Allahabad High Court
Raghav Das Chela Mahant Mathura Das And ... vs Kali Ram Das Chela Mahant Ganga Ram Das ... on 14 February, 2023
Author: Ajay Bhanot
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 74 Case :- FIRST APPEAL FROM ORDER No. - 1145 of 2016 Appellant :- Raghav Das Chela Mahant Mathura Das And Another Respondent :- Kali Ram Das Chela Mahant Ganga Ram Das Deceased And 2 Ors. Counsel for Appellant :- Ram Kishore Pandey,R.K. Pandey Counsel for Respondent :- Gulrez Khan,G. Khan,Javed Husain Khan,Pradeep Chandra Tripathi Hon'ble Ajay Bhanot,J.
1. Heard Shri Ram Kishore Pandey, learned counsel assisted by Shri Sachin Ojha, learned counsel for the appellants and Shri W.H.Khan, learned Senior Counsel assisted by Shri Gulrez Khan, learned counsel for the respondents.
2. The following issues which arise for consideration in this appeal is that :
i). Whether the document (order of Assistant Commissioner dated 04.10.1978) was admissible in evidence?
ii) Whether on account of the failure of the appellant to object to admissibility of the said document at the time of its presentation before the learned court below precludes the appellants from raising such objections at a later stage in the proceedings?
3. The photocopy of the order dated 04.10.1978 was presented before the court along with the delay condonation application. The document was registered as 35C/169C by the learned appellant court. The delay condonation application was allowed by the learned appellate court on the foot of the aforesaid document. The order passed by the learned appellate court dated 01.05.2013 allowing the delay condonation application has attained finality. The appellants assailed the aforesaid order dated 01.05.2013 by instituting the writ petition registered as Writ-C No.36104 of 2013 (Jagannath Ji/Jagdish Ji Virajman Mandir Katra and another v. Mahant Vijai Ram Das Chela Ganga Ram Das and another). The following order was passed by this Court in the said writ petition:
"Sri R.K.Pandey, learned counsel for the petitioners states that the writ petition has become infructuous.
The writ petition is dismissed as such."
4. It is evident that the appellants did not press the challenge to the order allowing delay condonation application. The appellant waived their rights to challenge all documents on which reliance was placed in the said order. The delay condonation application was part of the appeal court proceedings.
5. Once a challenge to a particular document has been waived, the party cannot resile from its conscious stand and assail the said document belatedly in appeal. The rational for insisting upon the parties to object to the document at the earliest stage is not far to seek. Such a challenge is consistent with rules of fair play, and enables the opposing side to rectify curable defects or lead evidence to support the document.
6. The narrative will now be fortified by the authorities in point. Considering the belated challenge to the admissibility of a document, the Supreme Court in R.V.E. Venkatachala Gounder v. Arulmigu Viswesarasami and V.P. Temple reported at (2003) 8 SCC 752 held thus:
"20. The learned counsel for the defendant-respondent has relied on The Roman Catholic Mission Vs. The State of Madras & Anr. AIR 1966 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."
7. This Court in E.S.I. Corp. v. Jagdish Prasad, reiterated the unexceptional requirement of law to take out an objection about the admissibility of a document in the first instant and at the first available opportunity. In Jagdish Prasad (supra) held thus:
"9. This Court is of opinion that an objection about admissibility of secondary evidence must be taken before the Court of first instance, where the secondary evidence is filed without foundation. If that objection is not taken before the Court, where the evidence is filed on behalf of a party, it cannot be later on urged in appeal.
15. In view of this position of the law, there is no doubt that unless an objection about the admissibility of evidence is taken in the Court of first instance, where the evidence is led, it cannot be raised in appeal for the first time."
8. The law set its face against a challenge to the admissibility of a document when the party failed to raise an objection at the earliest or permitted the court to proceed on the foot of such document in Iqbal Basith and others v. N.Subbalakshmi and others, reported at (2021) 2 SCC 718, the Supreme Court in Iqbal Basith (supra) held thus:
"13. Both the courts then proceeded to consider the title of the appellants to decide lawful possession. The respondents had themselves produced a certified copy of Ex.1 dated 07.09.1946. The appellants produced photocopies of all other resolutions, government orders and sale deed in favour of their vendor O.A. Majid Khan by the Municipality. The failure to produce the originals or certified copies of other documents was properly explained as being untraceable after the death of the brother of P.W.1 who looked after property matters. The attempt to procure certified copies from the municipality was also unsuccessful as they were informed that the original files were not traceable. The photocopies were marked as exhibits without objection. The respondents never questioned the genuineness of the same. Despite the aforesaid, and the fact that these documents were more than 30 years old, were produced from the proper custody of the appellants along with an explanation for non production of the originals, they were rejected without any valid reason holding that there could be no presumption that documents executed by a public authority had been issued in proper exercise of statutory powers. This finding in our opinion is clearly perverse in view of Section 114(e) of the Indian Evidence Act 1872, which provides that there shall be a presumption that all official acts have been regularly performed. The onus lies on the person who disputes the same to prove otherwise."
9. Similarly, an old public document also attracts the presumption of correctness which is relatable to Section 90 of the Evidence Act. The Supreme court in Lakhi Baruah v. Padma Kanta Kalita, reported at (1996) 8 SCC 357 upon considering the challenge to an old public document held thus:
"14. It will be appropriate to refer to Section 90 of the Evidence Act, 1872 which is set out hereunder:
90. Presumption as to documents thirty years old.? Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person?s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
15. Section 90 of the Evidence Act, 1872 is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature or execution of old documents after lapse of thirty years. In order to obviate such difficulties or improbabilities to prove execution of an old document, Section 90 has been incorporated in the Evidence Act, 1872 which does away with the strict rule of proof of private documents. Presumption of genuineness may be raised if the documents in question is produced from proper custody. It is, however, the discretion of the court to accept the presumption flowing from Section 90. There is, however, no manner of doubt that judicial discretion under Section 90 should not be exercised arbitrarily and not being informed by reasons."
10. In this case the offending document dated 04.10.1978 was in the nature of a public document having been issued by a statutory authority upon enquiry. The document being an old one and having been produced by credible person attracts the presumption of correctness as laid down in Lakhi Baruah (supra).
11. The learned appellate court dwelt at length on the objection to the admissibility of the said document and held as under:
"Point for determination number three:-
Learned counsel for the respondent has referred to order of the Assistant Commissioner Jhansi Division dated October 4, 1978, passed by him in inquiry under section 6 of the Hindu Public Religious Institution (Prevention from Dissipation of Properties (Temporary Powers) Act, 1962. Copy of whic his on file as 35C/169C. Perusal of this order shows that there was a dispute between the original plaintiff and original defendant regarding the management of the properties of the same deity and inquiry was done by the then Assistant Commissioner of Jhansi Division, the original plaintiff, had objected to the appointment of the original defendant as Shebait of the temple as he was not fit for this job on various grounds. An inquiry was conducted by the Assistant Commissioner and during this inquiry, it was found by him and was held by him that the original defendant, who appeared before the impugned inquiry, was not a person of sound mind and hence he was not able to manage the properties of the temple. He, thus rejected the claim of original defendant and the original plaintiff as well and appointed a receiver to look after the affairs of and management of the temple and its properties. This order became final between the parties.
Learned counsel for the respondent has raised preliminary objection regarding the maintainability, rather admissibility of copy of this order on the ground that since it was filed during the time of hearing of application under Section 5 Limitation Act, filed for condoning the delay in finding the present appeal and was not filed are admitted by the Court under Order 41 Rule 27 Civil Procedure Code, hence it cannot be looked into also that it was photocopy of a certified copy, I am unable to accept this argument because after the decision of application under Section 5 Limitation Act, the papers and file became a part and parcel of the present appeal and also that when this paper was considered by my learned predecessor at the time of decision of application under section 5 Limitation Act for condonation of delay in filing the present appeal, no such objection regarding photocopy was raised and the order condoning delay also shows that this point, and finding of the Assistant Commissioner in this order was the main ground for correlation of delay.
Hence it is established that since the ex parte judgment under attack in the present appeal was passed on August 20, 1979, whereas the order of the Assistant Commissioner was passed on October 4, 1978 in the above noted proceedings in which the original plaintiff was a party, hence this finding was known to the original plaintiff during the pendency of the original suit number 469 of 1975 that the original defendant was person of unsound mind doing the proceedings in that original suit. The record of the lower court file also shows that no steps were taken by the original plaintiff for appointment of guardian ad litem of the insane original defendant and the proceedings were done by the court below without appointing such a guardian. When the original defendant became insane during the proceedings, all the powers of attorney, if any, executed by him lost its legal significance.
On the basis of above discussion, I am of the considered view that the Court below committed illegality by completely ignoring of provisions of law contained in order 32 Rule 15 of the Civil Procedure Code in commencing the proceedings and passing the impugned judgment and decree without appointing the Guardian of the original defendant who was a person of sound mind at the time during the pendency of the proceedings in original suit before him. The point for determination number three is answered accordingly."
12. No exception can be taken to the reasoning or the analysis of the learned appellate court in the impugned order. The impugned order is liable to be affirmed and the appeal fails.
13. The instant appeal is dismissed.
Order Date :- 14.2.2023 Ashish Tripathi