejected the defendant's objection. Hence, the present petition.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the Petitioner submitted that Order III Rule 1 and 2 of the Code empowers the holder of power of attorney to “act” on behalf of the principal in respect of the “Acts” done by the power of attorney holder in the exercise of the power granted by the instrument. She contended that without amendment of the plaint, the Court was not justified in allowing the power of attorney holder to file an Affidavit-in-Chief, with statements that are beyond the pleading.
Observations of the court:
The court noted that in the Affidavit-in-Chief filed under Order XVIII, Rule 4 of the Code, the power of attorney holder has come up with a case that the husband of plaintiff no. 1 died 1½ years back and plaintiffs/opposite parties decided to run a hotel business in the suit premises along with her husband’s brother’s son who has sufficient means and experience to run the said business. Such a was made in the Affidavit-in-Chief without making any amendment of the plaint.
The Court observed that the cause of action for filing the suit as pleaded in the plaint factually differs to some extent from the statements made in the affidavit-in-chief in connection with the cause of action. It is not proper to raise a separate set of facts comprising cause of action at the time of trial, which plea was not raised in the plaint. This is because the defendant also has a right to get the opportunity to reply each and every material allegation and to state whether he admits or denies those allegations.
The decision of the Court:
The Calcutta High Court, allowing the petition, held that the Court below was not justified in accepting such Affidavit-in-Chief filed under Order XVIII.
Case Title: Sri Bireswar Kar v. Smt. Angur Dey & Anr.
Coram: Hon’ble Justice Ajoy Kumar Mukherjee
Case No.: C.O. 2840 of 2017
Advocate for the Petitioner: Ms. Sulekha Mitra
Advocate for the Respondent: None
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