HARAKANTA DAS vs DIMBESWAR DAS

1.This second appeal by the plaintiffs is filed against the judgment and decree dated 31.03.2007 passed by learned Civil Judge, Senior Division, Guwahati in T.A. No. 77/2005, whereby learned Civil Judge, dismissing the appeal of the plaintiffs, upheld the judgment and decree passed by learned Civil Judge, Junior Division No. 3, Guwahati in T.S. No. 237/2002.

The facts giving rise to the present second appeal may briefly be stated thus : The appellant herein, as plaintiff, filed T.S. No. 237/02 for declaration that the agreement dated 29.09.01 executed between the plaintiffs and defendant, was binding on the parties, and for mandatory injunction.

The pleaded case of the plaintiffs was that the land measuring 1 K 10 L covered by Dag No. 156 and K.P. Patta No. 47 was inherited by the plaintiffs and the defendant and the suit land was partitioned amongst the plaintiffs and the defendant in the Perfect Partition Case No. 300 (ka)/98.

As per the said partition, the plaintiff No. 1 and defendant got 9L each and plaintiff No. 2 got 12 L of land. Thereafter, a written agreement was executed amongst the plaintiffs and the defendant and as per clause IV of the said agreement, the defendant was to dismantle the portion of the old Assam Type House occupied by him, in order to facilitate construction of the new house. Although the land was already partitioned amongst three brothers and agreement dtd. 29.9.2001 was executed between them for giving full effect to such partition, the defendant was reluctant to dismantle the old house. Rather, he tried to demarcate the land afresh according to his own convenience and therefore, the plaintiff filed the suit for declaration, that the agreement entered into between the defendant and plaintiffs were binding on both the parties, and also for mandatory injunction.

The pleaded case of the defendant was that his signature in the said agreement dated 29.9.01 was taken by fraud and misrepresentation and he signed in the agreement without knowing the terms of the agreement. The defendant also put a counter claim seeking declaration of his right over 9 L of land and also for permanent injunction restraining the plaintiffs from dispossessing the defendant from his share of land. The plaintiffs filed written statement denying the counter claim. On the basis of the above pleadings of the parties, learned Civil Judge {Junior Division) framed the following

issues : -

Whether there is cause of action for the suit and for the counter claim ?

Whether the agreement dated 29.9.01 is legal and valid ?

3.Whether the plaintiff is entitled to the relief as claimed for ?

Whether the defendant is entitled to a decree as per his counter- claim?

Both the parties adduced evidence and after hearing the parties, learned Civil Judge (Junior Division) dismissed the suit of the plaintiffs and decreed the counter claim of the defendant. Aggrieved, the plaintiffs preferred appeal before the learned Civil Judge (Senior Division), which was also dismissed.

Aggrieved by the judgment and decree passed by appellant court, the plaintiff preferred the instant second appeal, which was admitted to be heard on the following substantial questions of law :-

Whether the exhibit -3 agreement having been admitted into evidence without any objection from the defendant, could be rejected as inadmissible in evidence ?

Learned counsel, Mr. S.K. Ghosh for the appellant was heard. None appeared for the respondent.

Learned counsel, Mr. Ghosh submitted that the certified copy of the agreement was proved as exhibit-3 and no objection was raised by the defendant as to its admissibility at the time of tendering the certified copy in evidence and therefore, learned trial court as well the appellate court ought not to have rejected the certified copy exhibit- 3 holding it to be inadmissible.

The plaintiff exhibited the certified copy of agreement dated 29.9.01 and marked as exhibit-3. There is no material on record to show that any objection was raised as to admissibility of the exhibit- 3 at the time of admitting the same. However, both the courts below discarded exhibit- 3, holding it to be inadmissible in evidence. The reason given by the learned first appellate court for rejecting the exhibit- 3, was that before tendering the exhibit- 3 in evidence, the necessary requirements u/s 65 of the Evidence Act were not complied. The learned trial court rejected the exhibit-3, the certified copy of the registered agreement holding that the plaintiff failed to prove the signatures of the executants and the witnesses on the agreement by producing the original agreement.

Section 64 of the Evidence Act provides that a document must be proved by primary evidence, i.e., the document itself, except in cases, where secondary evidence is admissible.

Sub-section (2) of Section 74 of the Evidence Act provides that public record kept in any state of private document is a secondary evidence.

Section 63 of the Evidence Act provides that certified copies given under the provision of this Act are admissible in evidence. Therefore, an instrument when registered, and record of which, is kept in any state, certified copy of such instrument is admissible in evidence in view of Section 63 read with Section 74 Sub-Section (2) of the Evidence Act. Certified copy of a registered instrument falls in the category of document covered by Section 74 (2) of the Evidence Act and is certainly admissible. Of course, what shall be probative value of such certified copy is altogether a different issue.

It is the settled position of law, that where the objection as to the admissibility of a document pertaining to mode of proof is not raised at the initial stage when the document was tendered in evidence and marked as exhibit, objection as to admissibility of such document as to mode of proof cannot be raised at a later stage. In Gopal Vs. C. Takurji reported in AIR 1943 Privy Council, it was held, that where the objection is not that the document is inadmissible but that the mode of proof is irregular or insufficient, the objection should be taken at the beginning of trial.

The Apex Court in RVE Venkatachala Gounder —VS- Arulmigu Viswesaraswami & V.P. Temple reported in (2003) 8 SCC 752, while dealing with the admissibility of document and scope of raising objection as to admissibility of a document held as under :-

The learned counsel for the defendant- respondent has relied on Roman Catholic Mission VS- State of Madras in support of his submission that a document is 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 above said 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 later case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that is 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 enable the party tendering the evidence to cure the defect and resort to such 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 latter case, failure to raise a prompt and timely objections amounts to waiver of the necessary 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 court.”

From the above ratio laid down by the Apex Court it is clear, that objection that a secondary evidence is itself inadmissible, can be raised at any stage; whereas, when the objection does not relate to the inadmissibility of the document itself, but is directed towards the mode of proof or as to formalities required to be followed before giving the secondary evidence, objection has to be raised at the initial stage, and if, such objection is not raised at the initial stage, and the document is admitted in evidence, without any objection, such document cannot be rejected on the ground that procedural formalities before adducing the secondary evidence was not complied with.

Section 65 of the Evidence Act provides seven contingencies, under which secondary evidence can be given of the existence condition and contents of a document. The provision of Section 65 is rather, exception to the general rule of proving a document by primary evidence under section 64 of the Evidence Act. A party seeking to adduce secondary evidence needs to show that he is entitled to adduce secondary evidence for any of the reason enumerated in Section 65 of the Evidence Act. No doubt, Section 65 of the Evidence Act provides only procedural formalities to be satisfied before adducing a secondary evidence, which can also be relaxed by the court. Therefore, when a party adduces secondary evidence, even without proving the circumstances entitling him to give secondary evidence, objection if any, as to admissibility pertaining to mode of proof must be raised at the time when the secondary evidence is adduced and marked as exhibit. If such objection is not raised at the initial stage when the document is tendered, it is not permissible to raise such objection at a later stage. Therefore, procedural formalities provided by Section 65 of the Evidence Act, even if not followed and document is admitted without any objection to that effect, the document cannot be held to be inadmissible on the ground of not complying with the procedural formalities provided u/s 65 of the Evidence Act.

In the present case, document proved as secondary evidence was the certified copy of a registered agreement, which was admissible in view or section 63 and section 74 (2) of the Evidence Act. Evidently Ext.-3 certified copy of the registered agreement was admitted in evidence without any objection. When there was no objection at the time of proving the exhibit -3, certified copy of the agreement, finding of the learned first appellate court discarding the exhibit -3, holding it to be inadmissible, for not complying with the procedural formalities as provided under Section 65 of the Act, was contrary to the established proposition of law as indicated above, reason being that certified copy of a registered document does not fall in the category of document which is otherwise inadmissible or to put it differently, the exhibit -3 was a legally admissible document u/s 74 (2) of the Evidence Act.

The specific case of the plaintiff was that the agreement was executed between the plaintiffs and defendant and the plaintiff duly proved the certificate copy of the agreement as Ext. 3 without any objection. The execution of the agreement was not denied by the defendant. Signature in the agreement, of which the certified copy was proved, was also not disputed by the executants and the attesting witnesses of the defendant, inasmuch as, the plea of the defendant was that the signature of the defendant was taken by fraud and misrepresentation. Surprisingly the defendant did not come to the witness box to prove his plea of fraud and misrepresentation. However, attorney of the defendant was examined as DW 1.

It is the settled position of law that an attorney of the party cannot depose of the fact which is within the exclusive knowledge of the principal or the party. When the plea of the defendant was that his signature was taken by fraud and misrepresentation, it was only the defendant himself, who could prove such plea. But in the instant case, the defendant did not come to the witness box. When there was no dispute as regards the signature of the defendant and also the attesting witnesses on the agreement in question, though defendant took a stand in the W/S that his signature was obtained by fraud and misrepresentation and the witnesses stated that their signature were taken on a blank paper, meaning thereby the signature on the agreement in question was not in dispute. Only dispute raised by the defendant was that the signature of the executants and the witnesses were taken by fraud and misrepresentation.

Be that as it may, when there was no dispute as to the signature of the parties on the agreement, the learned courts below fell in grave error, by rejecting the certified copy of the agreement, exhibit —3, on the ground that the plaintiff failed to prove the signature of the executants and the witnesses by producing the original document or that the formalities or Section 65 of the Evidence Act was not complied with. Both the trial court as well as the appellate court appears to have failed to address the real issue involved in the instant case, i.e., whether the agreement, of which enforcement was sought by the plaintiff, was fraudulent or not. Both the courts below appears to have failed to appreciate the real controversy involved in the suit and fell in grave error by rejecting the Ext. 3 to be inadmissible on the grounds which were not tenable in law as indicated above.

Therefore, the substantial question of law is answered accordingly in negative.

The plaintiff having brought the suit for declaration that the agreement dated 29.09.01 was binding on the parties and defendant came with a specific plea that such agreement was fraudulent, as signature of the defendant was taken by misrepresentation and both the trial court as well as the appellate court, having failed to decide the real issue in controversy, as to whether the agreement was fraudulent or genuine, this Court is of the view, that it would be in the fitness of the matter to remand back the case to the first appellate court to decide the issue raised in the suit as to whether the agreement, of which enforcement is sought by the plaintiff, was genuine and enforceable in law. Accordingly, the impugned judgment dated 31.03.2007 passed by learned Civil Judge, Senior Division, Guwahati in T.A. No. 77/2005 is set aside.

Let the matter be sent back to the learned first appellate court to decide afresh in the light of the observations made hereinabove.

Send back the LCR.