Sunday, 7 August 2016

Whether party can be permitted to adduce secondary evidence if no notice to produce document is given?

On the basis of the plaint case, the allegations as made therein and the fact that the lease in question was for 21 years and the defendant 2 on 13-3-67, had an assignment in favour of the defendant 1 read and considered along with prayer (a) of the plaint, we feel that due and legal proof of the document (Ext. 5) was necessary, even in spite of the determinations as indicated hereinbefore and that too in terms of the provisions of the Evidence Act and more particularly when in the case of Nityananda Roy v. Rashbehari Roy, , it has been observed that in order that secondary evidence of documents mentioned in Section 65(a) may be given, it is essential that the procedure laid down in Section 66 should be strictly complied with. Where no notice as required by Section 66 is given, the secondary evidence is not admissible. In this case, admittedly the secondary evidence of Exhibit 5, was sought to be produced or led in evidence by P.W. 1, without duly requiring either the defendant No. 2 or the defendant 1, to produce the original thereof. Such being the position, we are of the view that since the provision of Section 66of the Evidence Act has not been complied with, Exhibit 5 was not appropriately taken into evidence.
Calcutta High Court
Smt. Sulochana Devi Bubna vs Gobinda Chandra Nag And Ors. on 30 September, 1985
Equivalent citations: AIR 1986 Cal 430

Bench: M Roy, A Sengupta


1. This appeal is directed against the judgment and decree dt. 27-8-84, passed in Title Suit No. 2371 of 1980, by Sri K. D. Banerjee, learned Judge, 7th Bench, City Civil Court, Calcutta. By such determination, the plaintiff-respondents' suit for recovery of possession of the suit premises, which is 40, Sri Arabindo Sarani (hereinafter referred to as the said premises), by evicting the defendant-appellants therefrom, on thegrounds of expiry of the terms of lease (Ext. 1), upon service of notice to that effect, was decreed ex parte with costs and it was further directed that the plaintiff-respondents would be entitled to have a decree for recovery of khas possession of the suit premises, by evicting the defendant-appellants therefrom and the defendant-appellants were allowed time till 31-10-84, to quit and vacate the said premises. Apart from the above, the learned Judge also directed that the plaintiff-respondents would be entitled to recover mesne profits at the rate of Rs. 800/- per month with effect from 1-9-80, till recovery of khas possession of the said premises.
2. It was the case of the plaintiffs, that one Rashbehari Basu and one Kumud Behart Basu were the original owners of the said premises and by an indenture of lease (Ext. 1) dt. 7-9-59, the said premises was leased out to Meghraj Bubna, defendant 2, in the suit, and such lease commenced from 1-10-59 and was due to expire on 30-9-80.
3. It was also alleged that during the continuance of the lease, the said Meghraj Babna assigned the lease in favour of the defendant 1, Smt. Sulochona Devi Bubna by a deed of assignment (Ext. 5) dt. 13-3-67, on the same terms and conditions for the unexpired period and thereafter, by another indenture dt. 20-3-74 the said Rashbehari Basu sold his undivided 3/4th share of the said premises in favour of one Gobinda Chandra Nag and the other owner, Sri Kumud Behari Basu, by an indenture of the same date, sold his undivided 1/4th share in the said premises in favour of one Krishna Ram Nag, since deceased. It has also been stated that the said Krishna Ram Nag, while alive, by another deed of gift dt. 18-4-75, transferred the portion of the said premises as mentioned above and which was held by him, in favour of plaintiff 2, Sm. Astami Nag. That being the position, it has further been stated that the plaintiffs became the absolute owners of the said premises.
4. It has further been alleged that the defendants paid rents to the plaintiffs regularly and up to Sept. 1980 and after the expiry of the lease (Ext 1) on 30-9-80, the defendant 1 is not vacating the said premises in spite of repeated demand and request, made both rally and through a notice as mentioned in para 7 of the plaint.
5. In her written statement, the defendant 1, apart from denying the mater ial allegations, stated that she had no knowledge of the concerned lease dt. 7-9-59, which was said to be given to the defendant 2 and she only knew that the said defendant 2 was a monthly tenant in aspect of the said property. There war, another written-statement filed by defendant -2, wherein, amongst others, such dispute as indicated hereinbefore was also raised.
6. On the pleadings, the learned Court below on 4-2-82 framed the following issues for determination : --
1. Are the plaintiffs entitled to recover possession of the suit premises on the expiry of the period of lease as stated in the Deed dt. 7-9-1959?
2. Is the defendant 1, a tenant under West Bengal Premises Tenancy Act, 1956 in respect of the suit premises.
3. To what reliefs the plaintiffs are entitled.
4. Are the plaintiffs entitled to get a decree as prayed for?
7. It would appear from the recording as made in the judgment as impeached, that the learned Court below has observed that the learned Advocate for the defendant 1 took such attitude, for which the case had to be heard ex parte and more particularly, as he declined to participate in the proceedings.
8. Admittedly, on 27-8-84, the parties to the proceeding filed hazira and the suit was taken up for peremptory hearing. At that stage, the learned Advocate for the defendant Noal stated that since an earlier application, as filed by the defendant No. 1, under Order 26 Rule 4 of the Civil P.C. for her examination on commission, as she was lying ill at Patna has not as yet been disposed of the same must be heard, dealt with and disposed of first and before the peremptory hearing is taken up. It would also appear from the records that thereafter, the said learned Advocate for defendant 1, filed another petition for hearing of the concerned application under Order 26 Rule 4 of the Civil P.C. and also prayed for adjourning the peremptory hearing of the suit. Such prayer was opposed by the plaintiff's on the ground that the same was not bona fide and by that the defendant 1 trying to delay the proceeding and thus to frustrate the disposal of an old suit.
9. It would also appear from the records that 2-7-84, was the date fixed for peremptory hearing of the suit and then the application under Order 26 Rule 4 of the Code was filed. Such application, the learned Court below has observed, was a premature one, since the prayer as made therein, viz., to have the defendant 1 examined on commission, was made before the examination of any witness on behalf of the plaintiffs. Since the procedure as sought to be adopted and the particulars whereof have been indicated hereinbefore was thought to be, by the learned Court below, a novel procedure or a procedure not known in law, he decided to reject that application; but for the purpose of giving the defendant 1 some opportunity, the learned Court below had fixed 2-7-84 as mentioned above, for consideration of the said petition after examination of the P. Ws. and accordingly, the learned Advocate for the defendant 1 was informed. It has further been recorded that even on such information and on 27-8-84 when the matter was taken up for consideration, the learned Advocate for the defendant 1 according to the learned Court below, took uncompromising attitude and restated that the defendant J will have to be examined on commission and before the plaintiffs witnesses are examined. As indicated earlier, the learned Court below, all I throughout maintained that such prayer of the defendant 1 or her learned lawyer, was unreasonable.
10. It has been recorded that in view of the pleadings in the proceeding and that too in terms of the provisions of the Code, the plaintiffs had a right to take up and, if necessary, to produce his evidence in support of the issue as framed and was bound to prove his case and according to the learned Court below, there was and has been not lawful procedure laid down in the Code. which the examination of the defendant 1 on commission, prior to the evidence of the plaintiffs would be taken up. That being the position, the prayer as made was rejected and the learned Court below informed the learned Advocate for the defendant 1 accordingly and has further recorded that after the plaintiffs are examined in chief, the defendant 1 would be given time and opportunity to cross-examine the plaintiffs at a suitable and subsequent day, so that she may not feel prejudice in the manner. In fact, to such procedure, the learned Advocate for the plaintiffs has also agreed. The learned trial Court has recorded further that to such procedure, as indicated above, the learned Advocate for the defendant 1 could not agree.
11. The matter had not ended there, and immediately after the above happenings, the suit was taken up for peremptory hearing, when the learned Advocate for the defendant 1 declined to participate. Thereafter, the learned Court below, even though the issues, as indicated hereinbefore were framed, without answering the issues separately or appropriately decreed the suit in the manner as indicated hereinbefore, after referring to the fact that the suit was one for recovery of possession of the said premises by evicting the defendants therefrom on the ground of expiry of the lease (Ext 1), upon service of notice to that effect and he further formed the opinion on the basis of the evidence of Sri Gobinda Chandra Nag, plaintiff 1, that it was proved that the lease (Ext. 1) of the defendants, had expired with the expiry of 30-9-80 and they had been illegally occupying the suit premises. That being the position and findings, the learned Court below had just recorded "the plaintiffs" case was proved."
12. Mr. Roy Choudhury, appearing in support of the appeal, after placing the facts and t he relevant portions from the order sheet stated, that this was not a proper judgment, as all the issues in terms of the requirements of Order 14. Rule 2(1) and (2) of the Code were not answered and since the issues have not been duly answered, the judgment as impeached, should be held and deemed to be not a proper judgment. It was further claimed by him that a any event, even on the basis of the evidence of P.W.1, the learned Judge could not pass the impugned order authoritatively, as, if not all, but at least Exhibits 1 and 5 were not proved. There is no dispute or there can be any denial of the fact that the issues in question have not been answered in terms of Order 14, Rule 2 of the Code which lays down the requirements to be followed and necessary for the Court to pronounce the judgment and makes provisions that (1) notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of Sub-rule (2), pronounce judgment on all issues. The said Sub-r. (2) requires that where issues, both of law and of fact, arise in the same suit and the Court is of opinion that the case or any part thereof may be disposed of on an issue of taw only, it may try that issue first, if that issue relates to (a) the jurisdiction of the Court or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue. Here in the instant case, agreeing with Mr. Roy Choudhary, we feel that Sub-rule (1) of Order 14, Rule 2 of the Code will have no application, but Sub-rule (2) will apply, as precisely the point in issue in the instant case, was one of law and fact and not a decision on the preliminary point.
13. It should also be noted that after filing the first petition, which was fixed for hearing on 2-4-1984, another petition, which was the second petition, was filed and on 27-8-1984, the second petition was taken up for hearing and the same was rejected. On such rejection, the learned Court below proceeded with the hearing of the matter and evidence of P. W. 1 was taken and then, the suit was disposed of ex parte and in the manner as indicated hereinbefore. At this stage, it must also be noted that Mr. Mitra, appearing for the plaintiff-respondents, contended that there was no basis or any jurisdiction for the defendant-appellants to claim their witnesses to be examined on commission and in fact no such commission, as asked for, could be taken out, before the examination of the plaintiffs. In answer to that, Mr. Roy Choudhury stated that since admittedly, the witness on behalf of the defendants was staying at the relevant time at Patna and outside the jurisdiction of the Court concerned so under Order 16, Rule 19 of the Civil P. C., she could not be asked or ordered to attend in person. Further reference was made by him to the provisions of Order 26, Rule 4, which lays down or makes provisions for person for whose examination, a commission may issue, apart from relying on Rr. 8 and 10 of the said Order, which respectively deal with or make provisions for the time when depositions may be read in evidence and the procedure to be followed before a Commission. Here also, Mr. Roy Choudhury claimed that the order for the issue of commission would have been permissible and possible as the witness concerned, at the relevant time, was admittedly staying outside the territorial jurisdiction of the Court concerned. From the facts it appeared that the witness concerned was not ordinarily residing outside the territorial jurisdiction of the learned Court below, but for sometime and temporarily and for reasons as indicated hereinbefore, she was staying at Patna. That being the position, the stand as taken by the defendant-appellants that the witness concerned must be examined on commission first and before the plaintiffs, may not be appropriate and as pointed out by Mr. Mitra, the attitude which was taken by the learned Advocate concerned, who at the relevant time was appearing for the defendant-appellants, was not perhaps just and bona fide, the more so when, the learned Court below specifically directed or ordered that at least the plaintiffs should have examined in chief and the defendant 1 should be given time and opportunity to cross-examine the plaintiffs at a suitable and subsequent day, so that the defendant 1 may not feel any prejudice. It would appear from the order as impeached, that even to this suggestion by the learned Court below, the learned lawyer appearing for the defendant 1, did not agree. We keep it on record and that too irrespective of our findings as would be indicated hereafter, that such attitude by the learned Advocate concerned, was neither proper nor just.
13A. Mr. Mitra stated that the defendant-appellants should not be given or shown any further latitude, as the order in question was made in the above manner and that apart, the learned Court below bona fide gave the said defendant every opportunity to establish the case or was interested to see that the case of the defendant 1, was not prejudiced. In support of his submissions as above, Mr. Mitra firstly relied on the Privy Council decision in the case of Padman v. Hanwanta, 19 Cal WN 929 : (AIR 1915 PC 111), where the First Appellate Court treated a copy of the Will taken from the Registrar's Office, which was filed and admitted in evidence in the First Court without objection, as admissible, to be wrong on the ground that no sufficient foundation was laid for the admission in the First Court of secondary evidence and if such objection had been taken in the First Court, that Court would probably had seen that the deficiency was supplied. In fact, in that case, the First Appellant Court held that the concerned Will had been revoked or cancelled, but on second appeal, the Chief Court held that there is no sufficient evidence of revocation and that the more reasonable presumption was that the Will was mislaid or lost or else stolen by one of the defendants after the death of the deceased, was perfectly within the competency of the Chief Court to decide. Thereafter reference was made by Mr. Mitra to the case of Shahzadi Begum v. Secretary of State for India In Council, (1907) 34 Ind App 194, which was a case on Indian Evidence Act and was considering the admissibility of evidence in respect of certain certified copy of deed of exchange, upon a claim by two of the appellants to letters of administration to the estate of a deceased Mohamedan and where, the issue arose whether his ancestress was the uterine sister of the said appellant's ancestor, and there two documents, a genealogical table and a certified copy of a deed of exchange, dt. Jan. 1782, were put in evidence, either of which was conclusive in the appellant's favour if admissible and genuine. It was held on examination of the evidence that the District Judge concerned was right in holding the concerned documents to be genuine and they were admissible. In this case also, it has been pointed out that objection to the admissibility of the document should have been taken at the initial and appropriate stage and may not be considered, if the document in question was taken into evidence without objection at the trial. The next case, to which Mr. Mitra made a reference, was that of the case of P. C. Purushothama Reddiar v. Section Perumal, . In fact, specific reference was made by Mr. Mitra to the observations that it is not open to a party to object to the admissibility of documents, which are marked as exhibits without any objection from such party and once a document was properly admitted, the contents of that document are also admitted in evidence though those contents may not be conclusive evidence. On the basis of the evidence as above and also on a reference to the case of Jagarnath Pershad v. Hanuman Pershad, (1909) 36 Ind App 221, Mr. Mitra pointed out that objection to the documents in question, which were admitted in evidence, not having been taken at the initial stage, no exceptions to them can be taken now. The rules, as indicated by him, are salient no doubt, but such rules as evolved by or through the decisions as indicated hereinbefore, in our view, would have little or no application in this case, as here, admittedly the party viz., defendant 1., was absent, while, in those cases, the parties concerned were present.
14. Mr. Mitra then severely criticised and commented on the attitude of the learned lawyer of defendant 1, in refusing to accept the offer which was given by the learned Court below and stated, that since, even in spite of such offer and opportunity, there was no objection taken, not only in view of the cases as cited above but also on the basis of the case, the particulars whereof would be indicated hereafter, the learned Court below, had no duty or obligation to give further opportunities to the said defendant 1. While on the duty of the Court, Mr. Mitra first referred to the observations in the case of Rajeshwari Dasi v. Pulin Behari Mitter, 25 Cal WN 881 : (AIR 1921 Cal 71), where certain rent receipts having been admitted in evidence without objection in the Court of first instance, it has been observed that no objection could be taken in the Apppellate Court that they were not properly produced. Thereafter, Mr. Mitra referred to the case of (Sayeruddin v. Samiruddin, (72 IC 985) : (AIR 1923 Cal 3781 and then to the observations in the case of Kamod Singh v. Khemkaran, 103 Ind Cas 186 : (AIR 1927 Nag 269). In that case, it has been indicated that it is the duty of a Court to get hold of all the relevant evidence as there may be and to examine them, giving, of course, due weight to the circumstances attending its production, which might render it less or more eredible and giving the other party a fair opportunity of meeting them and no Court has a right to reject evidence, tendered at any stage of the trial before its close, unless it is irrelevant. Lastly, Mr. Mitra referred to the determinations in the case of Gulab Chand v. Sheo Karan Lall Seth, . In fact, particular reference was made by him to the observations that objection about the admissibility or the mode of proof of a document should be raised at the trial and that kind of grievance at a later stage or during the appeal, brings inconvenience to the parties and frustrates the ends of justice on technical rule. Objections should not, therefore be raised for the first time in appeal.
15. On the basis of the plaint case, the allegations as made therein and the fact that the lease in question was for 21 years and the defendant 2 on 13-3-67, had an assignment in favour of the defendant 1 read and considered along with prayer (a) of the plaint, we feel that due and legal proof of the document (Ext. 5) was necessary, even in spite of the determinations as indicated hereinbefore and that too in terms of the provisions of the Evidence Act and more particularly when in the case of Nityananda Roy v. Rashbehari Roy, , it has been observed that in order that secondary evidence of documents mentioned in Section 65(a) may be given, it is essential that the procedure laid down in Section 66 should be strictly complied with. Where no notice as required by Section 66 is given, the secondary evidence is not admissible. In this case, admittedly the secondary evidence of Exhibit 5, was sought to be produced or led in evidence by P.W. 1, without duly requiring either the defendant No. 2 or the defendant 1, to produce the original thereof. Such being the position, we are of the view that since the provision of Section 66of the Evidence Act has not been complied with, Exhibit 5 was not appropriately taken into evidence.
16. Then, we come to another piece of evidence (Ext. 1), the deed of lease. Admittedly, the original of the same was not appropriately proved, but a copy was sought to be tendered and there is no statement about due searches, which were required to be made by the plaintiffs. That being the position and since there had been no explanation about such and due searches, agreeing with Mr. Roy Choudhury. we feel and observe that under Section 65(c) of the Evidence Act, the same was also appropriately taken into evidence. In support of the submissions as above, Mr. Roy Choudhary, firstly referred to the case of Smt. Bobba Suramma v. Smt. Peddireddi Chandramma, , where it has been observed that secondary evidence can be led in under Section 65, only in certain circumstances, one of which is that when the original has been destroyed or lost, apart from observing that in order to claim the benefits of Section 65, there should be credible evidence of the loss of the original and there must be sufficient proof of the search for the original, to render secondary evidence admissible and thus, it may be established that the party has exhausted all the sources and means in the search of the documents which were available to him. While on the point, Mr. Roy Choudhary also had secondly, placed reliance on the observations in the case of Biswanath Agarwalla v. Smt. Dhapu Debi Jajodia, , where also, this Court has specifically laid down, while dealing with the question of loss of document and necessary proof thereof, that to record a finding that the document is lost and to enable a party to produce a certified copy thereof, it must be established that a thorough search had been made in places where it was likely to be found and of persons likely to have possession of the same. In this case, admittedly there was paucity of such evidence, as was necessary for the purpose of having the copies of the concerned documents tendered in evidence and that being the position, we feel that the copy of the deed which was marked as Exhibit 1, was also improper. We further feel that even if, in the fact and circumstances of the case, the parties before the learned Court below had not taken appropriate steps, the learned Court was also required or obliged in law to see at least that the exhibits, the particulars whereof have been indicated hereinbefore, were duly tendered and accepted in evidence and it is our view that the Court below has failed to discharge such obligation in the instant case.
17. That being the position, we feel that the submissions of Mr. Choudhary as indicated hereinbefore, were of substance and this appeal should be allowed, but such order must be on terms, because of the character and conduct, of the learned Advocate for defendant 1, the particulars whereof have been indicated hereinbefore, or the way and the manner in which he had prosecuted the proceedings before the learned Court below.
18. Before proposing our order, we must also keep it on record that Mr. Roy Choudhary, on instructions has informed the Court that his client, defendant 1, will not now insist on the examination of the said defendant 1 before the examination of the plaintiffs.
19. Such being the position, we allow this appeal and set aside the determination as made, since we are of the view, that there has been firstly no fair trial, and secondly, there has not been any appropriate decision on the issues, in terms of Order 14, Rule 2 of the Code. We thus direct that the learned Court below should now deal with, dispose of the proceeding and decide the case in accordance with law, after duly deciding the issues as framed and on the concessions made by Mr. Roy Choudhary, we also have it on record that the defendant 1 will not ask for her examination on commission before the examination of the plaintiffs.
20. Since we have indicated earlier, that even if we allow this appeal, that must be on terms, we direct that the appellants before us will have to pay costs assessed at five gold mohurs in the Court below to the credit of the plaintiff as condition precedent, before the suit is taken up for hearing, since we are of the view that because of their act or actions or the conduct of their learned Advocate, the respondents before us had to suffer.
21. The appeal is thus allowed. The judgment and decree as impeached are set aside and the case is sent back to the Court below for hearing and being disposed in terms of the directions as given.
22. There will be no other order for costs in this Court.
23. No decree need be prepared. Let this order be communicated to the Court below forthwith.
Amarendra Chandra Sengupta, J.

24. I agree.
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