Research › Search › Judgment

Rajasthan High Court · body

2002 DIGILAW 1327 (RAJ)

Hazarilal v. Shyam Lal

2002-07-30

PRAKASH TATIA

body2002
JUDGMENT 1. 1. In this appeal, the appellant has raised an important point of law with respect to the time of raising presumption under Section 90 of the Indian Evidence Act, 1872 (for short 'the Evidence Act'). 2. The relevant facts for the purpose of deciding this point are that a document alleged to have been executed on Migsar-sudi 15 Samvat Year 1987 by one Lala Chamar in favour of plaintiff Shyamlal's father Kanakmal. This document Ex.A.1 is one of the basis in the judgment of the trial court for deciding issue No.4 in favour of defendant No.1 for holding that defendant No.1 proved the fact that the disputed plot was mortgaged by Lala Chamar in favour of Kanakmal and since then the plot in dispute is in possession of defendant No.1. 3. While deciding issue no.4, the trial court in the judgment, at the request made during course of final arguments, raised the presumption under Section 90 of the Evidence Act 1872 with respect to the document Ex.-A.1 and held that since the document is more than 30 years old, therefore, presumption is raised with respect to the thumb impression of Lala over Ex,A.1 and document was found duly executed by Lala. 4. The learned counsel for the appellant submits that the presumption was raised in the judgment itself which could not have been raised for the reason that the defendant Shyam Lal availed the opportunity of proving the document Ex.A-1, produced the witnesses to prove the document and after failing in proving the document, all of sudden during the course of final argument before the trial court, made request to raise presumption under Section 90 of the Evidence Act. According to the learned counsel for the appellant, once a party undertakes to prove a document and lead evidence to prove the document then the party cannot ask for drawing inference under Section 90 of the Evidence Act and even if a presumption under Section 90 of the Evidence Act is permissible even then this presumption cannot be raised after evidence of the parties and while deciding the suit itself. 5. The learned counsel for the respondents vehemently submitted that a bare reading of Section 90 of the Evidence Act makes it clear that presumption under Section 90 can be raised at any stage and presumption under Section 90 is in the discretion of the court. 5. The learned counsel for the respondents vehemently submitted that a bare reading of Section 90 of the Evidence Act makes it clear that presumption under Section 90 can be raised at any stage and presumption under Section 90 is in the discretion of the court. When there is no limitation provided under the law for raising presumption under Section 90 of the Evidence Act then the court can raise presumption at any stage including at the time while deciding the suit and there is no requirement that presumption must be raised before evidence or cannot be raised after evidence, Requirement under Section 90 of the Evidence Act is only that (a) a document must be 30 years old and (b) produced from the proper custody (c) the court in its discretion thinks it proper to raise presumption. According to the learned counsel for the respondents, the respondents proved that the document is old more than 30 years and the document is coming from the proper custody and the trial court has exercised discretion in favour of the raising presumption under Section 90 of the Evidence Act, therefore, there is no illegality in it. 6. The learned counsel for the respondents heavily relied upon the judgment of this Court delivered in the case of Lalit Kishore v. Laxminarayan (1968 RLW 308) wherein the learned Single Judge of this Court as he then was, held that even when request to raise a presumption under Section 90 of the Evidence Act was made towards the close of the trial even then the court is not debarred from raising the presumption simply because the plaintiffs did not make their application earlier or led evidence to prove the execution of the document, The relevant portion is required to be quoted here which reads as under : "It is admitted however that even though the plaintiffs did not initially make an application requesting the trial court to raise a presumption u/sec. 90 of the Evidence Act regarding the genuineness of document Ex.2, they made such a request towards the close of the trial, and it cannot be said that the court was debarred from raising the presumption simply because the plaintiffs did not make their application earlier, or led evidence to prove the execution of the document. 90 of the Evidence Act regarding the genuineness of document Ex.2, they made such a request towards the close of the trial, and it cannot be said that the court was debarred from raising the presumption simply because the plaintiffs did not make their application earlier, or led evidence to prove the execution of the document. The correct view appears to be that in such a case if there is nothing to cast a doubt about the genuineness of the document, and if it cannot be said that the belated request for raising the presumption has caused any prejudice to the defendant, there is nothing to prevent the court from presuming the genuineness of the document under section 90 of the Evidence Act." 7. In another case Ayub & Ors. v. Bhanwar Chand & Ors. (ILR (1971) 21 Raj. 30) , presumption under section 90 of the Evidence Act was drawn at the time of final hearing of the suit and it was also held that, if there is no request from defendant to permit him to rebut the presumption, it is not necessary to grant permission to rebut the presumption. 8. The learned counsel for the respondents further relied upon the judgment delivered in the case of Rao Raja Tej Singh vs. Hastimal (1972 RLW 133) . The learned Single Judge of this Court while considering the point of presumption under Section 90 of the Evidence Act, considered the two earlier judgments of this Court delivered in the cases of Kanhaiyalal vs. Jamnalal (1950 RLW 199) and (5) Ramchandra vs. Usmangani (1953 RLW 153) and, thereafter, held as under : "In my humble view, the law is not to be construed in this regard as a penal provision. Once the party has made it known that he wants to rely on the presumption under section 90 of the Evidence Act and the document and the surrounding circumstances are such that a presumption under section 90 of the Evidence Act may justifiably be raised then the mere fact that the party has a witness or two in addition for proving the signature or the writing of the alleged executant will not always be a sufficient reason for not drawing the presumption. In the present case, on account of the document being a registered one and it having been produced from proper custody the presumption was rightly drawn by the trial court that the document was executed by Rao Raja Bhawani Singh by whom it have been executed" (emphasis supplied) 9. It is true that there are decisions of this Court which clearly say that presumption can be drawn under Section 90 of the Evidence Act even after leading evidence to prove the execution of the document and even the cases towards the close of trial. 10. In the light of the arguments of both the parties, the matter requires consideration. According to the learned counsel for the appellant, the judgments mentioned above, are not correct and require reconsideration whereas the learned counsel for the respondents submitted that once the decision has been given by this Court, the Single Bench of this court cannot take a contrary view on any count, like the matter was not considered properly or the arguments were not properly advanced before the Bench hearing the matter while deciding the above appeal. 11. In my view, this appeal involves an important point of law with respect to the raising presumption under Section 90 of the Evidence Act. For this, it will be relevant to see the procedure for the trial of the suit. 12. Under sub-rule (1) of Rule I of Order 14, Civil Procedure Code it is obligatory upon the court to frame issue when material proposition of fact or law is affirmed by the one party and denied by the other so that both the parties may know what are the questions of fact and what are the questions of law for which they are required to either prove or rebut. Sub-rule (2) of Rule 1ORDER14 says that material prepositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. Sub-rule (3) of Rule 1ORDER14 further enumerates that each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. Sub-rule (4) of Rule I of Order 14 says that issues are of two kinds : (a) issue of fact and (b) issues of law. 13. Sub-rule (3) of Rule 1ORDER14 further enumerates that each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. Sub-rule (4) of Rule I of Order 14 says that issues are of two kinds : (a) issue of fact and (b) issues of law. 13. How and from what matter the issues are to be framed is provided under Rule 3ORDER14, Civil Procedure Code. Sub-clause (c) of Rule 3ORDER14 provides that the Court may frame the issues from the contents of documents produced by either party. Not only this, rule 4 of Order 14 provides that where the court is of opinion that the issue cannot be correctly framed without the inspection of some document even not produced in the suit, it may adjourn the framing of the issues to a future day, and may compel the production of any document by the person in whose possession or power it is. 14. It appears from the above provision that while framing issues, the court may require to look into the documents produced by the party and there is requirement under Order 13 Rule 1 Civil Procedure Code to produce all the documentary evidence, of every description which is in possession of party and which party intends to rely, before the settlement of issues and as per sub-rule (1) of Rule 2ORDER13, Civil Procedure Code, production of documentary evidence, which was in power and possession of the party and has not been produced before settlement of issues then the party cannot produce the documentary evidence without assigning any reason to the satisfaction of the court. Rule 1ORDER18, Civil Procedure Code provides that the plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff, whereas Rule 2ORDER18 provides that the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove and, therefore, other party shall state his case and produce his evidence. 15. The above provisions show that the parties relying upon the documentary evidence are required to place the documents on record before the court before settlement of issues so that the court may frame the issues. While framing of issues, the court is required to determine placing of burden to prove the issues. 15. The above provisions show that the parties relying upon the documentary evidence are required to place the documents on record before the court before settlement of issues so that the court may frame the issues. While framing of issues, the court is required to determine placing of burden to prove the issues. When a burden is placed upon a party, unless and until he discharges his burden by any mode, by producing evidence to prove the fact or by seeking benefit of any provisions of law like Section 90 Evidence Act, neither the other party can rebut nor can be called upon to rebut the evidence of the party alleging the fact. Therefore, even when there is no period given under Section 90 of the Evidence Act, the request for raising presumption under Section 90 of the Evidence Act should be made to the court before settlement of the issues so that a proper issue can be framed putting proper burden upon the parties so that the each party may know that who is required to prove and who is required to rebut the fact, which will make them aware with respect to their right to begin and right to rebut. 16. Section 56 of the Evidence Act provides that no fact of which the court will take judicial notice need be proved. Section 57 enumerates facts for which the court is required to take judicial notice. The presumption under Section 90 of the Evidence Act does not fall under the provisions of Section 57 so as to require the court to take judicial notice of fact and the fact is not required to be proved. The subject of presumption as to the document has been dealt with in Sections 79 to 90 of the Evidence Act. The presumption under Sections 79 to 85 are having the language of saying that the court shall presume", whereas for the presumption under sections 86 to 90, it is said that "the court may presume". This also suggests that the presumption under Section 90 of the Evidence Act is rebuttable presumption and this stands to a sound reason also. 17. The presumption under Sections 79 to 85 are having the language of saying that the court shall presume", whereas for the presumption under sections 86 to 90, it is said that "the court may presume". This also suggests that the presumption under Section 90 of the Evidence Act is rebuttable presumption and this stands to a sound reason also. 17. In view of the above discussion, if it is held that the presumption can be drawn after the trial of the suit upto the stage of closure of evidence then the person against whom the presumption with respect to the document under Section 90 of the Evidence Act is to be raised, will have no opportunity to rebut the presumption drawn under Section 90 of the Evidence Act which will amount to denying right of rebuttal to the person against whom the documentary evidence is to be used which will be contrary to sub-rule (2) of Rule 2ORDER18, Civil Procedure Code which provides that the other party shall then state his case and produce his evidence. 18. If proper issue is not framed and burden is not placed properly and when plaintiff is setting up the document which is old more than 30 years and presumption is not drawn before his evidence, how, the plaintiff will know that whether the court in its discretion, will draw a presumption in his favour or not. In absence of it, the plaintiff cannot take risk of not proving the document by leading the evidence to prove the document after which either there will be no need for the plaintiff to take benefit of presumption under Section 90 of the Evidence Act or it will be a benefit to the party who fails in proving a fact by positive evidence. And, if the plaintiff is under assumption that the court will raise presumption of due execution of the document and did not produce any evidence to prove the document and if after closure of the evidence the court refuses to draw presumption of the execution of the document, the plaintiff will lose his right to prove document by positive evidence. 19. 19. In the same way if the party desiring to rely upon the document has not led any evidence to prove the document, the contesting party need not to produce evidence to rebuttal as there is no evidence in existence which is required to be rebutted and if presumption will be raised in favour of due execution of the document after defendant's evidence, he will not have any opportunity to rebut the presumption causing serious prejudice to the defendant. 20. Rule 3ORDER18, Civil Procedure Code provides that where there are several issues, the burden of some of which lies upon the other party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party. Therefore, if issue is framed putting burden upon the party to prove a document and presumption s drawn in favour of that party, the other party will have right to begin on that issue and the party setting up document having presumption under Section 90 of the Evidence Act, may reserve its right to produce evidence after the evidence of party contesting the document. Therefore, by raising a presumption at proper time. (1) issues will be framed properly placing the burden to prove the document or to rebut the document clearly. (2) raising a presumption at proper time will be in consonance with the various provisions of the Code of Civil Procedure as well as the Indian Evidence Act, 1872 referred above and the party against whom document is set up and presumption is drawn will not be deprived of his right to rebut presumption which cannot be available to the party against whom presumption has been drawn after the closure of evidence or in the judgment itself. (3) In absence of raising presumption at proper time, both the parties will be caught unaware in a trap from for no fault of them with irreversible position. 21. In view of the above reasoning, I deem it proper that the matter involves important questions of law and the judgment delivered in the cases of Lalit Kishore vs. Laxminarayan (supra), Ayub and others vs. Bhanwar Chand and others (supra) and Rao Raja Tel Singh vs. Hastimal (supra) are required to be reconsidered by the Bench larger than the Bench deciding the above cases. Therefore, the matter may be placed before Hon'ble the Chief justice for placing the matter before the appropriate Bench to decide : Whether the law laid down in the judgments of Lalit Kishore vs. Laxminarayan (1968 RLW 308) , Ayub & Ors. vs. Bhanwar Chand & Ors. (ILR (1971) 21 Raj. 30) and Rao Raja Tej Singh vs. Hastimal (1972 RLW 133) is correct law and what can be the stage at which presumption can be raised under Section 90 of the Indian Evidence Act, 1872 and any matter which may be found relevant for just decision of the case relating to the raising presumption under Section 90 of the Indian Evidence Act by the appropriate Bench. Matter referred for being Considered by larger bench. *******