Madras High Court
Unknown vs Natarajan on 14 November, 2006
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.11.2006 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR C.R.P. (PD) No.1629 OF 2005 Sivanmalai Viswakarma Samuthaya Nala Sangam a registered Society as per No.91 of 1997 represented by its President Mr.R.Krishnamoorthy having office at No.361 Sivanmalai Kangeyam Erode District. ..Plaintiff Vs 1. Natarajan 2. Subbaraya Asari 3. Subramanian 4. Thangavelu 5. Palanisamy ..Respondents Prayer : Civil Revision Petition filed under Article 227 of the Constitution of India against the decretal order dated 28.06.2005 made in I.A.No.607 of 2005 in O.S.No.285 of 2003 on the file of the District Munsif Court, Kangeyam. For Petitioner : Mr.N.Manokaran For Respondents : Mr.D.Krishna Kumar O R D E R
Civil Revision Petition is filed against the order dated 28.06.2005 made in I.A.No.607 of 2005 in O.S.No.285 of 2003 on the file of the District Munsif Court, Kangeyam. refusing to receive certain documents pending disposal of the suit.
2. The brief facts leading to the filing of the Civil Revision Petition are as follows:
(i) The petitioner/plaintiff claiming himself as the elected President of Sivanmalai Viswakarma Samuthaya Nala Sangam has filed a suit for direction to the respondents/defendants to handover the suit schedule property, accounts books and other records of the Sivanmalai Viswakarma Samuthaya Nala Sangam within a particular date to be fixed by the Court.
(ii) The case of the petitioner/plaintiff is that the Society is registered for the welfare of Viswakarma community. The Sangam acquired a vacant site on 24.08.1998 to construct a building for its benefit. Later on, a building was also constructed out of the funds collected from the members of the community. The rental and other income derived from the building were not properly accounted for and that the annual returns were not submitted to the Registrar of Societies in accordance with law. The President was very old and therefore, he was not in a position to bestow his personal attention in the day-to-day affairs of the Sangam. The Vice-President, the Secretary and other members of the Committee took a hostile attitude. In view of the mal-administration of the Society, a general body meeting was convened and a resolution was passed, electing the petitioner/plaintiff as the President of the Society. Thiru.M.Lingappa Asari was elected as the Vice-President and other office bearers were also elected. The erstwhile office bearers were called upon to handover the minutes, accounts and other records pertaining to the Sangam.
(iii) Since, the previous office bearers did not handover the records pertaining to the Sangam, a police complaint was given to the Kangeyam Police for taking possession of the building and for return of records. Thereafter, the petitioner/plaintiff was constrained to file the above suit, calling upon the defendants to surrender possession of the property and for other records.
(iv) The second respondent/second defendant for himself and on behalf of other defendants filed a written statement and contended that Krishnamoorthy, the petitioner herein is not even eligible to become an ordinary member of the Sangam. The plaintiff/petitioner is a permanent resident of Coimbatore and as per clause 10(A)(1), persons belonging to Viswakarma community of Kangeyam, Sivanmalai and its outskirts, carrying on business in jewellery or wood work are alone eligibl e to become members of the Sangam. He further contended that the election said to have taken place on 21.09.2003 is not in accordance with law and the provisions of the bye-law and that, the procedure contemplated has not been followed. Therefore, the election is illegal. Under such circumstances, the office bearers, who are said to be newly elected have no right to seek for possession of the building minutes, accounts books and other records. Hence, they prayed for dismissal of the suit.
(v) Before the Lower Court, the newly elected President, namely, Krishnamoorthy filed an application under Order 7 Rule 14 C.P.C. to condone the delay in filing the documents and to receive the same. In his affidavit, he has stated that due to the delay in tracing out the documents from his Sangam Office, he was not able to produce the documents annexed to the petition, when he was examined. On receipt of the documents, he seeks permission to produce the same before the Court.
(vi) The application was resisted by respondents/defendants on the grounds that the documents referred to in the petition have been fabricated for the purpose of the suit. They further stated that if the petitioner/plaintiff had sent any reply, the defendants would have retained an office copy for the same and they would have filed it, along with this petition. Since they have not taken part in any of the activities of the Sangam, they are not in possession of the said documents.
(vii) Before the Lower Court, the first petitioner/first plaintiff was examined as P.W.1 and Document Nos.1,2,8,9,10,11,12 and 22 were marked without any objection and that the petitioner/plaintiff contended that Document Nos.3 to 7 and 13 to 21 are xerox copies of the notices sent to the defendants and the original postal acknowledgment cards for the receipt of notice. He further submitted that the said documents were traced out only now and that therefore, there is delay.
Per contra, the respondents/defendants objected for the marking of the xerox copies of the documents on the ground that they are fabricated by the petitioner/plaintiff for the purpose of the suit and in the absence of the original or carbon copies, the xerox copies of the documents should not be marked as evidence.
(viii) The Court below perused Document Nos.3 to 7 and 13 to 21 and found that the xerox copies of the notice are purported to have been sent by Thiru.Lingappa Asari, Kangeyam to the defendants/respondents. The postal acknowledgment cards accompanying the notices, carry the name of one Kulanthaivelu of Tirupur and as such, there is a contradiction giving rise to the suspicion about the veracity of the xerox copies of the said documents. Similarly, on perusal of Document Nos.13 to 15 and 18 to 20, the senders name was stated to be one Lingappa Asari of Kangeyam, whereas, the postal acknowledgement card bears the name of Lingappa Asari of Tirupur, which gives rise to unexplained discrepancy. No postal acknowledgment card was enclosed along with document No.4. The Lower Court further held that since Document No.16 was a returned cover sent by Lingappa Asari, the same could be marked only through him and not through P.W.1, the plaintiff.
(ix) The Court below has also proceeded on the footing that, if documents are in possession of the defendants, the permission sought for to produce the same through the plaintiff is contrary to the relief claimed. Document Nos.1,2,8,9,10,11,12 and 22 were permitted to be received subject to proof and relevancy. Excepting Document No.16, which is a returned postal cover, other Document Nos.3 to 7, 13 to 15 and 17 to 21 are only xerox copies. Therefore, the relief to receive the above said documents was rejected. Aggrieved by the said order, the petitioner/plaintiff has filed this Revision Petition.
3. Learned counsel for the petitioner/plaintiff submitted that there is no impediment to receive the documents and that they can be marked subject to proof and relevancy. He further submitted that the objections regarding the admissibility of any document could be decided at a later stage and it is pre-mature to shut down the receipt of documents. Placing reliance on the decision of the Supreme Court and this Court, he further contended that a photo copy of a document can be marked as an evidence and that an objection can be raised only relating to the mode of proof, and not for receiving the documents. In support of his contention, learned counsel for the petitioner/plaintiff relied on the following authorities:
(i) Karunakaran vs. Rajasekaran (2003 (3) L.W. 684)
(ii) Dayamathi Bai vs. K.M.Shaffi (2004 (7) SCC 107)
(iii) R.V.E.Venkatachala Gounder vs. Arulmigu Visweswaraswami & V.P. Temple (2004 (1) L.W. 728)
(iv) D.Sarasu vs. Jayalakshmi and 2 others (2001 (4) CTC 266)
(v) Bipin Shantilal Panchal vs. State of Gujarat and another (2001 (3) SCC 1)
(i) In a decision reported in Karunakaran vs. Rajasekaran (2003 (3) L.W. 684), while considering the procedure to be followed for recording of an evidence under Order 18 Rule 4, this Court held that the apprehension of the defendant that he would lose the opportunity of opposing the documents filed along with the affidavit of proof has no basis. As per the amendment, the documents can be received by the Court, when the party in his examination-in-chief files an affidavit in proof of the said documents. It was objected to by the defendant therein by filing a memo, stating that the said amendment is prospective in nature and that therefore, the plaintiff should have examined himself in Court, rather than filing an affidavit as proof for evidence in chief-examination. The said objection was overruled by this Court on the grounds that the proof and admissibility of the said documents can always be decided at the time of cross-examination of the party, who has tendered evidence.
This is a case in which the mode of proof of the documents was considered by this Court and it does not relate to the receipt of the xerox copy of the document, where the true copy of the document or the certified copy of the document was not produced.
(ii) In a decision reported in Dayamathi Bai vs. K.M.Shaffi (2004 (7) SCC 107), the admissibility of a registered sale deed shown as Ex.P1 was opposed at a later stage. The Supreme Court held that such objections should be taken, before the document is marked as Exhibit and admitted to the records. Inasmuch as there was no objection, that it was not a certified copy of the original, but only the mode of proof was questioned. The objections as to the mode of proof and the time of receipt of the documents were found to be not valid. In that case, the Supreme Court has 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 when 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 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 about the mode of proof. On the other hand, a prompt objection is not a serious prejudice to 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 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 court. The question considered in the above case was relating to the appropriate time as to when the objections were raised and if no objections were raised, whether it would be amounting to acquiscence. The Supreme Court has further held that the objections can be raised even before the document is marked as an Exhibit.
(iii) The judgment reported in R.V.E.Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P.Temple (2004 (1) L.W. 728) also deals with a similar situation, whether objections were not raised for tendering photo copy of a certified copy. All kinds of objections, which could be raised under Order 13 Rule 4 are that (i) objection that the document itself is inadmissible in evidence (ii) mode of proof. The crucial test is whether the objection is taken at the appropriate point of time. In paragraphs 14, 15 and 16, the Supreme Court has held as follows :
14. ..A30 is the photo copy of the order passed by the Assistant Commissioner H.R. and C.E.(Admn) Department, Coimbatore in exercise of its jurisdiction under Section 63 of the Act in which it has been held that temple is not the owner of the property in dispute. A 34 is the photo copy of the rent agreement executed between the appellant and the tenant-respondent No.2. The said rent note has also been attested as witness by the Executive Officer of the Municipal Committee. Tenant while appearing as D.W.2 admitted having signed rent note- Exhibit A34 in favour of the appellant.
15. The High Court has, by entering into the question of admissibility in evidence of the above-said two very material pieces of documentary evidence which were admitted in evidence without any objection when they were tendered in evidence and taken into consideration by the two courts below while evaluating evidence and recording findings of facts, excluded the documents from consideration. ...
16. One document A.30 is the photo copy 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 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 the 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. Here again, the Supreme Court was pleased to consider as to whether the objection was taken at the appropriate point of time and whether it would be amounting to the acquiescence to raise objection in a superior court. Since the document being a public document admissible as an evidence, the Supreme Court held that the objections not raised at the appropriate time amounts to waiver.
In the instant case, the objection has been raised at the appropriate time regarding the very existence of the said documents and moreover, the documents are said to be fabricated.
(iv) In a decision reported in D.Sarasu vs. Jayalakshmi and 2 others (2001 (4) CTC 266), this Court has held that the photocopy of document filed by plaintiffs is admissible in evidence as secondary evidence. The case relates to a partition deed said to have been executed between the plaintiff and one deceased, Dakshinamoorthy. When the deed was reduced to writing, the original of the partition was entrusted to the defendant and that the xerox copy was given to the plaintiff. When the xerox copy of the said document was sought to be marked through the plaintiff, it was objected to, however, P.W.6, one of the attestors to the partition deed deposed that the partition deed was executed and that the original was also entrusted to one of the defendants in the suit. The marking of the said document was allowed, since there was averment in the plaint, regarding the execution of the document and also entrustment of the xerox copy.
(v) In a decision reported in Bipin Shantilal Panchal vs. State of Gujarat and another (2001 (3) SCC 1), the Apex Court was pleased to consider the delay in disposal of a criminal case, where the Trial Court disallowed the objections of admissibility of certain documents, where the trial was stopped for a long period, enabling the defendants to take up that order before the High Court. While dealing with the right of the accused to have speedy trial in the Criminal Court, the Supreme Court in paragraphs 13 and 14 held as follows:
13. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fallout practice is this : Suppose the trial court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or the revisional court, when the same question is recanvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial court. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realized through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or remoulded to give way for better substitutes which would help acceleration of trial proceedings.
14. When so recast, the practice which can be a better substitute is this : Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.) In the above case, the accused was languishing in jail as an under-trial prisoner for seven years and bail was not granted. The Trial Court adopted a practice during evidence taking stage by disposing of objections raised by defence regarding admissibility of some documents and stopped the trial. The trial could not be completed expeditiously.
In the instant case, respondents/defendants have raised objections for marking the documents on the grounds that the documents are fabricated for the purpose of the suit. It goes to the very root of the matter relating to the existence of such a document. The judgments relied on by the plaintiff does not apply to the facts of this case.
5. Per contra, learned counsel for respondents/defendants submitted that the xerox copies of the documents cannot be received as evidence, when the existence, condition or contents have not been admitted by the defendants. He further submitted that all those documents have been fabricated for the purpose of this case and that there is no averment in the plaint. He further contended that there is no infirmity in the order of the Lower Court and objected to the receipt of the xerox copies of Document Nos.3 to 7 and 13 to 21.
6. Placing reliance on a decision reported in The Tamilnadu Industrial Investment Corporation Ltd., Chennai Transport Branch, Chennai vs. N.S.Swaminathan and two others (2002 (4) L.W. 147), learned counsel for respondents submitted that only when the documents are lost or destroyed, the petitioner can be permitted to mark the xerox copy of the documents as secondary evidence. In paragraph 6, this Court has held as follows :
"As the rights of the parties are to be determined based on those relevant material documents, with reference to which the petitioner seeks permission of the Court by filing xerox copies, it is incumbent upon the Trial Court to take extreme care and caution to see whether the petitioner was really placed in such an extreme situation, where it was not in a position to produce the originals in order to permit the petitioner to reply upon the xerox copies of those documents. It will have to be borne in mind that xerox copies will not always tally with the originals and we cannot rule out the possibility of any interpolation being made in the xerox copies. In other words, xerox copies being inferior in character vis-a-vis originals, the dispensation of filing of the originals can be considered only under exceptional circumstances and not as a matter of routine.
7. In the case on hand, there is no pleading as regards the issuance of notice-Exs.3 to 7. There is absolutely no averment as to whether the notice was sent by Lingappa Asari. In the affidavit filed along with a petition to receive the documents, the petitioner has stated that there was delay in producing certain documents from the Sangam office and hence, he was not able to produce them earlier.
8. Section 65 of the Evidence Act deals with cases in which the secondary evidence relating to documents may be given:
(a) when the original is shown or appears to be in the possession or power - of the person against whom the document is sought to be proved; or of any person out of reach of, or not subject to, the process of the Court; or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest ;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable; As far as Section 65(a) is concerned, it deals with the case in which the original is in possession of the adversary. The said provision is not applicable to the facts of this case. As far as the provision of Section 65(b), the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest. In the present case, respondents/defendants have categorically denied the existence and the contents of the documents. Further, it is to be seen that there is no pleading as regards its existence, condition or its contents in the plaint. Therefore, the said provision is not applicable. The provision in Section 65(c) can be applied to a case, where the original is destroyed or lost or when the party offering evidence of its contents cannot for any reason not arising from his own default or neglect to produce at any reasonable time. Admittedly, there is no pleading as to whether the documents in question were lost or destroyed. No proof of search has been shown in the affidavit filed in support of the petition seeking for receiving the documents. The only reason assigned by the petitioner is that it took some time for him to trace out the xerox copies.
9. As stated supra, the plaintiff/petitioner has not stated anything about the existence of the originals in the affidavit, nor has he pleaded that it was lost or destroyed and therefore, he could not produce the originals. The principles stated in the said judgment apply to the facts of this case, where the Lower Court has considered that in the absence of the originals, the said xerox copies have been rightly rejected. In a decision reported in K.Ashraff vs. S.Gangaraman (2005 (5) CTC 36), this Court has held as follows :
"There is absolutely no pleading as to whether there was any bonafide search. The words "lost or destroyed" are clear, unambiguous and are susceptible to only one meaning. "Mixed up with other documents" does not mean 'lost' to invoke Section 65(c) of the Evidence Act. The said Section contemplates that secondary evidence is not permissible "for any reason arising from his own default or neglect".
10. In the present case, the Lower Court on verification of Documents Nos.3, 5, 6 and 7 found that there are lot of discrepancies in the name of the sender. The above notices were purported to be sent by Lingappa Asari of Kangeyam, but the postal acknowledgment cards accompanying the notices carry the name of one Kulanthaivelu of Tirupur. Further, in document No.4, there is no postal acknowledgment. In Document Nos.13 to 15 and 18 to 20, the name of the sender has been stated as Lingappa Asari of Kangeyam, whereas the postal acknowledgment cards bear the name of one Lingappa Asari of Tirupur. This contradiction has to be considered in the context of the formation of the Society, which is open to the persons belonging to Viswakarma community of Kangeyam, Sivanmalai and its outskirts carrying jewellery business and other works. Only those persons are eligible to become members of the Sangam.
11. In view of the facts and circumstances of the case, when the existence and contents of these documents are disputed on the grounds that the documents are fabricated and since there are contradictions in the name of the sender and the respondents postal acknowledgment and in the absence of any pleading in the plaint, I am of the opinion that the judgments cited supra relating to the admissibility of the documents are not in strict sense and does not apply to the facts of this case.
Therefore, I am of the opinion that there is no material irregularity in rejecting the prayer to receive the documents in question. Hence the Civil Revision Petition fails and the same is dismissed. No costs. Consequently, connected C.M.P.No.18735 of 2005 is dismissed.
abe To The District Munsif Court, Kangeyam.
[PRV/9603]