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2019 DIGILAW 1654 (HP)

Dhani Ram v. Khem Chand

2019-11-06

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. 1. Even though this appeal stands formally admitted on certain substantial questions of law, however, the same need not be answered in view of the nature of the order, I propose to pass. 2. The plaintiff/respondent (hereinafter to be referred as the plaintiff) filed a suit for permanent prohibitory and mandatory injunction which was dismissed by the learned trial Court, however, the judgment and decree passed by it has been set aside by the learned first appellate Court only for the reasons as set out in para-23 of the judgment which reads as under: "23. The another submission of Ld. Advocate appearing on behalf of the respondent that on the basis of compromise Ex. DW1/A placed on record which was executed between the father of appellant and respondent, the present appeal is liable to be dismissed is also rejected being devoid of any force for the reasons hereinafter mentioned. The respondent did not place on record the original document of compromise Ex. DW1/A. The respondent has simply placed on record the photostat copy of compromise dated 6-6-1982. It is well settled law that document is to be proved by way of primary evidence as per Section 64 of Indian Evidence Act. The respondent did not seek permission of the Court to prove document Ex. DW1/A by way of secondary evidence as required under Section 65 of Indian Evidence Act. No reason has been assigned by the respondent as to why the original compromise Ex. DW1/A not placed on record. Even compromise Ex. DW1/A was not executed by the appellant in person but was executed by the father of the appellant as alleged by respondent." 3. It is not in dispute that the defendant while filing written statement had specifically set up the plea of compromise and while filing replication, the plaintiff did not even deny that no settlement or compromise has been arrived at and the only defence taken was that the suit land was not mentioned in the document. Moreover, no objection was taken at the time when the compromise came to be exhibited in the testimony of DW-1. Not only this, the plaintiff cross examined all the witnesses including the defendant on the basis of the photocopy of the compromise Ex. Moreover, no objection was taken at the time when the compromise came to be exhibited in the testimony of DW-1. Not only this, the plaintiff cross examined all the witnesses including the defendant on the basis of the photocopy of the compromise Ex. DW1/A. Therefore, in such circumstances, it was not open for the learned first appellate Court to have held the compromise to be inadmissible in evidence. 4. In taking this view, this Court is supported by the judgment of the Hon'ble Supreme Court in R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami and V.P. Temple and Another, (2003) 8 SCC 752 , wherein it was held as under: "16. One document Ext. A-30 is the photocopy of a certified copy of the decision given by Charity Commissioner. This document was tendered in evidence and marked as an exhibit without any objection by the defendants when this was done. The plaintiff has in his statement deposed and made it clear that the certified copy, though available, was placed on the record of another legal proceedings and, therefore, in the present proceedings he was tendering the photocopy. There is no challenge to this part of the statement of the plaintiff. If only the tendering of the photocopy would have been objected to by the defendant, the plaintiff would have then and there sought for the leave of the Court either for tendering in evidence a certified copy freshly obtained or else would have summoned the record of the other legal proceedings with the certified copy available on record for the perusal of the Court. It is not disputed that the order of Charity Commissioner is a public document admissible in evidence without formal proof and certified copy of the document is admissible in evidence for the purpose of proving the existence and contents of the original. An order of Charity Commissioner is not per se the evidence of title inasmuch as the Charity Commissioner is not under the law competent to adjudicate upon questions of title relating to immovable property which determination lies within the domain of a Civil Court. However, still the order has relevance as evidence to show that the property forming subject matter of the order of the Charity Commissioner was claimed by the temple to be its property but the temple failed in proving its claim. However, still the order has relevance as evidence to show that the property forming subject matter of the order of the Charity Commissioner was claimed by the temple to be its property but the temple failed in proving its claim. If only the claimant temple would have succeeded, the item of the property would have been directed by the Charity Commissioner to be entered into records as property of the charity, i.e. the temple, which finding and the entry so made, unless dislodged, would have achieved a finality. On the contrary, the appellant herein, who claimed the property to be his and not belonging to the charity, succeeded in the claim asserted by him. 17. The other document is the rent note executed by defendant No. 2 in favour of plaintiff. Here also photocopy of the rent note was produced. The defendant No. 2 when in witness box was confronted with this document and he admitted to have executed this document in favour of the plaintiff and also admitted the existence of his signature on the document. It is nobody's case that the original rent note was not admissible in evidence. However, secondary evidence was allowed to be adduced without any objection and even in the absence of a foundation for admitting secondary evidence having been laid by the plaintiff. 18. The abovesaid facts have been stated by us in somewhat such details as would have been otherwise unnecessary, only for the purpose of demonstrating that the objection raised by the defendant-appellant before the High Court related not to the admissibility of the documentary evidence but to the mode and method of proof thereof. 19. Order 13 Rule 4 of the CPC provides for every document admitted in evidence in the suit being endorsed by or on behalf of the Court, which endorsement signed or initialed by the Judge amounts to admission of the document in evidence. An objection to the admissibility of the document should be raised before such endorsement is made and the 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 produced. 20. In the latter case, the document may be returned by the Court to the person from whose custody it was produced. 20. The learned counsel for the defendant-respondent has relied on The Roman Catholic Mission vs. State of Madras and Another, (1966) AIR SC 1457 in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. 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 before the evidence is tendered and once the document has been admitted in evidence and marked as an 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 later 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 about the mode of proof. 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 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. Out of the two types of objections, referred to hereinabove, in the later 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 superior Court. 21. Privy Council in Padman and Others vs. Hanwanta and Others, (1915) AIR PC 111 did not permit the appellant to take objection to the admissibility of a registered copy of a will in appeal for the first time. It was held that this objection should have been taken in the trial court. It was observed: (AIR p. 112) "The defendants have now appeal to the Majesty in Council, and the case has been argued on their behalf in great detail. It was urged in the course of the argument that a registered copy of the will of 1898 was admitted in evidence without sufficient foundation being led for its admission. No objection, however, appears to have been taken in the first court against the copy obtained from the Registrar's office being put in evidence. Had such objection being made at the time, the District Judge, who tried the case in the first instance, would probably have seen that the deficiency was supplied. Their lordships think that there is no substance in the present contention." 22. Had such objection being made at the time, the District Judge, who tried the case in the first instance, would probably have seen that the deficiency was supplied. Their lordships think that there is no substance in the present contention." 22. Similar is the view expressed by this Court in P.C. Purushothama Reddiar vs. S. Perumal, (1972) 2 SCR 646 . In this case the police reports were admitted in evidence without any objection and the objection was sought to be taken in appeal regarding the admissibility of the reports. Rejecting the contention it was observed: (SCC p. 15, para 19) "19. Before leaving this case it is necessary to refer to one of the contention 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. Hence it is not open to the respondent now to object to their admissibility. Bhagat Ram vs. Khetu Ram and Another, (1929) AIR PC 110." 23. Since documents Exts. A-30 and A-34 were admitted in evidence without any objection, the High Court erred in holding that these documents were inadmissible being photo copies, the originals of which were not produced. 24. So is the observation of the High Court that the photocopy of the rent note was not readable. The photocopy was admitted in evidence, as already stated. It was read by the trial court as also by the first Appellate Court. None of the said two courts appear to have felt any difficulty in reading the document and understanding and appreciating its contents. May be, that the copy had fainted by the time the matter came up for hearing before the High Court. The High Court if it felt any difficulty in comfortable reading of the document then should have said so at the time of hearing and afforded the parties an opportunity of either producing the original or a readable copy of the document. Nothing such was done. The High Court has not even doubted the factum of the contents of the document having been read by the two courts below, drawn deductions therefrom and based their finding of fact on this document as well. Nothing such was done. The High Court has not even doubted the factum of the contents of the document having been read by the two courts below, drawn deductions therefrom and based their finding of fact on this document as well. All that the High Court has said is that the document was inadmissible in evidence being a photocopy and with that view we have already expressed our disagreement. Nothing, therefore, turns on the observation of the High Court that the document was not readable when the matter came up for hearing before it. 25. Exhibit A-34 is a decision of the Deputy Commissioner in exercise of his jurisdiction under the Act. He has recorded a finding that the temple is not the owner of the property in dispute. This decision has become final between the parties. This document has relevance at least to the extent that the temple was held by Charity Commissioner to be not the owner of the property. Consequence of this would be that the attornment by the tenant in favour of temple during the continuance of tenancy in favour of the appellant was not valid. Defendant No. 2 had attorned as a tenant to temple treating the latter to be the owner which it could not do as he was inducted as tenant by the appellant and the estoppel flowing from Section 116 of the Evidence Act operated against him." 5. To similar effect is a recent judgment of the Hon'ble Supreme Court in Sonu alias Amar vs. State of Haryana, (2017) AIR SC 3441, wherein it was observed as under: "26. That an electronic record is not admissible unless it is accompanied by a certificate as contemplated under Section 65B (4) of the Indian Evidence Act is no more res integra. The question that falls for our consideration in this case is the permissibility of an objection regarding inadmissibility at this stage. Admittedly, no objection was taken when the CDRs were adduced in evidence before the Trial Court. It does not appear from the record that any such objection was taken even at the appellate stage before the High Court. The question that falls for our consideration in this case is the permissibility of an objection regarding inadmissibility at this stage. Admittedly, no objection was taken when the CDRs were adduced in evidence before the Trial Court. It does not appear from the record that any such objection was taken even at the appellate stage before the High Court. In Gopal Das vs. Sri Thakurji, (1943) AIR PC 83, it was held that: "Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of Appeal and then complain for the first time of the mode of proof." In RVE Venkatachala Gounder, (2003) AIR SC 4548 this Court held as follows: "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 before the evidence is tendered and once the document has been admitted in evidence and marked as an 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 later proposition is a rule of fair play. The later 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 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. Out of the two types of objections, referred to hereinabove, in the later 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 superior Court." (Emphasis supplied) It would be relevant to refer to another case decided by this Court in P.C. Purshothama Reddiar vs. S. Perumal, (1972) 1 SCC 9 . The earlier cases referred to are civil cases while this case pertains to police reports being admitted in evidence without objection during the trial. This Court did not permit such an objection to be taken at the appellate stage by holding that: "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." 6. In view of the aforesaid discussion, the judgment and decree passed by the learned first appellate Court on 15.11.2008 cannot withstand judicial scrutiny and are accordingly set aside and the case is remanded back to the learned first appellate Court for decision afresh in accordance with law. 7. The parties through their counsel's are directed to appear before the learned first appellate Court on 27.11.2019. 8. Since the suit, out of which the instant appeal emanates, was filed more than 14 years back, therefore, the learned first appellate Court is requested to decide the same as expeditiously as possible and in no event later than 31st March, 2020. 9. The records of the case be transmitted to the concerned Courts forthwith by the Registry of this Court. 10. The appeal is disposed of in the aforesaid terms, so also the pending applications, if any.