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Rajasthan High Court · body

2014 DIGILAW 749 (RAJ)

Priti Choudhary v. Dau Singh

2014-03-21

SANGEET LODHA

body2014
JUDGMENT 1. - This writ petition is directed against order dated 11.7.11 passed by the Additional District Judge (F.T.) No. 2, Jodhpur in Civil Original Case No.30/10, rejecting an application preferred by the plaintiffs/petitioners under Order 16, Rule 5 read with Section 151 CPC. 2. The relevant facts are that the plaintiff-Manmohan Dayal Sharma, now represented by his legal representatives the petitioner no. 1 & 2 herein, preferred a suit for possession, mesne profit and permanent injunction in respect of plot no.40 situated at Mandore Road, Jodhpur, alleged to have been gifted by its owner Nenu Ram s/o Chhoga Ram in favour of his daughter Anoop Kanwar, by way of a registered gift deed dated 18.3.44. 3. The suit is being contested by the respondents-defendants taking the stand that the gift deed alleged to have been executed by Nenu Ram in favour of Anoop Kanwar is a forged document, which does not bear signature of its executor. Since the original gift deed was not available, the plaintiffs obtained certified copy thereof from the Department of Registration and made an application under Section 65 of Evidence Act, 1872 (for short "the Act of 1872"), before the trial court seeking leave to produce the same as secondary evidence. The application was allowed by the trial court vide order dated 20.2.09 and accordingly, certified copy of the gift deed was admitted in evidence and permitted to mark exhibit thereon, with the clarification that the permission being granted as aforesaid shall not lead to the conclusion that the gift deed dated 18.3.44 stands proved in accordance with law and the question with regard to genuineness of the gift deed shall be decided on the basis of the evidence to be led by the parties. 4. During the cross examination of the petitioner no. 1 herein, yet another application was preferred on behalf of the plaintiffs under Order 16, Rule 5 for summoning the original register from the office of the Sub Registrar, Jodhpur, wherein the gift deed was entered. The application was contested by the defendant no.1, the respondent no.1 herein, by filing a reply thereto. The application was rejected by the court vide order dated 11.7.11. The application was contested by the defendant no.1, the respondent no.1 herein, by filing a reply thereto. The application was rejected by the court vide order dated 11.7.11. In these circumstances, the petitioner moved an application under Section 90 of the Act to draw presumption regarding the genuineness of the gift deed, being a document more than 30 years old, a certified copy whereof was obtained from the public authority concerned. The application was rejected by the court vide order dated 9.12.11. Hence, this petition assailing the order dated 11.7.11 passed by the court refusing to summon the document, as prayed for. 5. It is pertinent to note that before the court below the petitioners had prayed for summoning the register from the Department of Registration in respect of the gift deed dated 18.3.44 as well as the sale deed dated 15.12.62 alleged to have been executed by Smt. Mohan Pyari in favour of Shri Deen Dayal, however, the challenge in the writ petition is confined to refusal to summon the register relating to the entry of gift deed dated 18.3.44. 6. Learned counsel for the petitioners submitted that there remains no dispute regarding the existence of the gift deed dated 18.3.44 inasmuch as, entry thereof is there in the register maintained by the Department of Registration and a certified copy thereof has already been permitted to be tendered in evidence by the court. Learned counsel submitted that in absence of the original document, the register maintained by the Department of Registration wherein the original document was entered at the time of registration is the only evidence which can prove genuineness of the gift deed and therefore, in the interest of justice, it is absolutely necessary to summon the original register from the Department of Registration to prove the entries contained therein. Learned counsel submitted that the court below has seriously erred in rejecting the application observing that the application has been preferred with an intention to protract the litigation. Learned counsel urged that the finding recorded by the court below regarding lack of bona fides on the part of the plaintiffs is ex facie perverse. Learned counsel submitted that if the original register as prayed for is not summoned, it will amount to denying the petitioner right to lead evidence in the suit and therefore, the order impugned passed by the trial court is ex facie arbitrary. 7. Learned counsel submitted that if the original register as prayed for is not summoned, it will amount to denying the petitioner right to lead evidence in the suit and therefore, the order impugned passed by the trial court is ex facie arbitrary. 7. On the other hand, counsel appearing for the respondents submitted that the court is not under an obligation to summon the documents on mere asking by the party to the proceedings. Learned counsel submitted that if the application preferred under Order 16, Rule 5 CPC lacks bona fides, the same can always be rejected by the court. Learned counsel submitted that even while permitting the plaintiffs to produce the certified copy of the gift deed as secondary evidence, it was clarified by the court below in unequivocal terms that the permission granted to exhibit the certified copy of the gift deed in evidence shall not lead to the conclusion that the gift deed stands proved. Learned counsel submitted that the application preferred by the petitioners to draw presumption regarding genuineness of the gift deed already stands rejected by the court below and even on the basis of the entry made in the register maintained by the Department of Registration, no such presumption can be drawn and therefore, apparently, the application preferred is only a delaying tactics adopted by the petitioners. Accordingly, learned counsel submitted that on the facts and in the circumstances of the case, the order impugned passed by the court below refusing to summon the document as prayed for does not suffer from any jurisdictional error so as to warrant interference by this court. 8. I have considered the rival submissions and perused the material on record. 9. It is to be noticed that the endorsement made by the registering officer on the documents admitted to registration in terms of provisions of Section 58 of the Registration Act, 1908 ( for short "the Act of 1908") and certificate endorsed thereon in terms of Section 60 of the Act of 1908 is admissible for the purpose of proving that document has been duly registered in manner provided by the Act of 1908 and the facts mentioned in the endorsement, referred to in Section 59 have occurred as mentioned therein. 10. 10. Admittedly, the petitioners have already been permitted by the trial court to tender the certified copy of the gift deed issued by the Sub Registrar, in evidence which already stands exhibited. Under Section 79 of the Act of 1872, the court is bound to draw presumption that the certified copy of the document duly certified by an officer of the Government duly authorised is genuine and that the officer signed it in the official character which he claimed in the said document. But then, the registration of the document and the certified copy thereof produced could be construed to be the evidence of existence conditions and contents of the document but not of its execution which is required to be proved in the manner provided under Section 67 & 68 of the Act of 1872. Thus, the certified copy of the document bearing the endorsement of the registering authority having already been admitted in evidence and no presumption beyond the scope of provisions of Section 58 & 60 of the Act of 1908, could be drawn on the basis of the entries effected in the register maintained by the Department of Registration and therefore, no fruitful purpose shall be served in summoning the original register, as prayed for on behalf of the petitioners. 11. In this view of the matter, in the considered opinion of this court, the order impugned passed by the court below rejecting the application preferred by the petitioners herein under Order 16, Rule 5 CPC does not suffer from any jurisdictional error so as to warrant interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 12. In the result, the petition fails, it is hereby dismissed. No order as to costs.Petition Dismissed. *******