Mehar Singh vs Charanjit Singh

R.L. Anand, J.—This is a second appeal against the order dated 1.9.1987 passed by Addl. District Judge, Ludhiana, who accepted the appeal of the defendants and remanded the case to the trial Court under Order 41 Rule 23-A C.P.C. with the direction to record the evidence of the parties afresh in terms of the observations made the appellate court and then to decide the case afresh.

The brief facts of the case can be described in the following manner:-

Mehar Singh appellant filed a suit for permanent injunction against the defendants on the plea that he is owner in possession of the plot measuring 1 Kanal 1 Maria contained in khasra No. 149 situated at village Hassanpur, tehsil and district Ludhiana. The defendants are co-sharer in other khasra numbers but they wanted to take the forcible possession of the plot in question. They have no right to do so. Hence the suit.

The suit was contested by the defendants on the plea that they are owners in possession to the extent of 1/4th share in the plot in dispute and being co-sharer injunction cannot be granted in this case against them.

On the pleadings of the parties the trial Court framed the following issues: -

Whether the plaintiff is entitled to the injunction prayed for? OPP

Whether the defendants are owners of 1/4th share of the plot in dispute? OPD

Relief.

The parties led evidence in support of their respective claims and on the conclusion of the trial vide judgment and decree dated 28.7.1986 Mr. G.C. Suman, Sub Judge, 1st Class, Ludhiana decreed the suit and granted permanent injunction against the defendants restraining them from interfering in the peaceful possession of the plot of dispute.

Aggrieved by the judgment and decree passed by the trial Court, the defendants filed the first appeal and the first appellate court for the reasons given in paras Nos. 8 and 9 of the judgment, as reproduced below, allowed the appeal and remanded the case under Order 41 Rule 23-A C.P.C.

"(8) At a very outset, the learned counsel for the defendants-appellants argued that in this case as many as six documents of the plaintiff were admitted into evidence by the trial Court and four documents were admitted into evidence. They were exhibited as PA and as Ex.P1 to Ex.P5 and Ex.D1 to Ex.D4. No doubt, the said documents are marked with exhibit numbers (encircled in RED by me) but none of those exhibits bear the endorsement giving the particulars as required under Order XIII Rule 4 of the Code of Civil Procedure. The said provisions of the CPC require that not only every document which has been admitted into evidence in the suit, is to bear an endorsement giving the particulars mentioned in Order XIII Rule 4 of the CPC and moreover the endorsement is to be signed or initialled by the Judge.

(9) In the instant case, the trial Judge, ignored the mandatory provisions of Order XIII Rule 4 of the Code of Civil Procedure, inasmuch as, no endorsement was made on the admitted documents bearing the particulars, as given in the said rule and none of the exhibit marks was signed or initialled by the Sub Judge and thus there has been non-compliance of the provisions of Order XIII Rule 4 of the Code of Civil Procedure. Without the signatures and initials of the trial Judge on the exhibit marks and as such those exhibited documents cannot be read in evidence. It was obligatory upon the trail Judge to make the necessary endorsement on each exhibited document and to put his signatures or initials thereon. The lapse committed by the learned Sub Judge cannot be ignored. Since the authenticity of the exhibit marks on the said documents is in question, so, these documents cannot be read as a part of evidence. If the documentary evidence is excluded, then no proper decision can be given in this case. As such, I find force in the contention of the learned counsel for the appellants that the impugned judgment and the decree based on the said evidence cannot be sustained. For the just and proper decision of the case, it is essential that the impugned judgment and decree should be set aside and that the case should be remanded to the trial Court with a direction to record the evidence of the parties afresh keeping in view the provisions of Order XIII Rule 4 of the CPC and then to decide the case afresh.

Aggrieved by the order dated 1.9.1987 passed by the Court of Addl. District Judge, Ludhiana, the present appeal.

I have heard Mr. Rohit Suri, Advocate on behalf of the appellant and with his assistance I have gone through the records of the case.

A perusal of the impugned order dated 1.9.1987 would show that the case has been remanded on the technical reasons that though the documents have been exhibited but there is no endorsement of the Presiding Officer as required under Order XIII, Rule 4 C.P.C. The view taken up by the Addl. District Judge cannot be sustained unless there is a finding to the effect that any prejudice has been caused to either of the parties, it has been held in Surinder Sharma v. Ram Parkash, 1979 Revenue Law Reporter 449 that documents which have been proved but not endorsed in the manner provided under Order 13 Rule 4 C.P.C. shall be deemed to have been properly admitted in evidence unless non-compliance has resulted in miscarriage of justice. The High Court held that the documents which have been proved and admitted in evidence must be read in evidence. It has not been proved from the impugned order that any mis-carriage of justice has occurred to any of the parties.

Resultantly, the appeal is hereby allowed, the order dated 1.9.1987 is hereby set aside the directions are given to the Addl. District Judge, Ludhiana to re-admit the appeal to its original number and dispose of the same on merits after taking into consideration the entire exhibits and documents which have been proved or deemed to have been proved on the file. The first appellate Court shall also issue notice to the defendants before hearing the final arguments on merits. The appeal shall be disposed of by the appellate Court within six months from the presence of the parties before it.

The appellant is hereby directed to appear before the successor of the appellate Court on 30.9.1999.