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2014 DIGILAW 80 (CHH)

MOTIRAM v. RENUKA PODDAR

2014-02-21

SANJAY K.AGRAWAL

body2014
JUDGMENT 1. This is defendant's Second Appeal against the judgment and decree dated 03.02.2000 passed by 3rd Additional District Judge, Bastar, Jagdalpur in Civil Appeal No. 25-A/99, affirming the judgment and decree dated 18.3.1999 passed by Civil Judge, Class II, Kondagaon in Civil Suit No. 26-A/97 decreeing the plaintiff's suit. [For sake of convenience, the parties would be referred hereinafter as per their status before the trial Court.] 2. The plaintiffs namely Smt. Renuka Poddar & Smt. Shirobala, wife of Shri Ravindra Mohan Ghosh have filed suit for declaration and confirmation of possession stating inter alia that suit land Sheet No.2 Plot No.494/1, 495/2 out of which 15454 Square Feet were purchased by plaintiff No. 1 and husband of plaintiff No.2 Shri Ravindra Mohan Ghosh by registered sale deed dated 7.12.1966. Shri Ravindra Mohad Ghosh died on 24.10.1988 and the sale deed kept by Shri Ghosh got burnt and, thereafter, certified copy of the sale-deed has been obtained vide Ex.P-1c but the defendant No. 1 is denying and disputing their title over the scheduled suit land leading to filing of the suit for confirmation that sale deed dated 7.12.1966 is valid and also for confirmation of possession. 3. The trial Court decreed the plaintiffs' suit on the basis of sale deed (Ex.P-1) whereas the first appellate Court affirmed the same by dismissing the defendant's appeal. 4. Shri Vishnu Kosta, learned counsel appearing for the appellants would submit that the trial Court has committed grave legal error in admitting the document EX.P-1c i.e. certified copy of the sale deed as a piece of evidence in absence of the original sale deed, which was not produced by plaintiffs before the trial Court and no foundation was led for secondary evidence. He would further submit that the first appellate court has further committed illegality in dismissing the appeal filed by the defendant. 5. I have heard learned counsel appearing for the appellant and perused the records of both the courts below including judgment and decree impugned. 6. Order 13 Rule 4 of the Code of Civil Procedure reads as under:- 4. He would further submit that the first appellate court has further committed illegality in dismissing the appeal filed by the defendant. 5. I have heard learned counsel appearing for the appellant and perused the records of both the courts below including judgment and decree impugned. 6. Order 13 Rule 4 of the Code of Civil Procedure reads as under:- 4. Endorsement on documents admitted in evidence.-(1) Subject to the provisions of the next following sub-rule, there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars, namely:- (a) the number and title of the suit, (b) the name of the person producing the documents, (c) the date on which it was produced, and (d) a statement of its having been so admitted, and the endorsement shall be signed or initialled by the Judge. (2) Where a document so admitted is an entry in a book, account or record, and a copy thereof has been substituted for the original under the next following rule, the particulars aforesaid shall be endorsed on the copy and the endorsement thereon shall be signed or initiated by the Judge. 7. Order 13 Rule 4 of the CPC provides for every document admitted in evidence in the suit being endorsed by or on behalf of court, which endorsement signed or initialled by Judge amounts to admission of the document in evidence. An objection to the admissibility of document should be raised before such endorsement is made and court is obliged to form its opinion, on the question of admissibility and express the same on which opinion would depend the document being endorsed as admitted or not admitted in evidence. In the latter case, the document may be returned by the Court to the person from whose custody it was placed. 8. The Supreme Court in case R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple and another, (2003) 8 SCC 752 has occasion to classify the objections as to admissibility of documents in evidence in two classes namely : (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient and held as under:- "20. ......... ......... Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as "an exhibit", an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior of court. " 9. The aforesaid decision of Supreme Court in case of R.V.E. Venkatachala Gounder, (2003) 8 SCC 752 (supra) has been again approved and followed by the Supreme Court in case of Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee and others, (2009) 9 SCC 221 . 10. Having ascertained the legal position with regard to the sale-deed (Ex.P-1) in question, reverting back to the facts of the instant case, this case comes into the second category where dispute is with regard to mode of proof alleging that no foundation has been led for adducing second evidence. 11. As held in R.V.E. Venkatachala Gounder, (2003) 8 SCC 752 (supra), the defendant was required to raise the objection of admission of document (Ex.P-1) at the time of adducing evidence and when the said document was marked as an exhibit by the trial Court but no such objection was taken at the appropriate point of time that would have enabled the plaintiff to cure the defect and to adopt appropriate motive of proof that document but the same was not done. Thus, the defendant having raised no objection with regard to the admissibility of the said document by the defendants at the time of marking exhibit during trial. 12. The Supreme Court in case of P.C. Purushothama Reddiar Vs. S. Perumal reported in AIR 1972 SC 608 has held that once the document is marked and exhibited without any objection, it is not open to the respondent now to object their admissibility. Paragraphs 18 & 19 of the report as under:- (18) Before leaving this case it is necessary to refer to one of the contentions taken by Mr. Ramamurthi, learned Counsel for the respondent. He contended that the Police reports referred to earlier are inadmissible in evidence as the Head Constables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Ramamurthi, learned Counsel for the respondent. He contended that the Police reports referred to earlier are inadmissible in evidence as the Head Constables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it is not open to the respondent now, to object to their admissibility - See Bhagat Ram Vs. Khetu Ram, AIR 1929 PC 110. (19) It was next urged that even if the reports in question are admissible we cannot look into the contents of those documents. This contention is again acceptable. Once a document is properly admitted, the contents of that document are also admitted in evidence though those contents may not be conclusive evidence. 13. In view of above discussion, defendants did not raise any objection in marking of the certified copy of the sale deed (Ex.P-1c) at the time of evidence, now the defendants cannot be permitted to make objection with regard to admissibility of sale deed (Ex.P-1) in the second appeal and it was not admissible in evidence. 14. The said finding recorded by the trial Court has been affirmed by the first appellate Court. Thus, the concurrent findings recorded by both the courts below are finding of fact based on material available on record and I do not find it either perverse or contrary to record and no question of law much less substantial question of law is involved in this appeal. 15. Recently, the Supreme Court in the case of Vishwanath Agrawal, S/o Sitaram Agrawal Vs. Sarla Vishwanath Agrrawal, (2012) 7 SCC 288 has held that High Court should not disturb the concurrent finding of fact, unless finding recorded are perverse being based on no evidence. Para-36, 37 of report as under:- "36. In Major Singh Vs. Rattan Singh, (1997) 3 SCC 546 : AIR 1997 SC 1906 it has been observed that when the courts below had rejected and disbelieved the evidence on unacceptable grounds, it is the duty of the High Court to consider whether the reasons given by the courts below are sustainable in law while hearing an appeal under Section 100 of the Code of Civil Procedure. 37. In Vidhyadhan Vs. 37. In Vidhyadhan Vs. Manikrao, (1999) 3 SCC 573 it has been ruled that the High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recorded by the Courts below are pervere being based on no evidence or that on the evidence on record no reasonable person could have come to that conclusion. We may note here that solely because another view is possible on the basis of the evidence, the High Court would not be entitled to exercise the jurisdiction under Section 100 of the Code of Civil Procedure. This view of ours has been fortified by the decisions of this Court in Abdul Raheem Vs. Karnataka Electricity Board, (2007) 14 SCC 138 : AIR 2008 SC 956 ." 16. Keeping in view, the ratio of law laid down by the Supreme Court in the aforesaid case, the concurrent finding of fact recorded by both the courts below is based on evidence, no substantial question of law is involved in this appeal, thus appeal deserves to and accordingly dismissed at admission stage itself. No order as to cost. Appeal Dismissed.