Y. Ganganaidu vs M. Surkantam

Syed Shah Mohammed Quadri, J. 1. The defendant in O.S. 231/85 on the file of the First Additional District Munsif, Bhimavaram is the revision petitioner. He filed LA. 1153/89 under Order 26 Rule 1 of CPC for appointment of Commissioner to record the evidence of one Grandhi Suryanarayana. The witness is said to be seventy five years old and he is unable to move. That application was contested by the plaintiff/respondent, on the ground that there is no necessity to examine the said witness.

The trial court dismissed the petition on 20-3-1990 holding that u/s 91 of the Evidence Act when the terms of a contract or of a grant or any other disposition of the property have been reduced into the form of a document, no evidence shall be given in proof of such document except the document itself. The correctness of that order is assailed in this Civil Revision Petition.

Shri E. S. Ramacharidra Murthy, the learned counsel for the petitioner, submits that the order suffers from an error of jurisdiction inasmuch as an erroneous view of law the learned trial Judge failed to exercise his jurisdiction. I find considerable force in the submission of the learned counsel for the petitioner.

The trial Court dismissed the petition, on the ground that no oral evidence is permissible under S. 91 of the Evidence Act when the terms of a contract or of a grant or any other disposition of the property have been reduced into the form of a document, except the document itself, which in this case is marked as Ex. A-1. It may be noted that Ex. A-1 was executed by the proposed witness on 24-4-1991, which is a sale deed under which an extent of Ac. 1-06 cents of land in R.S. No. 389/3 of Veeravasaram was sold by the proposed witness. S. 91 of the Evidence Act insofar as it is relevant for our purpose reads as follows :--

"When the terms of a contract, or of a grant or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to given in proof of the terms of such contract, grant or other disposition property, or of such matter, except the document itself, or secondary evidence of its contends in cases in which secondary evidence is admissible under the provisions herein'' before contained."

From a perusal of Sec. 91 of the Indian Evidence Act, it is clear that this section enjoins that where the terms of a contract, or of a grant or of any other disposition of property have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of the Evidence Act. Explanations to the said section makes it clear that the statement, in any document whatever, of a fact other than the facts referred to in this section, shall riot preclude the admission of oral evidence as to the same fact. A combined reading of Section 91 and Explanation 3 thereto makes it clear that if the oral evidence proposed to be adduced does not relate to;

(a) terms of a contract, grant, or other disposition of property, or

(b) matters required by law to be reduced to writing, Section 91 is not a bar.

Further if facts other than those mentioned in (a) and (b) above, are reduced to writing, oral evidence in regard to those matters is also not hit by Section 91.

So also oral evidence to prove a document can always be allowed and is not prohibited by Section 91 of the Evidence Act.

In this view of the matter, it has to be held that the trial court proceeded on erroneous assumption and failed to exercise its jurisdiction. In my view, if the order under revision is allowed to stand it would occasion a failure of justice. The order of trial Court dated March 20, 1990 in LA. 1153/1989 is, therefore, set aside. As the I. A. was dismissed on the ground that oral evidence is not permissible, I direct the trial court to consider the application afresh and dispose it of on merits. The Civil Revision Petition is accordingly allowed. No costs.

Petition allowed.