Calcutta High Court (Appellete Side)
Ridh Karan Sharma And Others vs Sri Nand Kishore Thakur And Another on 11 April, 2019
1 S/l.
19.
Bpg April 11,
2019
In the High Court at Calcutta
Civil Revisional Jurisdiction
C.O. No.9 of 2019
Ridh Karan Sharma and others
Versus
Sri Nand Kishore Thakur and another
Mr. Haradhan Banerjee,
Mr. Amitava Pain,
Mr. Subhrangshu Dutta,
Mr. Partha Pratim Mukhopadhyay,
Ms. Manideepa (Paul) Roy,
Mr. Nilmoni Das.
...for the petitioners.
Mr. Aniruddha Chatterjee,
Mr. Iftekar Munshi,
Mr. Asif Sohail Tarafdar.
...for the opposite parties.
At the time when the matter is called on for hearing, an adjournment is sought on behalf of the opposite parties. Such prayer is opposed on behalf of the petitioners in view of the fact that adjournment had been granted on the previous occasion as well.
As such, the revisional application is taken up for hearing. Learned senior counsel appearing for the petitioners contends that the court below acted without jurisdiction in directing a certified copy of a lease deed to be directly marked as Exhibit 2 in 2 connection with a proceeding under Sections 17 (2) and (2A) of the West Bengal Premises Tenancy Act, 1956. It is argued that the predecessor-in-interest of the opposite parties, in his written statement, had admitted that the said defendant was inducted by the plaintiffs/present petitioners in the suit property as a monthly premises tenant. In such view of the matter, it is argued that the certified copy of the deed of lease now sought to be produced, becomes redundant. Since by producing the same, the opposite parties take a contrary stand to their own admission, as regards direct tenancy having admittedly been given to the opposite parties under the superior landlord after the expiry of the lease of the present petitioners.
It is next argued that previously the superior landlord had sought to implead himself as a party to the present suit, which was turned down by an order of a co-ordinate Bench of this Court dated January 24, 1997 passed in C.O. No.1389 of 1995. Learned senior counsel places reliance on certain findings in such order which say that if there is any dispute about the relationship of landlord and tenant in the instant suit, that should be decided according to the materials on record. It is argued that since the premise of the prayer for addition of party by the superior landlord was that a direct tenancy had been given to the predecessor-in-interest of the present opposite parties and the contention was turned down by this Court, 3 the same question could not be agitated again by marking the certified copy of the deed of lease as an exhibit.
Learned senior counsel further submits that as long back as in the year 2011, there was a direction of this Court upon the trial court to dispose of the applications under Section 17(2) and (2A) of the 1956 Act within thirty days from the date of communication of that order. After the said order, passed on March 28, 2011, the present opposite parties waited for an inordinately long period for producing the document-in-question at the present juncture without any satisfactory explanation being furnished for the said delay. In this context, learned senior counsel cites a judgment reported at (2013) 14 SCC 1 (Bagai Construction through its proprietor Lalit Bagai Vs Gupta Building Material Store), wherein it was held that no opportunity to bring any fresh materials on record could be granted under Order XVIII Rule 17 of the Code of Civil Procedure in the event there was no acceptable reason or cause shown by the proponent (plaintiff in that case) as to why the documents were not placed on record during the entire trial. In view of such ratio, it is argued that the present application for production of the certified copy ought to have been dismissed in limine.
Learned senior counsel further submits that, in any event, the certified copy produced was secondary evidence and had to be proved in the manner as prescribed in the Evidence Act. By placing 4 reliance on Section 63 of the Evidence Act, learned senior counsel submits that a certified copy is also a piece of secondary evidence and proper explanation had to be given as to why the original could not be produced, and the same could not be admitted directly as an exhibit. In this context, learned senior counsel seeks to distinguish a judgment of the Hon'ble Supreme Court, reported at 2001 WBLR SC 573 (State of Haryana Vs. Ram Singh), which was cited by the opposite parties in the court below. It is argued that the Supreme Court held in the said judgment that a certified copy of the registered document could be directly marked as exhibit, in the light of Section 51A of the Land Acquisition Act, 1894, which provides that a certified copy of a document registered under the Registration Act, 1908 may be accepted as evidence of the transaction recorded in such document. However, since the present case is not one under the Act of 1894, the ratio of the said judgment does not apply to the present case and the judgment was erroneously relied on by the trial court.
Learned senior counsel next cites a judgment reported at (2011) 4 SCC 240 (H. Siddiqui (Dead) By LRS. Vs. A. Ramalingam) primarily for the proposition that the provisions of Section 65 of the Evidence Act have to be adhered to for permitting the parties to adduce secondary evidence. Such a course is subject to a large number of limitations, which vitiates the order of the trial court in 5 the present matter, since the document was directed to be marked as an exhibit directly, without going through such formalities.
As such, it is argued by the petitioners that the trial court acted without jurisdiction in directing the certified copy-in-question to be marked as an exhibit directly.
Upon considering the judgment reported at 2001 WBLR SC 573, it is seen that the said judgment was rendered in the context of Section 51A of the Land Acquisition Act, 1894 and, as correctly argued by learned senior counsel for the petitioners, is not applicable to the present case.
Section 74 (2) of the Indian Evidence Act, 1872 provides that public records of private documents, kept in any State, are public documents.
Section 76 of the said Act provides that certified copies of public documents will be issued by every public officer having custody of such documents.
Section 77 of the Act provides that such certified copies may be produced in proof of the contents of the public documents or part of the public documents of which they purport to be copies.
However, Section 77 does not deal with the mode of proof of secondary documents, which is dealt with by Section 65.
Section 63 of the Indian Evidence Act includes certified copies given under the provision thereinafter contained and Section 6 64 provides that documents must be proved by primary evidence except in cases thereinafter mentioned, which is followed by Section 65 which stipulates cases in which secondary evidence may be given.
As such, the trial Judge acted without jurisdiction in directly marking the certified copy as an exhibit, instead of following the modalities as prescribed by law.
Taking into consideration the other aspect of the matter, it is seen that although, as argued on behalf of the petitioners, the original defendant stated in his written statement that the defendant was inducted by the plaintiff in the suit property as a monthly premises tenant, in other paragraphs of the written statement, the defendant went on to say that on and from July, 1993 the defendant had become a direct tenant under the superior landlord by paying rent to him and obtaining rent receipts from him. As such, the relationship of landlord and tenant between the plaintiffs and the defendants was disputed after June, 1993.
In such view of the matter, the statements relied on by the petitioners to fix an "admission" on the original defendant cannot be taken to be an unqualified admission and as such could not be a premise for refusing the contention of the opposite parties that they became direct tenants under the superior landlords.
As far as the applicability of the judgment reported at (2013) 14 SCC is concerned, it is evident from the said judgment 7 itself that in the said case, the custody of the documents-in-question were all along with the plaintiffs, who could not explain why those were not placed in the record during the entire trial. Moreover, the documents were sought to be produced at a stage when the final arguments were over and the matter was reserved for judgment. In such circumstances, the Supreme Court held that the documents ought not to be permitted to be produced by the plaintiffs in the said case.
However, in the present case, the document of which certified copy is sought to be introduced, is germane for the decision, not only of the application under Sections 17 (2) and (2A) of the 1956 Act, but the suit as well. Since the suit is still at a premature stage, although the application under Sections 17 (2) and (2A) is at the stage of arguments, the ratio laid down in the judgment of the Supreme Court as stated immediately above, cannot be applied to the present case. Rather, in view of conflicting contentions of the parties, since the opposite parties categorically relied on the lease deed-in-question to show that their predecessor-in-interest had become a direct tenant under the superior landlord after the expiry of the lease in favour of the present petitioners, the said document is germane and relevant for the decision of the suit as well as the interlocutory applications. Hence, the importance and relevance of 8 the document could not be brushed aside in considering whether they should be permitted to be produced even at a belated juncture.
As regards the other contention of the petitioners, that the judgment previously passed by a co-ordinate Bench of this Court, negating the application of the superior landlord for being added to the suit on the premise of having given direct tenancy to the opposite parties, being a bar to the present contention of the opposite parties, the same cannot be accepted. Although a co-ordinate Bench of this Court, sitting in revision over an order whereby an application under Order I Rule 10 of the Code of Civil Procedure was decided, took a particular view as to the effect of the deed-in-question, the same could not be held to be conclusive in subsequent stages of the suit. The adjudication was restricted to the decision on the addition of the superior landlord as a party to the suit. In that revisional application, the co-ordinate Bench of this Court had held that the said superior landlord need not be added as a party to the suit but went on to observe that if there was any dispute about the relationship of the landlord and tenant in the suit, that should be decided according to the materials on record. The defendant/opposite party, it was observed, might raise that plea as his defence against eviction. It was further observed that the plaintiff-petitioners ceased to be his landlords and in support of that fact in case of necessity he might also call the Shebait-landlord as 9 his witness. In such circumstances, it was held that the superior landlord was not a necessary party to the proceeding. The question/issue as to direct tenancy being given to the opposite parties was kept wide open.
Hence the findings arrived at in the said proceedings were tentative as far as the suit is concerned and do not preclude the opposite parties from urging the question of direct tenancy having been given after the expiry of the lease in favour of the petitioners in the suit.
Having regard to the aforesaid circumstances, although the trial court acted erroneously in admitting the certified copy as an exhibit directly, there was no bar to the trial court to permit the opposite parties to produce the certified copy even at a belated stage, since the same had direct and germane relevance to the decision of the lis.
Accordingly, C.O. No.9 of 2019 is dismissed on contest by modifying the impugned order to the extent that the certified copy of the lease deed-in-question was directed to be marked as exhibit 2. The opposite parties are, however, permitted to prove the said certified copy as a secondary evidence in accordance with law.
In view of the long pendency of the proceeding, the trial Judge is directed to dispose of the application under Section 17(2) and (2A) of the 1956 Act as expeditiously thereafter as the business 10 of the court permits, preferably within one month from the certified copy of the document being proved in accordance with law.
In order to implement the directions given in this order, the trial court is directed further to fix a date on which the opposite parties would prove the certified copy-in-question upon recalling their relevant witness.
There will be no order as to costs.
Urgent certified website copies of this order, if applied for, be given to the parties upon compliance of all requisite formalities.
(Sabyasachi Bhattacharyya, J. )