Dismissed¶19

Jnanbhusan Saha v. Muslam Sk. and Ors.

Calcutta HC2 Apr 2025CO/2758/2024

Case brief

AI extract

What is this about?

Calcutta HC, Civil Revision, CO 2758 of 2024, decided 02.04.2025, Biswajit Basu J. Keywords: Article 227 Constitution of India; Order XXVI Rule 10A Code of Civil Procedure; Section 63 Bharatiya Sakshya Adhiniyam 2023; scientific investigation; voice analysis; pen-drive; recorded telephonic conversation; electronic record proof; binanama; agreement for sale; cancellation of deed of purchase; Title Suit No.7 of 2020; Civil Judge (Senior Division) Malda; premature application before evidence stage; dismissal without costs; Jnanbhusan Saha v. Muslam Sk.

What did the court decide?

Information contained in an electronic record is required to be proved in accordance with Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, and such mode of proof cannot be substituted by taking recourse to Order XXVI Rule 10A of the Code of Civil Procedure.

Jnanbhusan Saha Vs Muslam Sk. and Ors. — Writ and Judicial Review | Calcutta HC (2025)

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the Trial Judge's Order No.51 dated July 8, 2024 dismissing the plaintiffs' application under Order XXVI Rule 10A of the Code of Civil Procedure suffers from any illegality and/or infirmity warranting interference in revision under Article 227 of the Constitution of India. +1 more

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Court's answer

Scientific investigation of the alleged recording and of the impugned deed depends upon the quality of evidence the plaintiffs would bring on record; that stage had not yet been reached because the plaintiffs had not yet adduced their evidence, so the application was premature.

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Ratio / Principle

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Key takeaways

This Court finds no illegality and/or infirmity in the order impugned warranting interference; the civil revisional application under Article 227 is accordingly dismissed without any order as to costs.ratio¶18

Detailed headnote1 paragraphs

Civil Revisional Jurisdiction (High Court at Calcutta), CO 2758 of 2024, decided 02.04.2025 by Biswajit Basu, J. Plaintiffs-petitioners in Title Suit No.7 of 2020 (declaration and cancellation of a deed of purchase allegedly executed when only a binanama/agreement for sale was intended) sought scientific investigation, under Order XXVI Rule 10A of the Code of Civil Procedure, of a pen-drive said to contain a telephonic conversation recorded on their mobile phone (including voice analysis of defendant no.1) and of the deed itself. The Trial Judge at Malda dismissed the application holding that the corroboration stage had not arisen as no evidence had yet been adduced, that the plaint contained no averments about the recording, and that the prayer was an afterthought to delay the proceeding. Upholding that order, the High Court held (i) that information in an electronic record must be proved under Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, which cannot be substituted by recourse to Order XXVI Rule 10A of the Code of Civil Procedure, and (ii) that scientific investigation depends on the quality of evidence the plaintiffs would bring on record, a stage not yet reached. Finding no illegality or infirmity warranting interference, the revisional application under Article 227 was dismissed without any order as to costs.

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S/L 3 02.04.2025 Court No.17 SD

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IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION

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CO 2758 of 2024 [Assigned]

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Jnanbhusan Saha & Anr. Vs.

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Muslam Sk. & Ors.

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Mr. Aniruddha Chatterjee, Sr. Adv.

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Mr. Mrinal Kanti Ghosh Mr. Sounak Bhattacharya

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… for the Petitioners.

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Mr. Probal Kumar Mukherjee, Sr. Adv. Mr. Pinaki Dhole Mr. Rabindra Kumar Pathak

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… for the Opposite Parties.

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The plaintiffs, in a suit for declaration, are the petitioners of the instant application under Article 227 of the Constitution of India which is directed against Order No.51 dated July 8, 2024 passed by the 1^st Court of learned Civil Judge (Senior Division) at Malda in the said suit being Title Suit No.7 of 2020 .

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The defendants are tracing their title over the suit property through a deed of purchase executed by the plaintiffs. The said deed is the subject matter of challenge in the said suit, the plaintiffs are praying for a decree of cancellation of the said deed, alleging inter alia that they never intended to execute the said deed, but a binanama . The plaintiffs are alleging that they had recorded their telephonic conversation with the defendants in their mobile phone wherefrom it would appear that there was a talk of execution of an agreement for sale only.

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The plaintiffs are claiming that such conversation has been stored in a pen-drive and by an application under Order XXVI Rule 10A of the Code of Civil Procedure, they had prayed for scientific investigation of the said pen-drive inter alia for voice analysis of the defendant no.1 recorded in the said pendrive and scientific investigation of the deed to ascertain the interpolations therein, etc.

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The learned Trial Judge by the order impugned has dismissed the said application holding that the plaintiffs are yet to adduce evidence; therefore, the stage of corroboration of the case has not yet arisen; besides, there are no averments in the plaint regarding recording of the conversation between the

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parties; the prayer for scientific investigation is an afterthought to delay the proceeding.

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The scientific investigation of the alleged recording of conversation between the parties and sending the impugned deed for investigation depend upon the quality of evidence the plaintiffs would bring on record, but such stage has not yet reached as the plaintiffs have not yet adduced their evidence. That apart, the information contained in an electronic record is required to be proved in accordance with the provision of Section 63 of the Bharatiya Sakshya Adhiniyam , 2023 which cannot be substituted by taking recourse of Order XXVI Rule 10A of the Code of Civil Procedure.

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This Court therefore, does not find any illegality and/or infirmity in the order impugned warranting interference.

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CO 2758 of 2024 is dismissed without any order as to costs.

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Parties to act on the server copy of this order duly downloaded from the official website of this Court.

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Urgent Photostat certified copy of this order, if applied for, be supplied to the parties, subject to compliance of all requisite formalities.

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(Biswajit Basu, J.)

Jnanbhusan Saha v. Muslam Sk. and Ors.

Case brief

What is this about?

What did the court decide?

Jnanbhusan Saha v. Muslam Sk. and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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