Madras High Court
Krishnasamy Konar vs Narayanasamy Konar :1St on 16 September, 2020
Author: N.Seshasayee
Bench: N.Seshasayee
S.A(MD)No.291 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date: 16.09.2020
CORAM
THE HONOURABLE MR.JUSTICE N.SESHASAYEE
S.A(MD)No.291 of 2020
Krishnasamy Konar :Appellant/Appellant/
Defendant in the counter claim
Vs.
1.Narayanasamy Konar :1st Respondent/1st Respondent/
Plaintiff in the Counter claim
2.Kamatchi :2nd Respondent /2nd Respondent/
2nd Defendant
PRAYER: Second Appeal is filed under Section 100 of C.P.C, against the
the dismissal of the First Appeal by the Hon'ble Sub-Court, Thuraiyur in
A.S.No.14 of 2017 dated 11.3.2019 confirming the judgment and decree
of the Hon'ble District Munsif Court, Thuraiyur in O.S.No.287 of 2007
dated 6.1.2017.
For Appellant : Mr.V.Singan
For Respondents : Mr.H.Lakshmi Shankar
JUDGMENT
The appellant herein had laid a suit in O.S.No.287 of 2007 for partitioning the property of his father. The parties would be referred to by their rank before the trial Court.
1/10 http://www.judis.nic.in S.A(MD)No.291 of 2020 2.1. The suit properties are 15 in number and according to the plaintiff, they belong to his father Ammasi Konar, who purchased the same between 1948 and 1974 under Exts.A.1 to A.3 sale deeds. Ammasi Konar died leaving behind him surviving the plaintiff and the defendants as his children. According to the plaintiff, the parties herein became entitled to 1/3rd share each in the suit properties, and he has laid the suit for partitioning his 1/3rd share.
2.2. The first defendant is the brother of the plaintiff. In his written statement, he has stated that item nos.2 and 3 in the plaint schedule have been sold by Ammasi Konar to a certain Anandhan and that, Ammasi Konar had executed a settlement deed dated 10.03.1993 under Ext.B.1, settling item nos.13 and 14 in the plaint in favour of the first defendant. Accordingly, he pleaded that these 4 items of properties were not available for partition. In his written statement, he raised a counter claim for declaration of his title for item nos.13 and 14. 2.3. So far as item nos.2 and 3 are concerned, since they were sold already, they were out of reckoning for partition. As regards, item nos.13 and 14 are concerned, the trial Court has found that Ext.B.1 is genuine and that it has come to effect. Therefore, it upheld the counter claim and 2/10 http://www.judis.nic.in S.A(MD)No.291 of 2020 granted a decree declaring the title of the first defendant to the item nos.13 and 14. This finding of the trial Court came to be confirmed by the first Appellate Court. Hence, the appellant/plaintiff challenges the decree in the counter claim passed by the Courts below.
3.The following substantial question of law is framed:
"Whether non marking of a settlement deed dated 10.03.1993 under Ext.B.1 in its entirety is fatal to the case of the defendant in his counter claim and whether the courts below erred in relying on it?"
4.The learned counsel for the respondents has entered appearance and both sides produced all relevant records in the form of typed-set of papers to facilitate the Court to consider the matter. Since both the sides were ready for final hearing and since records were made available, this Court heard the learned counsel on either side in detail.
5. The learned counsel for the appellant strongly canvassed that Ext.B.1 was not marked in its entirety and only the signature of the settler of the document, namely, Ammasi Konar alone was marked. When the entire document is not marked, it is not given to the Courts to act on the contents of the document. This is a fatal error that goes to the root of the 3/10 http://www.judis.nic.in S.A(MD)No.291 of 2020 matter. To support his view, he relied on the Judgment of this Court in Veronika Thomas Rajkumar Vs. Joseph John Peter Sandy and another[2004 (1) MLJ 301] 6.1. Per contra, the learned counsel for the respondents would argue that Ext.B.1 was introduced during the cross-examination of the appellant/plaintiff, when he was examined as P.W.1 and the defendants were under the bonafide belief that the entire document was marked, and this would be evident in the affidavit of chief examination, when the first defendant was examined as D.W.1. Referring to the settlement deed, it is averred in the affidavit of chief examination of D.W.1 that the same is marked as Ext.B.1.
6.2. Not only that, extensive cross-examination of P.W.1 has happened based on Ext.B.1 and so was the case of D.W.1. He further added that the first defendant in the suit has put up his residential building in the property settled to him, and this has been admitted by P.W.1 in his cross- examination. He submitted that an error in marking a document will not ipso facto affect the correctness of the Judgment. He relied on the Authority in Mukhi Ram Vs. Firm Kamta Prasad-Balam Das[1937 AIR Pat 222], Pribhadinomal Methumal and others Vs. Mt.Chuti and 4/10 http://www.judis.nic.in S.A(MD)No.291 of 2020 others[1933 AIR Sind 379] & Sucha Singh Vs. Gurnam Singh and Another[1972 AIR Punjab & Haryana 418].
7.1. It must be stated that marking a document is the responsibility of the Court. A litigant's responsibility stops when he introduces any document for being considered as an evidence before the Court. When once the document is so introduced, his responsibility stops and thereafter, the Court takes over the further responsibility of marking it. Here, the defendants have produced a document in the Court and confronted the plaintiff/appellant herein with their document during his cross- examination. In the testimony of PW1, it is recorded by the Court that only the signature of the executant of the settlement deed dated 10.03.1993 alone is marked as Ext.B.1. However, P.W.1 was cross- examined extensively on the contents of the document. It only implies that the learned counsel who had appeared for the defendants was under
the impression that the entire document was marked. This is reflected in the affidavit of chief examination of the first defendant, wherein, the settlement deed is referred to as Ex.B.1.
7.2. This apart, when both sides went to trial, the appellant/plaintiff knew too well what he was litigating on. Therefore, unless the appellant herein 5/10 http://www.judis.nic.in S.A(MD)No.291 of 2020 demonstrates that the procedural lapse on the part of the trial court has resulted in substantial injustice or caused any undue prejudice of his rights, he cannot succeed.
8.In Mukhi Ram Vs. Firm Kamta Prasad-Balam Das[1937 AIR Pat 222], the issue before the Court was that a certain book of account was produced before the court, but, the trial Judge had only wrote the case number and put his signature, but, appeared to have omitted to mark the document and thereafter, an argument propped up that the document has not been endorsed in accordance with Order 13 Rule 4 of the Civil Procedure Code. The court however, found that both the trial court and the First Appellate Court have disclosed that evidence and proceeded to hold that a mere procedural lapse however reprehensible would not make the document inadmissible in evidence.
9.In Pribhadinomal Methumal and others Vs. Mt.Chuti and others[1933 AIR Sind 379], a certain record of a previous case, though produced was not exhibited in the case, and a issue was raised that without exhibiting them, a finding of resjudicata and limitation was entered into against the appellants before the court below. This was rejected by the High Court since both sides have approached as if it was exhibited, and this was made use of, and held that not marking the 6/10 http://www.judis.nic.in S.A(MD)No.291 of 2020 document in the circumstances referred to cannot be taken exception to.
10.In Sucha Singh Vs. Gurnam Singh and Another[1972 AIR Punjab & Haryana 418], the learned single Judge of Punjab and Haryana High Court held that:
"...To decide whether a document has really been admitted, a Court of appeal may look into the endorsement, but determination of such a question depends also on the order of the Court, statement of the parties and the evidence led in the case. It is only for purposes of reference and identity that a document tendered in evidence is marked as an exhibit, and the mere fact that the endorsement is in any way defective does not by itself lead to the conclusion that the document has not been admitted in evidence. A Court of appeal is not expected to act mechanically but must make a reasonable and judicial approach and unless it comes to the decision that by failure to comply strictly with Order 13, Rule 4, some prejudice has resulted to a party, it is not justified in remanding the case. Section 99 of the Code of Civil Procedure lays down a guideline in such cases. There is a statutory and mandatory provision contained in this section that no decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, nor affecting the merits of the case or the jurisdiction of the Court."
11.These authorities highlight that a document is given an exhibit number only for its identification, and when the parties knew what they were litigating on, and acted on those documents during trial, mere non-marking of a document would not be fatal. After all, actus curiae navinum gravabit.
7/10 http://www.judis.nic.in S.A(MD)No.291 of 2020
12.Turning to the authorities cited by the learned counsel for the appellant in Veronika Thomas Rajkumar Vs. Joseph John Peter Sandy and another, the Division Bench of this Court only re-iteretes the settled principle that marking of a document does not amount to proving its contents. That may not be wholly relevant for deciding the issue.
13.In the final analysis, this Court holds that mere omission of marking a document, in its entirety, in the evidence is not fatal since the said document has been acted upon, even during trial. Nothing is withheld from the knowledge of the appellant/plaintiff at any point of time and therefore, no substantial prejudice or injustice is shown to have occasioned to his cause. This Court finds that the appellant's only bone of contention is but a last straw he could look to, which litigants sometime attempt, not out of hope, but out of desperation. The substantial question of law necessarily fails.
14.There is no merit in the appeal and the same is dismissed and Judgment and Decree of the Sub-Court, Thuraiyur in A.S.No.14 of 2017 dated 11.03.2019 confirming the Judgment and Decree of the District 8/10 http://www.judis.nic.in S.A(MD)No.291 of 2020 Munsif Court, Thuraiyur in O.S.No.287 of 2007 dated 06.01.2017 is upheld. No costs.
16.09.2020
Index : Yes/No
Internet : Yes/No
Tsg-2
To
1.The Sub-Court, Thuraiyur.
2.The District Munsif Court, Thuraiyur.
3.The Section Officer,
V.R.Section, Madurai Bench of Madras High Court, Madurai.
9/10 http://www.judis.nic.in S.A(MD)No.291 of 2020 N.SESHASAYEE., J.
Tsg-2 S.A(MD)No.291 of 2020 16.09.2020 10/10 http://www.judis.nic.in