Gujarat High Court
Sardar Sarovar Narmada Nigam Ltd vs Rupdevsinhji Dolatsinhji Gohil-Decd on 7 January, 2021
Author: J. B. Pardiwala
Bench: J.B.Pardiwala
C/SA/223/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 223 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA Sd/-
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
Circulate this judgement in the subordinate judiciary.
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SARDAR SAROVAR NARMADA NIGAM LTD
Versus
RUPDEVSINHJI DOLATSINHJI GOHIL-DECD. & 1 other(s)
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Appearance:
MR. P.K. JANI, LD. SR. COUNSEL with MR HARDIK C RAWAL(719) for the
Appellant(s) No. 1
GOVERNMENT PLEADER(1) for the Respondent(s) No. 2
MR. NIRAV THAKKAR, LD COUNSEL with MR BHAVIN J SATWARA(3718)
for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 1.1
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CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALA
Date : 07/01/2021
CAV JUDGMENT
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C/SA/223/2015 CAV JUDGMENT
1. This litigation is between a statutory Corporation being a wholly owned Government Company under the provisions of the Companies Act, 1956 and a private individual. In this litigation, the public exchequer of approximately an amount of Rs.700/- Crore is at stake. Having regard to the high stake involved in this litigation, it was expected of the appellant Corporation to pursue this litigation very seriously, but unfortunately, it realized its seriousness only after the matter reached to this High Court by way of the present second appeal under Section 100 of the CPC (for short "the CPC"). It was also expected of the Trial Court and the First Appellate Court to conduct this litigation in a proper manner with all seriousness having regard to the public exchequer involved, but unfortunately, even the two Courts below dealt with this litigation in a very casual and slipshod manner.
2. This second appeal under Section 100 of the CPC is at the instance of the original defendant No.1, namely, Sardar Sarovar Narmada Nigam Ltd., and is directed against the judgment and order passed by the Addl. District Judge, Narmada at Rajpipla dated 28th August, 2014 in the Regular Civil Appeal No.20 of 2010 filed by the appellant herein against the judgment and decree passed by the Principal Senior Civil Judge, Narmada at Rajpipla dated 10th May, 2010 in the Regular Civil Suit No.142 of 2006 instituted by the respondent No.1 herein (original plaintiff).
3. For the sake of convenience, the appellant herein shall be referred to as the defendant and the respondent No.1 herein shall be referred to as the original plaintiff.
4. The suit instituted by the plaintiff came to be partly Page 2 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT allowed, declaring the plaintiff as the owner of the suit land situated at the village Gadher; with the ancillary relief in the form of monetary compensation of the amount equivalent to the market value of the suit property with 60% interest from 2003 onwards. The first appeal preferred by the appellant herein in the Court of the District Judge, Narmada came to be dismissed, whereas the cross appeal filed by the plaintiff came to be partly allowed.
5. Being dissatisfied with the above, the defendant is here before this Court with the present second appeal under Section 100 of the CPC.
6. Before I proceed to give a fair idea as regards the claim of the plaintiff and the reliefs granted by the two courts below, it would be appropriate to give some idea as regards one earlier round of litigation between the parties.
7. As noted above, the defendant is a Company. The Government of Gujarat established the defendant Corporation as a wholly owned Government Company under the provisions of the Companies Act, 1956 (for short "the Act, 1956") to undertake the execution of the Sardar Sarovar Project- Interstate Multi Purpose Project of four states, namely, Madhyapradesh, Maharashtra, Gujarat and Rajasthan for construction of a major dam on the river Narmada in the State of Gujarat. The Government of Gujarat executed a part of the project, and later it decided to form a Nigam and it passed a resolution accordingly with a preamble.
8. Couple of decades back, there were eight villages in the Nandod Taluka of the Bharuch District and those were known Page 3 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT as the Gopalpura Estate. They were a part of the erstwhile Princely State of the Rajpipla. About 300 years ago, Mulraj was the ruler of Rajpipla State. He had four sons (i) Bhaisinhji (ii) Surmalji (iii) Bharmalji and (iv) Hamsaji. The plaintiff in the present case is the son of late Bharmalji. Bhaisinhji became the ruler of Rajpipla upon the death of Mulraj. The three sons of Mulraj were given Jivai for their maintenance. Bharmalji was given eight villages for his maintenance. The village Gopalpura was the principal amongst them. The other seven villages were, namely, Naghatpor, Zer, Gadher, Jetpore, Shir, Navagam and Jantar. The village Gopalpura was a non-forest village and the remaining villages were the forest villages. This is how a group of eight villages was called a Gopalpura Estate. Between 1820 and 1834 and between 1855 and 1858, the Gopalpura Estate came to be administered by the Rajpipla State. In 1884, Hamirsinhji (other than the son of Mulraj) was the descendant of Bharmalji and the Thakore of Dumaldar of this Estate. He was a minor. Between 1884 and 1886, on account of his minority, the Gopalpura Estate was administered by the Rajpipla State which, in turn, was being administered by the British because the ruler of the Rajpipla Estate was also a minor. Between 1886 and 1893, the Gopalpura Estate was jointly administered by Maharana Gambhirsinhji of Rajpipla and A. Shevan, acting on behalf of the British.
9. In 1886, a dispute arose between the Dumaldar of the Gopalpura Estate and the Rajpipla Estate. It related to the rights which the Dumaldar had in the forest area of the Gopalpura Estate. Chandaba, the mother of Hamirsinhji and his natural guardians, applied on 29th July, 1888 to the Page 4 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT Administrator of the Rajpipla State for payment to her of the income of the Gopalpura Estate which was appropriated by the Rajpipla State. On 6th August, 1886, an order was made by the Joint Administrator on that application by which he declared the Dumaldar as the owner of the Estate granted to him. However, on 10th February, 1887, the operation of that order was stayed and an inquiry into the rights of the Dumaldar was directed to be made. Thereafter, there was an inquiry which led to the report which was in its turn followed by a resolution of the Government of Bombay dated 30th June, 1888 and the issue of a notification by the Rajpipla State. Sometime in the 19th Century, the two Forest Acts came to be enacted by the Rajpipla State. Ultimately, on 17th May, 1893, a resolution was passed by the Government of Bombay by which it was declared that the Dumaldar in the Rajpipla State, who had no Sanads did not have any rights. A consequential order was also made on the same day by which effect was given to the aforesaid resolution. In 1898, Maharaja Chhatrasinh became the ruler of the Rajpipla State. During his regime, a Forest Act was enacted. He issued a Huzur order on 23rd October, 1898 by which he declared the rights of the Dumaldars in the Estate granted to them. By virtue of that Huzur order, the Dumaldars, other than the Kumars, had no right to teak, black wood, kheir and sandal wood trees while the Kumars, who held the Dumala villages, had full rights in them. In 1915, Maharaja Vijaysinhji became the ruler of the Rajpipla State. The Dumaldar of the Gopalpura Estate kept on preferring applications complaining of the deprivation of his rights in the Gopalpura Estate and praying for their restoration. All such applications were addressed to the ruler of the Rajpipla State. Ultimately, on 10th March, 1922, the Page 5 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT ruler of the Rajpipla State issued the Huzur order No.211 of 1992 by which he declared that the Dumaldars of the Estates specified in that order had full forest rights in their villages and that all the other Dumaldars had only the right to take fuel and minor-forest produce. The Gopalpura Estate was not expressly mentioned in that Huzur order. Amongst other, the holders of what was called the "Kumars' villages" were declared to have full forest right in their villages. Twice thereafter, the Dumaldars of the Gopalpura Estate preferred applications to the ruler of the Rajpipla State for the recognition of his full proprietary rights to the forests in his Estate. The last of those applications was made on 15th July, 1929 which remained indisposed of. Thereafter, nothing happened until 1950 because between 1932 and 1950, the Gopalpura Estate was under the management of the Rajpipla State on account of the minority of the then Dumaldar. In the meantime, on 10th June, 1948, the Rajpipla State merged with the Dominion of India and became a part of the province of Bombay. After the Dumaldar of Gopalpura Estate became major in 1950, he revived his old dispute and preferred an application dated 11th October, 1954 addressed to the Conservator of Forests and one another application dated 22nd October, 1954 addressed to the Prant Officer. Those applications were intended to be dealt with by the Government of Bombay. By those applications, he claimed the full proprietary rights amongst others, to the forests in his Estate on the ground that his Estate enjoyed the status of "Kumars' villages" mentioned in the aforesaid Huzur Order of 1922. It appears from the materials on record that the Government, after having sought legal opinion in the matter, thought that the best way to resolve the dispute was to enter Page 6 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT into a settlement with the Dumaldar of the Gopalpura Estate. On 28th January, 1956, the Government of Bombay, therefore, made a proposal to the Dumaldar of the Gopalpura Estate to compromise the dispute on the basis that if he would give up his claim to the income of the Gopalpura Estate which was appropriated by the Rajpipla State and the Government of Bombay from 1932 till the date of the compromise, it would recognize his full proprietary rights in the forest of the Gopalpura Estate and deliver their possession to him. The Government of Bombay also required the Dumaldar to execute an indemnity Bond in their favour in so far as the claim of Dumaldar to the income of the Gopalpura Estate from 1932 onwards was concerned. On 3rd February, 1956, the Dumaldar accepted the offer. An indemnity bond as contemplated by the compromise proposal made in the letter dated 28th January, 1956 was executed by the Dumaldar and the Government of Bombay, in turn, recognized full proprietary rights of the Dumaldar to the forest in the Gopalpura Estate and returned the possession to him.
10. The Government of Bombay finalized the aforesaid compromise and acted on it in spite of the fact that one of its officers had suggested that it was not proper on the part of the Government to compromise with the Dumaldar on the lines indicated in its letter of 28th January, 1956. After the entire transaction was concluded, the Forest Officer took upon himself a deeper investigation into the matter and prepared a report dated 22nd March, 1958. The report was forwarded to the Conservator of Forest pointing out that the Government had committed a serious error in recognizing the full proprietary rights of the Dumaldar in the forest of the Page 7 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT Gopalpura Estate. The Government took its own time for consideration of this report which the Conservator forwarded to it and on 24th December, 1959, it passed a resolution by which it cancelled its earlier resolution of 28th January, 1956 and sought the possession of the forest of the Gopalpura Estate from the Dumaldar. Pursuant to this fresh resolution passed by the Government of Bombay, the Conservator of Forest wrote a letter to the Dumaldar on 7th January, 1960 asking him to return the possession of the forest in the Gopalpura Estate to the Government. The Government of Bombay took the aforesaid step because in its opinion, on consideration of further evidence and materials placed before it, it had come to the conclusion that the Dumaldar never had any proprietary rights in the forest of the Gopalpura Estate and that, therefore, the compromise entered into was an erroneous compromise. On 8th February, 1960, the Dumaldar replied to the Government of Bombay and denied the claim of the Government. Thereafter, apprehending that the Government would exercise its power and takeover the possession of the Forest without resorting to the due process of law, the Dumaldar filed the Special Civil Application No.194 of 1960 in this High Court, by which, he prayed for quashing the resolution of the Government of Bombay dated 24th December, 1959 and restraining the State of Gujarat from recovering the forest taxes from him. On 1st September, 1960, the said petition came to be finally disposed of on the learned Advocate General appearing for the State of Gujarat having made a statement before this Court that the State of Gujarat would not give effect to the said resolution of 24th December, 1959 insofar as it affected the Dumaldar (petitioner) and that the Government would withdraw the letter dated 30th December, Page 8 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT 1959 addressed to the petitioner. The then learned Advocate General made the aforesaid statement without prejudice to the right of the State of Gujarat to establish its ownership of the forest in a Court of Law by instituting a regular action.
11. In the aforesaid context, thereafter, the State of Gujarat instituted the regular civil suit being the Special Civil Suit No.02 of 1961 for the recovery of the possession of the State of Gopalpura Estate. The Special Civil Suit No.02 of 1961 was instituted in the Court of the learned Civil Judge (SD) at Bharuch against the Dumaldar and four others, in which, the following reliefs were prayed for;
"(I) It be declared that the Defendant No.1 and his heir and executors have no rights in or over the forests lands mentioned in Schedule "A" to the plaint and that the plaintiff is the full and absolute owner thereof.
(II) That the Defendant No.1 or any of the Defendants Nos.2 to 5 be decreed and ordered to deliver possession of the said forests to the plaintiff.
(III) That the Defendant No.1 and 2 to 5 may be restrained from cutting, felling and removing the trees or bamboos or any forest produce or from carrying on any operations in the forest till the possession is restored to the plaintiff.
(IV) That the Defendant No.1 be decreed and ordered to pay Rs.5,53,314/- to plaintiff.
(V) That the Defendant No.1 be decreed and ordered to pay past mesne profits till the date of the suit and future mesne profits at the rate to be determined by the Court.
(VI) That the Defendants be decreed and ordered to pay the costs of this suit to the plaintiff."
12. The Special Civil Suit No.02 of 1961 came to be dismissed Page 9 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT by the District Court at Bharuch vide judgment and decree dated 24th January, 1963.
13. The State of Gujarat, being dissatisfied with the judgment and decree passed by the District Judge, referred to above, preferred First Appeal No.219 of 1963 with Civil Application No.2764 of 1970 and Civil Application No.429 of 1971 respectively before this High Court. A Division Bench of this High Court, vide judgment and order dated 29th September, 1972, dismissed the appeal thereby affirming the judgment and decree passed by the Trial Court.
14. At this stage, it would be pertinent to say something important as regards the two civil applications which were filed by the State of Gujarat in the First Appeal No.219 of 1963. By Civil Application No.429 of 1971, the State of Gujarat prayed for leave to amend the plaint by inserting therein two new paragraphs and the Civil Application No.2764 of 1970 was preferred for production of additional evidence.
15. This Court, while dismissing the appeal, observed as under with respect to the two civil application;
"His last contention flows from two Civil Applications made by the State of Gujarat. Independently of Civil Applications No.2764 of 1970 and Civil Application No.429 of 1971. This contention cannot be sustained. It is, therefore, necessary for us to proceed to examine whether the aforesaid two Civil Applications should be granted. By Civil Application No.429 of 1971, the State of Gujarat prays for leave to amend the plaint by inserting therein two new paragraphs as set out in paragraph 9 of that application. The contention which it proposes to raise by the proposed amendment is that under the provisions Page 10 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT of the Jagir Abolition Act, 1953, the forests in suit vested firstly in the State of Bombay and then in the State of Gujarat, that, therefore, the plaintiff became the owner of the trees in the said forests and that "it is entitled to possession and enjoyment thereof". This contention is completely independent of the cause of action set out in the plaint if, by an independent statute, any rights have been given to the State of Gujarat, it can avail itself of them. We see no bar in the way of the State of Gujarat exercising them merely because it has entered into the present contract with the Defendant No.1. The contract between the plaintiff-State and the Defendant No.1 crystalizes the position as it was obtaining during the days of Rajpipla State. If that position has been altered by a legislative enactment nothing prevents the State of Gujarat from availing itself of the rights accruing to it under that statute. It is therefore not necessary to allow the said Civil Application and to permit the plaint to be amended. The learned Government Pleader has tried to argue that the statement made by the learned Advocate General to this Court in Special Civil Application No.194 of 1960 decided on 1st September, 1960 comes in the way of the State of Gujarat of availing itself of the rights said to have accrued under the Jagir Abolition Act. We do not think that is a correct submission. The Statement made by the learned Advocate General to this Court forbore the State of Gujarat from taking any action against Defendant No.1 in a summary manner in pursuance of the resolution passed by it on 24th December, 1959 Exh.214. That statement does not bar the State of Gujarat from exercising any independent rights which may be available to it under the Jagir Abolition Act. For these reasons we reject the Civil Application No.429 of 1971. Civil Application No.2764 of 1970 has been made by the State of Gujarat for producing additional evidence. The learned Government Pleader has submitted to us that this Civil Application is related to Civil Application No.429 of 1971. In our opinion, according to him, if the plaint is allowed to be amended, additional evidence will have to be allowed to be produced. According to him, Page 11 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT therefore Civil Application No.2764 of 1970 does not survive. We must therefore, reject Civil Application No.2764 of 1970. The Defendants Nos.1 and 5 have filed cross objections."
16. Thus, this Court, while dismissing the appeal filed by the State of Gujarat, clarified that nothing shall preclude the State of Gujarat from taking any action against the Dumaldar in a summary manner in pursuance of the resolution passed by it on 24th December, 1959. In other words, it would be open for the State of Gujarat to exercise any independent rights which may be available to it under the Jagar Abolition Act.
17. I shall now proceed to consider the present litigation keeping in mind the aforesaid background. I may clarify that the Dumaldar, I am talking about is the plaintiff in the present case. The plaintiff preferred the Special Civil Suit No.445 of 2003 against the Sardar Sarovar Narmada Nigam Ltd. as the defendant No.1 and the Government of Gujarat as the Defendant No.2, seeking the following reliefs;
"(1) Be pleased to declare that out of the property mentioned in the suit, for the village Gadher the rights on the land and that including trees, vegetation (Panchrav) and all the minerals and river, water reservoirs, graveyard etc. as decided earlier, are of the appellant.
(2) Be pleased to pass the stay order directing that the Respondent No.1 and 2 may not store the water with the help of dam on the land in question in mauje village Gadher, Ta: Nandod without acquiring the said land legally and paying its compensation, and may not do any act or get any act done on account of the same the appellant may be deprived of production of vegetation and minerals from the land of the ownership of the appellant.
(3) Be pleased to pass the order to pay the costs from the Respondents.Page 12 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT
(4) Be pleased to pass any other reliefs deemed fit and proper in the matter."
18. If I have to summarize the case put up by the plaintiff in the plaint, then it could be said that according to the plaintiff, he is the true and lawful owner of the subject property including the rights over the forest area land and the entire produce thereof. In other words, according to the plaintiff, he is the owner of the entire village Gadher which includes the fallow lands, water resources, Gauchar lands, graveyards, mines and minerals etc. It is his case that the river Narmada also flows through some portion of this area and he is the owner of that portion also. According to him, the Government constructed a huge dam called the Sardar Sarovar Dam and started storing water with effect from September, 2003. It is his case that the State of Gujarat encroached upon vast parcels of his land almost admeasuring 8273.38 acres without lawfully acquiring the same or without making any payment towards compensation. According to the plaintiff, the Sardar Sarovar Nigam has no right to store the water in the suit property.
19. The record and proceedings of the Special Civil Suit No.445 of 2003 would indicate that along with the plaint, the plaintiff produced as many as 59 documents (Xerox copies) to establish his title over the suit property. The plaintiff submitted his examination-in-chief in accordance with Order 18 Rule 4 of the CPC at Exh.35. Along with the examination-in- chief produced at Exh.35, the documents, referred to above, in the form of Xerox copies were produced. These documents, in the form of Xerox copies were ordered to be given tentative Page 13 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT exhibits with an understanding that the Trial Court would consider the admissibility and the relevancy of such documents at the final hearing stage of the suit. I may quote the order passed by the Principal Senior Civil Judge dated 28 th April, 2008, Exh.35, as under;
"Heard.
The documents as referred in the evidence and which are marked as 34/1 to 34/59 are given Exh. Nos. 36 to 94 with a condition that the evidentiary value of the same will be considered at the stage of final hearing. Adjourned for cross-examination.
20. The appellant herein filed its written statement Exh.19 dated 07.04.2004. The written statement reads as under;
"(1) The suit of the appellant is file without bona fide intention, beyond the truth and without any legal knowledge, therefore the Respondent does not admit it.
(2) It is not that apart from those facts of the suit application of the appellant clearly denied by the Respondent, rest of the facts of the suit application of the appellant are admitted. (3) With reference to the fact of the suit application of the appellant and its reply, the Respondent no.1 hereby states that the said entire facts of para nos.1 to 5 are not applicable to this office and even the appellant must prove said facts.
(4) As it is mentioned in para.6 of the suit application of the appellant, as established in pursuance of ...... none of the persons including the Respondents are having any right to intervene, interfere or encroach in village mauje Gadher, Ta.Nandod, out of the village as mentioned above : the Respondent No.1 hereby states as under that:Page 14 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT
Out of the said villages, the village mauje Gadher, Ta.Nandod is going to be submerged on account of Narmada Sardar Sarovar Dam, wherein rest of the lands bearing survey numbers as mentioned below are also going to be submerged. The said lands of mauje village Gadher were acquired pursuant to the Award Case No.23/80 and 69/88 and its valuation has been assessed and granted accordingly. The compensation of said lands has been paid to Shri Rupdevsinhji Dolatsinhji Gohil, the details thereof are as under Sr. No. Area Amount as per the award 27 0-46-54 4133-82 258 0-10-12 898-83 259 0-07-08 628-83 Out of the same, S. No. 0-10-12 898-83 S. No. 0-07-08 628-83 Total 1527-66 Total amount of compensation for the land 1s Rs.1527 66 paid through cheque no.02603 vide C.V.No.2, dated 17/09/1988 by this office. Further the amount of compensation of the land bearing S.No.27 admeasuring 046 54 has been paid total of Rs.4133-82 through cheque no.4453 H.O.No. -4, dated 30/12/1988. Apart from the same, there are no other land acquisitions in his name as per the revenue records. Therefore, their names are not declared in the award. The appellant is supposed to make note of the same.
(5) As the fact mentioned in para.7 of the Suit application of the appellant is not applicable to this office of ..., though the appellant is supposed to prove the said fact.
(6) Regarding the facts of para-8 of the suit application of the appellant, earlier the office has given the reply. Therefore, it is not necessary to repeat the same. Therefore, it is requested to Page 15 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT consider the relevant reply.
(7) With reference to para.9 of the suit application of the appellant, it is hereby stated that on account of dam construction, the water from the water reservoir has been stored in mauje village Gadher. In that connection, three survey numbers of the ownership of the appellant were going to be submerged, the compensation thereof has been already paid to the appellant, its Xerox copy has also been enclosed in this case. As per say of the appellant if the appellant has the land of his ownership under the jurisdiction of this office, the same has not been declared in the Land Acquisition Case Award. Therefore, no procedure thereof is to be done for the said land and that the appellant must take note of the same.
(8) As mentioned in para.10 of the suit application of the appellant that "as the Respondent No.1 of this case is a Corporation, established as per provisions of the Companies Act, upon considering this suit application as a part of the notice, on allowing the application to waive the service of notice, it is requested to file the present suit without service of notice. "
In response thereto, it is stated by the Respondent No.1 that as mauje village Gadher is going to be submerged on account of Sardar Sarovar Narmada Dam, the lands, houses and other properties have been acquired and each owner thereof have been given compensation against said acquisition. No other persons are left without paying compensation, the appellant must make note of the same.
(9) There is no reason for the appellant to make a suit application or to seek stay order. The reasons mentioned by the appellant are false and fabricated, the same are not admitted by the Respondent No.1.
(10) The Court does not have jurisdiction to conduct trial of said suit, therefore the appellant must prove its jurisdiction.Page 16 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT
(11) The appellant must prove the value of the suit.
(12) The appellant must prove the facts and documentary evidences where he has relied in this suit, against the Respondent No.1.
(13) The appellant is not entitled for any relief against us the respondent No.1, as sought for in the suit application.
(14) The appellant is not entitled to sought for or obtain any costs from us the Respondent No.1.
(15) Be pleased to dismiss the suit application and stay order application of the appellant, with costs, in the interest of justice.
(16) Be pleased to grant other reliefs deemed fit and proper from the Appellant."
21. Having regard to the pleadings of the parties to the suit, the Trial Court framed the following issues at Exh.30, which reads thus;
"1) Whether the plaintiff proves that he is the only legal successor of Bharmalsinhji and has right over the property and the income of theforest of all the seven villages?
2) Whether the plaintiff proves that defendants have no right to make encroachment over the land of village Gadher without acquiring or without paying compensation to the plaintiff?
3) Whether the defendant proves that they have acquired and paid the compensation regarding the land of village Gadher vide case No.2-3/1980 and 69/88?
4) Whether the defendant proves that defendant has no concern with the land except mentioned in para 7 of the written statement?
5) Whether the plaintiff is entitled to get Page 17 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT declaration?
6) What order and decree?"
22. The issues framed by the Trial Court, referred to above, came to be answered as under:
"1. In Affirmative.
2. In Affirmative.
3. In Negative.
4. In Negative.
5. In partly Affirmative.
6. In partly Affirmative.
7. As per final order."
23. The Trial Court proceeded to partly allow the suit of the plaintiff vide the judgment and order dated 10th May, 2010. The operative part of the order reads thus;
"ORDER
1. The suit of the plaintiff is hereby partly allowed and declare that the plaintiff is the owner of the suit land of village Gadher and plaintiff is entitled to get recent price at 6% interest since 2003 and defendant is ordered to pay within 6 months since decree.
2. Parties bear their own costs.
3. Decree is hereby ordered to draw accordingly."
24. The appellant herein, being dissatisfied with the judgment and decree passed by the Trial Court, referred to above, went in appeal before the District Court, Narmada. The First Appeal No.20 of 2010 came to be dismissed by the First Appellate Court vide judgment and order dated 19th November, 2011.
Page 18 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT25. The appellant herein, being dissatisfied with the judgment and order passed by the First Appellate Court, dismissing the appeal, came before this High Court by filing the Second Appeal No.29 of 2012. A learned Single Judge of this High Court (M.R. Shah, J., as His Lordship then was) partly allowed the Second Appeal No.29 of 2012 by quashing and setting aside the judgment and order passed in the Regular Civil Appeal No.29 of 2012 and remitting the matter to the Appellate Court for fresh decision. The order passed by this Court in the Second Appeal No.29 of 2012 reads thus;
"ADMIT. Shri Kashyap R. Joshi, learned advocate waives service of notice of Admission on behalf of respondent No.1 and Shri Mihir Bhatt, learned Assistant Government Pleader waives service of notice of Admission on behalf of respondent No.2. In the facts and circumstances of the case and with the consent of learned advocates appearing for respective parties, present Second Appeal is taken up for final hearing.
[1.0] Following main substantial question of law arises in the present Second Appeal."Whether the learned Appellate Court has committed an error in considering the Appeal and dismissing the same without following the procedure as required under Order 41 Rule 31 of the CPC i.e. without framing proper points for determination?"
[2.0]Present Second Appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred by the appellant herein- original defendant No.1 - Sardar Sarovar Narmada Nigam Ltd. To quash and set aside the impugned judgment and order dated19.11.2011 passed by the learned Additional District Judge,Narmada, at Rajpipla in Regular Civil Appeal No.20 of 2010 by which the learned Appellate Court has dismissed the said appeal preferred by the appellant herein as well as dismissed the cross appeal/cross objections filed by respondent No.1 herein -
Page 19 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENToriginal plaintiff.
[3.0] Considering the fact that while disposing off the Appeal as well as the cross objections filed by respondent herein, the learned Appellate Court has not framed proper points for determination, there is a broad consensus between the learned advocates appearing for respective parties that let the impugned judgment and order passed by the learned Appellate Court dismissing the Appeal as well as cross objections are quashed and set aside and the matter is remanded to the learned Appellate Court to decide and dispose of the Appeal as well as the cross objections afresh in accordance with law and on merits and after framing proper points for determination. Learned advocates appearing for respective parties do not invite any further reasoned order while quashing and setting aside the impugned judgment and order passed by the learned Appellate Court and remanding the matter to the learned Appellate Court.
[3.1]In view of the above broad consensus between the learned advocates appearing for respective parties, this Court is not assigning any further reasons while allowing the present Second Appeal and remanding the matter to the learned Appellate Court. However, suffice it to say that the manner in which the learned Appellate Court has disposed of the Appeal by not framing proper points for determination, the impugned judgment and order passed by the learned Appellate Court cannot be sustained. It appears that the learned Appellate Court has framed only one point for determination that whether the judgment and decree passed by the learned trial Court is contrary to law and fact and against the evidence or not? Except the above no point for determination has been framed by the learned Appellate Court. The learned Appellate Court while exercising appellate jurisdiction is required to frame the points for determination with respect to the issue or the matter involved in the case. Under the circumstances, the impugned judgment and order passed by the learned Appellate Court Page 20 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT cannot be sustained.
[4.0]In view of the above and for the reasons stated above and without further entering into the merits of the case and/or expressing anything on merits in favour of either parties and in view of the above, present Second Appeal succeeds and the impugned judgment and order dated 19.11.2011 passed in Regular Civil Appeal No.20 of 2010 by the learned Additional District Judge, Narmada, at Rajpipla is hereby quashed and set aside and the matter is remanded to the learned Appellate Court to decide the said Appeal as well as cross objections in the said Appeal filed by respondent No.1 herein afresh in accordance with law and on merits and after framing proper points for determination and after full discussion. Present Second Appeal is allowed to the aforesaid extent.
CIVIL APPLICATION NO.1711 OF 2012 In view of disposal of main Second Appeal, no further order in Civil Application No.1711 of 2012 and the same also stands disposed of."
26. Upon remand, the Addl. District Judge, Narmada at Rajpipla, once again, heard the Regular Civil Appeal No.20 of 2010 as well as the Cross Appeal/Cross Objections filed by the plaintiff. The first appeal filed by the appellant herein came to be dismissed, whereas the cross appeals/cross objections filed by the plaintiff came to be partly allowed. The operative part of the order passed by the First Appellate Court reads thus;
"2.1 The appeal is allowed.
2.2 Cross objections filed by the Respondent No.1 are partially allowed.
2.3 The necessary modifications are made in the judgment and order passed by the learned Principal Senior Civil Judge, Narmada at Rajpipla in Regular Civil Suit No.142 of 2006 dated Page 21 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT 10.05.2010. (Old Civil Suit No.445 of 2003).
2.4 The present appellant-original defendant No.1 is liable to pay compensation of the land owned by the plaintiff of Village Gadher from 05.11.2003 which is the date of filing of Regular Civil Suit and to pay interest at 6% on the price as prevailed thereon at simple interest at 6% to be plaintiff Respondent No.1.
2.5 The authorized officer of the office of District Inspector of Land Record (DILR), Narmadat at Rajpipla is appointed as Commissioner for executing direction contained in Para-4 of this order. The Commissioner for implementing directions contained in Para-4 will take up necessary steps in presence of both the parties and as per the market price of year November- 2003, the Commissioner to recover the amount with interest at simple rate at 6% and to deposit the same in the Court. The Present Respondent No.1/1 who is legal heir of deceased plaintiff will be required to bear the expenses of the commissioner.
2.8 Commissioner order to be issued as per this order.
2.9 Parties bear their own cost.
2.10 Decree to be drawn as above.
2.11 The original record of the Court be sent back along with this order."
27. Being dissatisfied with the judgment and order passed by the First Appellate Court, referred to above, the appellant is here before this Court with the present second appeal under Section 100 of the CPC.
28. The present second appeal came to be admitted by this Court vide the order dated 25th April, 2017 on the following substantial questions of law;
Page 22 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT1. Whether the courts below had the jurisdiction to decide the suit and appeal in view of the provisions of the Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953 (Section. 3, Sec. 8 and Sec.13), the Gujarat Private Forests (Acquisition) Act, 1972 (Sec. 3) and the Land Acquisition Act, 1894?
2. Whether the courts below had jurisdiction to decide the suit in view of the provisions of the Limitation Act as according to the appellant the suit was clearly time barred?
3. Whether the courts below were right in decreeing the suit by misinterpreting the judgment passed by the Hon'ble Gujarat High Court in First Appeal No.219 of 1963 and Special Civil Application No. 194 of 1960 and whether the courts below had rightly interpreted the judgment passed by the Hon'ble Gujarat High Court in First Appeal No. 219 of 1963 and Special Civil Application No. 194 of 1960?
4. Whether the courts below were right in ordering grant of compensation in a suit for declaration and injunction valued at Rs.300/0?
5. Whether the courts below were right in granting compensation and then awarding interest at 6% from the date of the suit that too within 6 months?
6. Whether the courts below were right in exhibiting documents as Exhibit Nos. 34/1 to 34/59 without the documents being proved and without giving the chance of rebuttal in view of provisions of Order - 13 of the Code of Civil Procedure and the provisions of the Evidence Act?
7. Whether the courts below were right in decreeing the suit without framing proper issues and answering them properly inspite Page 23 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT of the remand order by this Hon'ble Court?
8. Whether the courts below were right in not considering and discussing any of the judgments cited at the bar by proper interpretation? "
29. On 28th June, 2018, this Court passed the following order on the Civil Application No.02 of 2015 filed by the appellant herein for interim relief;
"On 25.04.2017, the following order was passed:
"Leave to amend.
Heard learned Additional Advocate General and learned Senior Counsel, Shri P.K. Jani appearing with learned advocate, Shri Hardik Rawal for the applicant, learned Senior Counsel, Shri Percy Kavina appearing with learned advocate, Shri Bhavin Satwara for respondent No.1 and learned AGP Shri Banaji for respondent no.2 Rule returnable on 4th July, 2017.
Learned Senior Counsel Shri Percy Kavina appearing with learned Advocate, Shri Bhavin Satwarad for, respondent no.1 and learned AGP Shri Banaji for respondent no.2 waive service of notice of rule.
Learned Senior Counse,l Shri Percy Kavina appearing , with learned Advocate Shri Bhavin Satwara, who appears on caveat for respondent no.1 makes a statement that till next date, execution application shall not be filed or proceeded."
2. Having heard the learned counsel appearing for the parties and having considered the materials on record and also considering the fact that the Second Appeal has been admitted on few substantial questions of law, I am of the view that the appellant has been able to make out a strong Page 24 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT prima facie case to have an interim order in his favour.
3. Let there be an interim order in terms of para 3(b). This civil application is disposed of.
4. Notify the second appeal No.223/2015 for final disposal on 12.07.2018 on top of the board.
Registry shall call for the R & P from the trial Court. "
Submissions on behalf of the appellant:-
30. Mr. P. K. Jani, the learned senior counsel assisted by Mr. Hardik Raval, the learned counsel appearing for the appellant vehemently submitted that the First Appellate Court committed a serious error of law in affirming the judgment and decree passed by the Trial Court by allowing the appeal filed by the original plaintiff. According to Mr. Jani, the judgment and decree passed by the Trial Court could be said to be vitiated on account of a very serious material illegality going to the root of the matter.
31. Mr. Jani submitted that the plaintiff tendered his examination-in-chief in the form of an affidavit under the provisions of Order 18 Rule 4 of the CPC at Exh.35. Along with the examination-in-chief, the plaintiff had produced as many as 59 documents in the form of Xerox copies. These documents, in the form of Xerox copies, were ordered to be exhibited by the Trial Judge with an understanding that the admissibility and the evidentiary value of the documents shall be looked into and discussed at the final hearing stage. However, according to Mr. Jani, there is not a whisper in the entire judgment passed by the Trial Court as regards the admissibility, relevancy or evidentiary value of all the 59 Page 25 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT documents relied upon by the plaintiff to establish his case. In other words, according to Mr. Jani, the Trial Court proceeded to allow the suit of the plaintiff without recording any finding as regards the admissibility of the documentary evidence relied upon. This material illegality, according to Mr. Jani, goes to the root of the matter vitiating the decree. Mr. Jani vehemently submitted that although a specific ground in this regard was raised before the First Appellate Court, the same has been ignored and the First Appellate Authority, on the contrary, committed a more serious error by holding as under:-
"Discussing further, the original Plaintiff has produced an Affidavit under Rule-4 of Order-18 of C.P.C. vide Exhibit- 35 in old R.C.S.No.445/2003 and new R.C.S.No. 142/2006. In the said Affidavit vide Exhibit-35, the original Plaintiff Rupdevsinhji Gohil has reiterated all the facts in para(2) to para(10) as mentioned in the original Plaint and in support of the facts mentioned in the Plaint, he has stated such facts in the Affidavit and also mentioned the documentary evidences in para(13) as discussed in above para(4). On the basis of the same, those documentary evidences have been admitted on record vide Exhibit-36 to 94, of which Exhibit-36, 37, 39, 40, 41, 93, 94 are thirty years old documents which have been produced from the possession of the Plaintiff on his behalf. Whereas, certified copies of the Revenue Record have been produced vide Exhibit-45 to Exhibit-88. The certified copy of the Judgment of R.C.S.No.01/62 has been produced vide Exhibit-42. The certified copies of First Appeal No.219/63 with Civil Application No.2764/1970 & Civil Application No.429/71 have been produced vide Exhibit-43. Thus, it cannot be agreed upon with the argument of the original Defendant Appellant that, as only xerox copies have been produced and as no witness has been examined in support on behalf of the original Plaintiff, the value of the documents can not be considered in the evidence as per order. "
32 Mr. Jani would submit that it is not possible to say what conclusion the Trial Court would have come to, if it had Page 26 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT discarded some of the documents relied upon by the plaintiff from consideration on the ground of its admissibility in evidence. It is submitted that the documentary evidence would prevail over the oral evidence and if the entire claim of the plaintiff is based on documentary evidence, then such documentary evidence should be proved in accordance with law. Mr. Jani would submit that merely on the basis of the oral statements or recitals in the examination-in-chief, the claim of the plaintiff cannot be said to have been established in any manner.
33. In the aforesaid context, Mr. Jani vehemently submitted that this Court should order for a retrial in the larger interest of justice. He would submit that the illegal procedure adopted by the Trial Court and overlooked by the First Appellate Court has resulted into a serious miscarriage of justice, warranting a retrial.
34. Mr. Jani submitted that this Court, in exercise of power under Section 100(5) of the CPC may frame an additional substantial question of law as regards retrial. In other words, Mr. Jani wants this Court to frame an additional substantial question of law whether the material illegality committed by the two courts below warrant a retrial. Mr. Jani, in support of his aforenoted submissions, has placed reliance on the following decisions of the Supreme Court;
(i) In the case of Remco Industrial Workers House Building Cooperative Society vs. Lakshmeesha M., & Ors., 2003 (11) SCC 666;
(ii) In the case of Mohan Kumar vs. State of Madhya Page 27 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT Pradesh & Ors., 2017 (4) SCC 92;
(iii) In the case of Mehulbhai Bipinbhai Tamboli & Ors. vs. Akshaybhai Ramanbhai Thakkar & Ors., Second Appeal No.66 of 2016, decided on 26th April, 2019.
35. Mr. Jani next submitted that the plaintiff had already received compensation towards the forest produce vide order passed by the Deputy Collector dated 01.12.1990. It is submitted that the plaintiff had filed the Special Civil Application No.3766 of 2004 in this High Court seeking enhancement in compensation granted by the Gujarat Revenue Tribunal vide order dated 26th September, 2003. The Special Civil Application No.3766 of 2004 was ordered to be rejected by this Court on 3rd March, 2016. It is argued that by virtue of the Bombay Merged Territories and Areas (Jagir Abolition) Act, 1953, the rights of the plaintiff got extinguished. In other words, the contention raised is that by virtue of the provisions of Section 3 of the Act, 1953, all the proprietary rights of Jagir came to be extinguished. Mr. Jani invited the attention of this Court to Section 3 of the Act, 1953, which reads as under:-
"Section 3: Abolition of Jagirs:
Notwithstanding anything contained in any usage, grant, sanad, order, agreement or any law for the time being in force, on and from the appointed date,--
(i) all jagirs shall be deemed to have been abolished ;
(ii) save as expressly provided by or under the provisions of this Act, the right of a Jagirdar to recover rent or assessment of land or to levy or recover any kind of tax, cess, fee, charge or any hak and the right of reversion or lapse, if any, vested in a jagirdar, and all other rights of a jagirdar or of any person legally subsisting on the said Page 28 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT date, in respect of a jagir village as incidents of jagir shall be deemed to have been extinguished. "
36. It is submitted that the villages in question were Jagir villages and were of the ownership of the plaintiff, but in view of the Act, 1953, the right, title and interest got extinguished and the only right available to a Jagir was to receive compensation under the scheme of the Act, 1953.
37. Mr. Jani, thereafter, invited the attention of this Court to the Gujarat Private Forests (Accusation) Act, 1972, more particularly, Section 3 of the Act, 1972, which reads as under:-
"3. Vesting of private forests in the State Government. -
(1) Notwithstanding anything contained in any law for the time being in force or in any settlement, grant, agreement, usage, custom or any decree or any order of any Court, Tribunal or any authority or any other document, with effect on and from the appointed day, all private forests in the State of Gujarat shall vest, free from all encumbrances, in, and shall be deemed to be, with all rights in or over the same appertaining thereto, the property of the State Government, and all rights, title and interest of the owner or any person other than the Government subsisting in any such forest on the said day shall be deemed to have been extinguished.
(2) Nothing contained in sub-section (1) shall apply to so much extent of land comprised in a private forest as is held by an occupant or tenant lawfully under his personal cultivation on the appointed day and as is not in excess of the ceiling area within the meaning of the expression in the Gujarat Agricultural Lands Ceiling Act, 1960 (Gujarat XXVII of 1961), for the time being in force or any building or structure standing thereon or appurtenant thereto.
Explanation. - In this section, the expressions "tenant" and Personal" cultivation" shall have the same meanings as they have in any law relating to tenancies of Page 29 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT agricultural lands for the time being in force in the State of Gujarat."
38. It is contended that the predecessor in title of the plaintiff had undertaken proceedings under the Act, 1972 seeking compensation and in view of the same, the plaintiff could be said to have lost all the rights in the forest and is not entitled to any relief as prayed for in the suit as well as in the cross- objections filed before the First Appellate Court.
39. Mr. Jani further submitted that without prejudice to his contention as regards the maintainability of the suit in view of the provisions of the Act, 1953 and the Act, 1972, the suit could be said to be hopelessly time barred. According to Mr. Jani, the plaintiff has conceded to the fact that the Government has been using the land in question since 1964. This fact was well within the knowledge of the plaintiff. According to Mr. Jani, the suit could be said to be time barred in view of Article 58 of the Limitation Act, 1963. The suit of the plaintiff came to be filed in November, 2003. The plaintiff was aware of the fact that the State Government has been using the suit land. The plaintiff was also well within the knowledge that the State Government has transferred the suit land to the Sardar Sarovar Narmada Nigam Limited. In such circumstances, the suit should have been dismissed on the ground of limitation itself.
40. In such circumstances, referred to above, Mr. Jani prays that there being merit in this second appeal, the same may be allowed and a retrial of the entire suit may be ordered in the larger interest of justice.
Submissions on behalf of the respondent No.1 (original Page 30 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT plaintiff)
41. Mr. Nirav Thakkar, the learned counsel appearing for the original plaintiff has vehemently opposed this second appeal. He would submit that no error, not to speak of any error of law, could be said to have been committed by the courts below, warranting any interference in this second appeal.
42. Mr. Thakkar wants this Court to formulate an additional substantial question of law as under:-
"Whether the First Appeal before the Lower Appellate Court and the present Second Appeal before this Hon'ble Court at the instance of the Sardar Sarovar Narmada Nigam Ltd. (original defendant No.1) only, in absence of any challenge by the State of Gujarat (original defendant No.2) are maintainable at law?"
43. Mr. Thakkar would submit that the subject matter of the suit is the land of village Gadher. The plaintiff prayed for a declaration that the lands of the village Gadher including the trees, minerals etc. are of his ownership and the defendants have no right to occupy the land without adequate compensation or without acquiring by due process of law. It is argued that the State of Gujarat claiming to be the lawful owner of the suit land allotted the same to the appellant (SSNNL) for the purpose of construction of the Dam. The construction of the Dam led to the entire land getting submerged in water.
44. Mr. Thakkar would submit that in the suit, the State of Gujarat being the defendant No.2, merely supported the defendant No.3 (SSNNL). Only a written statement was filed for Page 31 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT the purpose of opposing the suit. No oral or documentary evidence has been led by the defendants in the suit.
45. Mr. Thakkar would submit that this Court may not disturb the concurrent findings of fact recorded by the two courts below. Mr. Thakkar gave a fair idea as regards the history of this litigation.
46. Mr. Thakkar submitted that the issue as regards the applicability of the Jagir Abolition Act is sought to be raised for the first time before this Court in the present second appeal. No such defence was taken before the Trial Court in the suit proceedings. There are no pleadings in this regard except a bald assertion in the written statements that the suit is not maintainable as the trial court has no jurisdiction to try the suit.
47. Mr. Thakkar would submit that the monetary compensation has been rightly awarded in view of the fact that the suit land is now occupied by the water stored by the Dam.
48. Mr. Thakkar, in the last, submitted that the plea for retrial is without any merit. According to Mr. Thakkar, the issue with regard to the admissibility of the documents relied upon by the plaintiff has been duly considered by the First Appellate Court. According to Mr. Thakkar, it is true that while giving tentative exhibits to the documents relied upon by the plaintiff, the Trial Court stated that its admissibility and evidentiary value would be considered and discussed at the stage of final hearing, however, the failure on the part of the Trial Court to discuss or render any finding as regards such documents, by itself, would not vitiate the decree passed in favour of the Page 32 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT plaintiff. Mr. Thakkar laid much emphasis on the fact that some of the documents relied upon, are thirty years old and, in such circumstances, the First Appellate Court rightly drew presumption of its genuineness under Section 90 of the Evidence Act. He would argue that some of the documents are in the form of revenue records. According to Mr. Thakkar, it is true that all the 59 documents relied upon by the plaintiff and exhibited tentatively are Xerox copies, still, those are admissible as secondary evidence.
49. Mr. Thakkar vehemently submitted that at no point of time, any objection was raised on behalf of the defendants for the purpose of admitting the Xerox copies of all the 59 documentsi n evidence. According to Mr. Thakkar, the objection could have been raised first in point of time as regards the admissibility of the documents when the Trial Court decided to give tentative exhibits at Exh.35. It is further argued that at no point of time in the course of the trial, any objection was raised as regards the admissibility of the documents. According to Mr.Thakkar, the acquisition on the part of the defendants does not permit them now to raise the issue with regard to the admissibility of secondary evidence in the form of Xerox copies.
50. In such circumstances, referred to above, Mr. Thakkar prays that there being no merit in this second appeal, the same may be dismissed.
ANALYSIS
51. I have given more than a fair idea as regards the rival Page 33 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT claims of the parties in the present litigation. I have also talked about the endorsement made by the Trial Court below Exh.35 while giving tentative exhibits to all the documents (xerox copies) relied upon by the plaintiff in support of his claim. I have also taken note of and referred to that part of the observations made by the First Appellate Court as regards the admissibility of the documents relied upon by the plaintiff. One thing is as clear as a noon day that the Trial Court committed a serious blunder in maintaining absolute silence as regards the admissibility of the documents relied upon by the plaintiff. The Trial Court was not only expected but rather obliged in law to discuss as regards the admissibility of the documents while finally appreciating the evidence. In other words, the Trial Court was obliged in law to render its findings as regards the admissibility of the documents, keeping in mind the endorsement below Exh.35, referred to above. The moot question is what would be the legal implication of such a serious lapse?
52. Before I undertake the aforesaid exercise, let me give a fair idea as regards the pleadings in the plaint, the averments made in the examination-in-chief and the averments made in the written arguments Exh.114 filed by the appellant herein before the Trial Court.
53. In the plaint, I do not find any pleadings as to why Xerox copies of the documents are being relied upon. In other words, there are no pleadings to lay a foundation for the purpose of adducing secondary evidence. There is nothing to indicate in the plaint nor in the examination-in-chief of the plaintiff as to in whose possession the original documents are and in what Page 34 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT manner, the photocopies were obtained. To put it in other words, the plaintiff could be said to have failed to explain as to what were the circumstances under which the photostat copies were prepared and who was in possession of the original documents at the time its photographs were taken. On the other hand, in the written arguments Exh.114 filed on behalf of the defendants, a specific plea has been raised as regards the documentary evidence adduced. I may quote the true English translation of Para-2 of the written arguments on record (Exh.114):-
"The Plaintiff has tendered his examination-in-chief in the form of an affidavit at Exhibit-35 and other documents at Exhibits-36 to Exhibit-94. The Hon'ble court has passed an order below the said affidavit at Exhibit-35 that "The documentary evidences at mark-34/1 to 34/59 referred to in the affidavit be exhibited on the condition that the evidentiary value of the same shall be determined at the stage of final hearing."
But, the plaintiff has not proved any of the said documents before the Hon'ble court. Most of the documents at mark-34/1 to 34/59, submitted by the plaintiff, are the xerox copies and none of the said documents have been proved by the plaintiff in accordance with the provisions of the Evidence Act."
54. In the aforesaid context, I may look into the provisions of Order 13 Rule 4 of the CPC. Order 13 Rule 4 reads thus:-
"Endorsements on documents admitted in
evidence:-
(1) Subject to the provisions of the next following sub- rule, there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars, namely :-
(a) the number and title of the suit, (b) the name of the person producing the document, Page 35 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT
(c) the date on which it was produced, and
(d) a statement of its having been so admitted, and the endorsement shall be signed or initialed by the Judge. (2) Where a document so admitted is an entry in a book, account or record, and a copy thereof has been substituted for the original under the next following rule, the particulars aforesaid shall be endorsed on the copy and the endorsement thereon shall be signed or initialed by the Judge."
55. Rule 14 of Order 7 CPC enjoins upon the plaintiff to produce a list of documents along with the plaint if he wants to rely on any documents. The documents are often annexed to the pleadings filed in the court. In the civil suits, these documents are looked into by the court for the purpose of determining the rights and liabilities of the parties to the suit proceedings. The documents merely annexed to the pleadings cannot be considered by the Court at the final hearing of the suit. The parties must take steps to have their documents admitted into evidence. In other words, to get them "marked" as exhibits by the Court and to then prove those documents according to law. Such exercise is carried out under Order 13 Rule 4(1) of the CPC referred to above. Indisputably, in the case on hand, there was no judicial determination by the Trial Judge as to the nature of the documents and its admissibility in evidence. In a matter like this, unless and until there is a judicial determination, it cannot be said that the documents have been admitted in evidence though they are marked by giving tentative exhibits. Mere marking of the documents itself is not sufficient and there should be judicial determination as to the nature of the documents and its admissibility. In Shalimar Chemical Works Ltd. vs. Surendra Oil & Dal Mills (Refineries), 2010 (8) SCC 423, the Supreme Court held Page 36 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT that the admissibility of a document has to be decided at the stage of admission itself, instead of leaving it to be decided at a later stage. When the Trial Court provisionally admitted the photocopy of a documents subject to objection of proof and admissibility, it was held therein that the photocopy should have been rejected at the threshold. I may quote the observations made by the Supreme Court in Para 12-
"12. On a careful consideration of the whole matter, we feel that serious mistakes were committed in the case at all stages. The trial court should not have "marked" as exhibits the Xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants. It should have declined to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility The appellant, therefore, had a legitimate grievance in appeal about the way the trial proceeded. The learned single judge rightly allowed the appellant's plea for production of the original certificates of registration of trade mark as additional evidence because that was simply in the interest of justice and there was sufficient statutory basis for that under clause (b) of Order 41, Rule 27. But then the single judge seriously erred in proceeding simultaneously to allow the appeal and not giving the defendants/respondents an opportunity to lead evidence in rebuttal of the documents taken in as additional evidence. The division bench was again wrong in taking the view that in the facts of the case, the production of additional evidence was not permissible under Order 41, Rule 27. As shown above the additional documents produced by the appellant were liable to be taken on record as provided under Order 41, Rule 27 (b) in the interest of justice. But it was certainly right in holding that the way the learned single judge disposed of the appeal caused serious Page 37 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT prejudice to the defendants/respondents. In the facts and circumstances of the case, therefore, the proper course for the division bench was to set aside the order of the learned single judge without disturbing it insofar as it took the originals of the certificates of registration produced by the appellant on record and to remand the matter to give opportunity to defendants/respondents to produce evidence in rebuttal if they so desired. We, accordingly, proceed to do so. The judgment and order dated April 25, 2003 passed by the division bench is set aside and the matter is remitted to the learned single judge to proceed in the appeal from the stage the original of the registration certificates were taken on record as additional evidence. The learned single judge may allow the defendants/respondents to lead any rebuttal evidence or make a limited remand as provided under Order 41, Rule 28."
56. It is a settled position of law that mere marking of a document as an "exhibit" would not be sufficient to treat it as admitted in evidence. In Attili Venkanna v. Parasuram reported in AIR 1929 Mad 552, the Madras High Court rejected the contention that merely because the endorsement mentioned in O. 13, R. 4 of the CPC, has been made upon a document--an endorsement which purports to admit the document in evidence--it was admitted in evidence. The Court held as under:
"This argument would seem to involve that the mere mechanical act of endorsement is sufficient to constitute admission in evidence and that a judicial consideration of its admissibility cannot be had after such endorsement has been made, and this in effect amounts to a contention that the admission of a document in evidence may be done by a purely mechanical act.
In the first place it is very doubtful whether in the present case the provisions of O. 13, R. 4, have Page 38 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT been complied with, for the endorsement under that rule must be signed or initialled by the Judge. Under Sect. 2 (20), Civil Procedure Code, 'signed' includes 'stamped' but there is no provision that initials may also be stamped. In the present case the Judge's initials were placed on the document by means of a rubber stamp and certainly the placing of such a stamp by a third person could not amount to initialling by the Judge and it is not at all clear as to whether the stamp was affixed by the Judge himself or by a third person. I, however, think it is unnecessary to enquire as to who affixed the rubber stamp because it appears to me that the authorities are clear that a document is not deemed to have been admitted in evidence until the Judge has applied his mind to a consideration of its admissibility. The mere endorsement under O. 13, R. 4, does not necessarily imply such, consideration and in the present case it is clear from the District Munsif's judgment that he had not considered the admissibility until after the endorsement had been made."
57. The Madras High Court relied upon a number of older decisions for aforequoted proposition, including the judgment of Sitaram v. Thakurdas, reported in AIR 1919 Nag 141 wherein the Court of the Chief Judicial Commissioner interpreting the phrase "admitted in evidence" occurring in Section 36 of the Stamp Act, 1899 held as under:
"I need not only refer to Chunilal Tulsiram v. Mulahai[[1910] 6 I.C. 903.] , where it was held as follows: The expression admitted in evidence in Section 36 of the Stamp Act, means the act of letting the document in as part of the evidence, but it must be taken in as a result of judicial determination of the question whether it can be admitted in evidence of not for want of stamp. In other words the Court admitting it must have applied Page 39 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT its mind consciously to the question whether the document is admissible or not."
58. Thus, the judicial determination on admissibility is a sine qua non without which a document cannot properly be said to be admitted in evidence so as to be relied upon in the final judgment by the Trial Court. However, in practice, it was found that such judicial determination of admissibility prolonged the evidence taking stage of the Trial and led to delays. In order to overcome this, the Supreme Court in Bipin Shantilal Panchal v. State of Gujarat reported in (2001) 3 SCC 1 suggested a substitute procedure, which was summarized in Paragraph No. 14 of the judgment as follows:
"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.)"
59. This High Court (Coram: J.B. Pardiwala, J.) in the State of Gujarat v. Ashokkumar Lavjiram Joshi, reported in 2018 (2) GLH 166 while explaining the scope of the judgment of the Supreme Court in Bipin Shantilal Panchal (Supra) has Page 40 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT reiterated that once an objection as to admissibility is raised, the document in question can be tentatively marked but the objection nevertheless has to be decided at the stage of final hearing. It was observed as follows:
"On plain reading of the decision of the Apex Court in the case of Bipin Panchal (supra), it is apparent that the same does not deal with an objection as regards proof of a document or insufficiency of proof or incorrect mode of proof. The said judgment deals with objection regarding the admissibility of the document in evidence which is a separate category of objection as distinguished from an objection regarding proof as laid down by the Apex Court in the case of R.V.E.Venkatachala (supra). It is true that the procedure laid down by the Apex Court in the case of Bipin Panchal (supra) will have to be followed by the Courts sub-ordinate to this Court. However, the said decision of Apex Court is applicable only to one category of objection and, i.e., regarding the admissibility of the document in evidence and that decision has no application when an objection is raised to the proof or to irregular/insufficient mode of proof of a document. An objection raised regarding proof of documents or insufficiency of proof or of adopting incorrect mode of proof has to be dealt with immediately by the Trial Court before proceeding with the recording of the cross- examination. Only in a case where the said adjudication involves a decision on complicated questions which require a very detailed adjudication, it can be postponed till the final hearing. In a case where a document is proved in accordance with the Evidence Act but an objection is raised to the admissibility of the said document, as held by the Apex Court in the case of Bipin Panchal (supra), such document can be tentatively marked as an exhibit as objection to the admissibility can be decided at the stage of final hearing as contemplated in the decision of the case of Bipin Panchal (supra).
60. Even much before the judgment in Bipin Shantilal Panchal (Supra), the procedure prescribed therein was often Page 41 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT adopted by the courts when dealing with the objections raised against the admissibility of documentary evidence. However, it has been held that this did not mean that the Trial Court could mark the documents as Exhibits tentatively without applying its mind as to the question of admissibility. In Ram Rattan v. Bajrang Lal reported in (1978) 3 SCC 236, in the context of objections as to admissibility on the ground that the documents in question were insufficiently stamped, the Supreme Court underscored the importance of the obligation of the Trial Court to apply its mind to the question of admissibility before a document could be said to be admitted in evidence for the purposes of Section 36 of the Stamp Act, 1899. It was ultimately held therein that tentative marking of exhibits would not mean that the documents were admitted in evidence. It was further held that after marking the documents tentatively and subject to objections, it was obligatory on the Trial Court to decide the objection before the suit is finally disposed off. The Court held as under:
"6. When the document was tendered in evidence by the plaintiff while in witness box, objection having been raised by the defendants that the document was inadmissible in evidence as it was not duly stamped and for want of registration, it was obligatory upon the learned trial Judge to apply his mind to the objection raised and to decide the objects in accordance with law. Tendency sometimes is to postpone the decision to avoid interruption in the process of recording evidence and, therefore, a very convenient device is resorted to, of marking the document in evidence subject to objection. This, however would not mean that the objection as to admissibility on the ground that the instrument is not duly stamped is judicially decided; it is merely postponed. In such a situation at a later stage before the suit is finally disposed of it would none-Page 42 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT
the-less be obligatory upon the court to decide the objection. If after applying mind to the rival contentions the trial court admits a document in evidence, Section 36 of the Stamp Act would come into play and such admission cannot be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. The court, and of necessity it would be trial court before which the objection is taken about admissibility of document on the ground that it is not duly stamped, has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case and where a document has been inadvertently admitted without the court applying its mind as to the question of admissibility, the instrument could not be said to have been admitted in evidence with a view to attracting Section 36 (see Javer Chand v. Pukhraj Surana) [AIR 1961 SC 1655] . The endorsement made by the learned trial Judge that "Objected, allowed subject to objection", clearly indicates that when the objection was raised it was not judicially determined and the document was merely tentatively marked and in such a situation Section 36 would not be attracted."
61. It is true that in the case at hand, no objection was raised on behalf of the defendants at the time when the Trial Court thought fit to admit the documents in evidence by giving tentative exhibits. However, the situation would be no different if no objections had been raised regarding the admissibility of a document since regardless of the procedure followed by the Trial Court, before a document could be said to have been admitted into evidence, it is incumbent upon the Trial Court to apply its mind to the question of its admissibility. The Karnataka High Court in Narasamma v. Arjun M. Menda, 1995 SCC OnLine Kar 209 : ILR 1996 Kar 136 has held that "[...] even where defendants did not raise any objections at Page 43 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT the time of marking the document in question as Ex. P1. But, it does not absolve the responsibility placed on the Court in examining the document for admissibility [sic]"
62. At this stage, let me refer to a decision of the Bombay High Court in the case of Pandappa Mahalingappa vs. Shivalingappa Murteppa & Ors.,reported in AIR 1946 Bombay 193. I quote the relevant observations;
"As held in 10 L.A. 79 and 5 Bom. L.R. 708 the discretion exercised by the trial Court in admitting secondary evidence on the ground that the original is lost should not be interfered with in appeal. But it is urged that the certified copy should not have been exhibited without proof of the execution. From the application (Ex.66) and the roznama it appears that the trial Court exhibited it under S. 90, Evidence Act, on the ground that it was more than 30' years old. In the lower appellate court the admissibility of the document does not appear to have been challenged. It is urged that as held in 44 Bom. 192 the erroneous omission before the lower Courts to objuect to the admission of evidence does not make that evidence relevant. The principle of that ruling, however, applies only where the document is per se irrelevant or inadmissible and no objection was taken to its admissibility: 8 Pat. 788 Where evidence is admitted in the trial Court without any objection to its reception, and the evidence is admissible and relevant, then no objection will be allowed to be taken to its reception at any stage of the litigation on the ground of improper proof. But if the evidence is irrelevant or inadmissible, as for instance, owing to want of registration, omission to take objection to its reception does not make it admissible, and the objection may be raised even in appeal for the first time; 28 L.A. 106. As observed by Das J. in A.L.R. 1922 Pat. 122 "the question of relevancy is a question of law and can be raised at any stage, but the question of proof is a question of procedure, and is capable of being waived."Page 44 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT
In this case the secondary evidence of the mortgage-deed was held to be admissible as the original was lost. What is now urged is that the execution should have been proved and this objection was not raised either in the trial Court or in the lower appellate Court. It is however true that no evidence was adduced to prove the execution of the original of Ex.68 as the trial Court was prepared to raise the presumption in favour of the genuineness of the document under S. 90, Evidence Act. Whether such a presumption can be raised or not is a question of law, and it can, therefore, be urged at any stage of the litigation. It is now well settled by the ruling of the Privy Council in 37 Bom. L.R. 805 that the statutory presumption under S. 90, Evidence Act, cannot be made in respect of a document merely on production of its copy under S. 65 of the Act. Their Lordships observed (p. 811) "Section 90 clearly requires the production to the Court of the particular document in regard to which the Court may make the statutory presumption. If the document produced is a copy, admitted under S.65 as secondary evidence, and it is produced from proper custody, and is over 30 years old, then the signatures authenticating the copy may be presumed to be genuine."
63. As stated hereinabove, this Court in the State of Gujarat v. Ashokkumar Lavjiram Joshi (Supra) has clarified that the decision of the Apex Court in Bipin Shantilal Panchal (Supra) is applicable only to one category of objection i.e., regarding the admissibility of the document in evidence and that decision has no application when an objection is raised to the proof or to irregular/insufficient mode of proof of a document. The question then arises as to whether the failure to lay the foundation for secondary evidence can be said to be a defect pertaining to the mode of proof or an issue of admissibility?
64. In the specific context of secondary evidence admitted by Page 45 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT the Trial Court by marking exhibits without any foundation for leading the secondary evidence having been laid in the Affidavit in lieu of the Examination in Chief, this Court in Kalidas v Babaldas, reported in (1993) 2 GLR 1645 has held that "Section 65 of the Indian Evidence Act is clear that that no secondary evidence could have been permitted to be led without laying any foundation therefor as provided under Section 65 of the Evidence Act.".
65. This Court (Coram: J.B. Pardiwala, J.) in Akbarbhai Kesarbhai Sipai vs Mohanbhai Ambabhai Patel, [C/SA/183/2014] has reiterated that a person proposing to give secondary evidence by invoking clauses (a), (b) and (c) of Section 65 of the Evidence Act, has to first lay a foundation to the effect that the document is not in his possession and has not been produced inspite of a notice by the person who is in possession of the same; that the existence, condition or contents of the original have been proved to be admitted in writing or that the original has been destroyed, lost or cannot be produced, respectively.
66. The Supreme Court in H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240 : (2011) 2 SCC (Civ) 209, relying on several of its previous decisions and various High Court has held that it was the obligation of the Court to decide the question of admissibility of a document in secondary evidence before making an endorsement thereon. The relevant passage is reproduced hereunder:
"12. The provisions of Section 65 of the 1872 Act provide for permitting the parties to adduce secondary evidence. However, such a course is Page 46 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. (Vide Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] , State of Rajasthan v. Khemraj [(2000) 9 SCC 241 : AIR 2000 SC 1759] , LIC v. Ram Pal Singh Bisen [(2010) 4 SCC 491 : (2010) 1 SCC (L&S) 1072 : (2010) 2 SCC (Civ) 191] and M. Chandra v. M. Thangamuthu [(2010) 9 SCC 712 : (2010) 3 SCC (Civ) 907] .)"
67. The Supreme Court in U. Sree v. U. Srinivas, (2013) 2 SCC 114, applied H. Siddiqui (Supra) and dislodged the admissibility of secondary evidence where the Trial Court (Family Court) had not discussed anything relating to the foundational evidence and the High Court in that case had only mentioned that "when the letter was summoned and there was a denial, the secondary evidence is admissible".
68. The observations in H. Siddiqui (Supra) and followed in U. Sree (Supra) would suggest that where secondary evidence is tendered without laying any foundation for the same, it would be a question of admissibility and not mode of proof. The language employed by the Supreme Court is that "secondary Page 47 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section." and further that "the court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon."
69. Regardless of whether the Trial Court follows the procedure of marking tentative exhibits and postpones the decision on admissibility or decides the question of admissibility before the document is marked as an exhibit, secondary evidence is inadmissible without foundational evidence justifying the leading of such secondary evidence and that the Trial Court is obliged to discuss the foundational evidence and issue a finding as to its admissibility. A failure to apply its mind to the question of admissibility of secondary evidence, be at whatever stage of the proceedings, would effectively mean that the said documentary evidence has not been admitted in evidence and cannot be relied upon by the Trial Court at the time of final judgement.
70. It was expected of the First Appellate Court to look into the aforediscussed issue with all seriousness and rectify the error in accordance with law, but as noted above, the First Appellate Court travelled beyond the wisdom of the Trial Court. A very lackadaisical approach could be said to have been adopted by the First Appellate Court when it thought fit to observe that what is the big deal as regards the omission or failure on the part of the Trial Court in discussing or recording findings as regards the admissibility of the documents. The Page 48 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT First Appellate Court says that some of the documents are thirty years old and though they are all Xerox copies, still a presumption can be raised as regards its genuineness under Section 90 of the Evidence Act.
71. Law is now well-settled that the presumption arising under Section 90 of the Evidence Act is applicable to original documents and not to xerox or certified copies thereof even if the original documents might have been more than thirty years' old, admission of such documents, even without objection, would not authorise the Court to raise a presumption of due execution of the original documents or genuineness of the contents thereof. In this context, the observations made by the Privy Council in the decision reported in AIR 1935 Privy Council, 132 (Basant Singh and Ors. v. Brij Raj Saran Singh and Ors.) are very appropriate. After referring to Section 90 of the Evidence Act and some of the earlier decisions on the point, it was observed :
".............. In face of the clear language of Section 90 their Lordships are enable to accept those decisions as sound. The section clearly requires the production to the Court of the particular document, in regard to which, the Court may make the statutory presumption. If the document produced is a copy admitted under Section 65 as secondary evidence, and it is produced from proper custody and is over 30 years old, then the signatures authenticating the copy may be presumed to be genuine, as was done in 56 LA. 146 (Seethayya v. Subramanya Somayajulu = AIR 1929 IP.C. 115); in that case the dispute was as to the terms of a grant, which had admittedly been made. Their Lordships approved of the decision in 75 N.L.R. 192 (Shripuja v. Kanhayalal = AIR 1918 Nag. 114) in which the Judicial Commissioner held that production of a copy was not sufficient to justify the presumption of due execution of the original under Section 90, and they are unable to agree with the Page 49 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT subsequent overruling of that decision in 30 N.L.R. 155 (Shri Gopinath Maharaj Sansthan v. Moti, A.L.R. 1934 Nag. 67)......."
72. The above referred decision of the Privy Council appears to have been universally followed thereafter in several other decisions including those of the Supreme Court.
73. In the decision reported in AIR 1954 Supreme Court, 606 (Sital Das v. Sant Ram and Ors.), it was observed:
"............. The language of Section 90 of the Indian Evidence Act require the production of the particular document in regard to which the Court is invited to make the statutory presumption. If the document produced is a copy, admissible as secondary evidence under Section 65 of the Evidence Act and is produced from proper custody and is over 30 years old, then only the signatures authenticating the copy may be presumed to be genuine; but production of a copy is not sufficient to raise the presumption of the due execution of the original (vide Basant Singh v. Brij Raj Saran Singh : AIR 1935 PC 132 (C)......"
74. Similarly, in the decision reported in AIR 1956 Supreme Court, 305 (Harihar Prasad Singh and Anr. v. Deonarain Prasad and Ors.); it was observed :
"But Exhibits A-1 and A-1 (1) are merely certified copies of the objection petitions filed before the Survey Officer and not the originals, and it was held in 'Basant Singh v. Brij Raj Saran Singh, AIR 1935 PC 132 (C) that the presumption enacted in the section can be raised only with reference to original documents and not to copies thereof."
75. It was observed by the Supreme Court in its decision reported in AIR 1968 SC 947 (Kalidindi Venkata Subbaraju and Ors. v. Chintalapati Subbaraju and Ors.):
".......The High Court appears to have relied upon Section Page 50 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT 90 of the Evidence Act and to have drawn the presumption that the will being more than 30 years old it was duly executed and attested by the persons by whom it purported to have been executed and attested. Such a presumption, however, under that section arises in respect of an original document. (See Munnalal v. Mt. Kashibai, AIR 1947 PC 15). Where a certified copy of a document is produced the correct position is as stated in Basant Singh v. Brij Raj Saran Singh, 67 Ind. App. 180 = (AIR 1935 PC 132) where the Privy Council laid down that if the document produced in a copy admitted under Section 65 as secondary evidence and it is produced from proper custody and is over 30 years old only the signatures authenticating the copy can be presumed to be genuine. The production of a copy thereafter does not warrant the presumption of due execution of the original document. The Privy Council repelled the argument that where a copy of a will has been admitted the Court is entitled to presume the genuineness of such will which purports to be 30 years old. Relying on the words 'where any document purporting or proved to be 30 years old' in Section 90, the Privy Council held that the production which entitles the Court to draw the presumption as to execution and attestation is of the original and not its copy and that the decisions of the High Courts of Calcutta and Allahabad on which the argument was based were not correctly decided. This view has since then been approved of by this Court in Harihar Prasad v. Deo Narain Prasad, 1956 SCR 1 at p. 90 (AIR 1956 SC 305 at p. 309). The High Court therefore was not entitled to presume from the production of the copy either the execution or the attestation of the said will ......."
76. Again the very same position was reiterated in the decision reported in AIR 1971 Supreme Court, 2342 (Shiv Lal and Ors. v. Chatram and Ors.), wherein it was observed :
'......... Ex. P-5 is a certified copy of a statement said to have been made in a mutation proceeding. Its original has not been produced. No witness has been examined to speak to the fact that the persons who are shown to have signed the original have in fact signed the same or those persons were the mortgagors or their Page 51 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT representatives. The signature on the original cannot be proved by production of a certified copy. Nor can the Courts raise any presumption under Section 90 of the Evidence Act in that regard. See Harihar Prasad Singh v. Must, of Munshi Nath Prasad, 7956 SCR 1 = (AIR 1956 SC
305)...."
77. In view of the aforenoted catena of decisions, there cannot be any escape from the conclusion that the lower appellate court committed a grave error of law in holding that the Xerox copies of all the documents are admissible in evidence by applying the principle contained in Section 90 of the Evidence Act.
78. It is not only the question of admissibility of the documents in evidence, but the Trial Court is obliged to discuss and record a finding as to in what manner the documents relied upon are relevant for the purpose of establishing the claim put forward by the plaintiff.
79. The duty is cast upon every Judge to examine every document that is sought to be marked in evidence. The nomenclature of the document is not decisive. The question of admissibility will have to be decided by reading the document and deciding its nature and classification. Even while recording ex-parte evidence or while recording evidence in the absence of the counsel for the other side, the Court should be vigilant and examine and ascertain the nature of the document proposed to be marked and ensure that it is a document which is admissible. The Court should not depend on the objections of the other counsel before considering whether the document is admissible in evidence or not. Let me give a simple illustration at this stage. Take a case in which Page 52 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT although a summons has been served upon the defendant, yet, the defendant fails to appear before the court and oppose the suit filed by the plaintiff. The Trial Court, thereafter, would decide to proceed ex-parte. Could it be said that as the defendant has not appeared, the case of the plaintiff as put up is to be accepted and a decree be drawn in terms of the relief claimed in the plaint? In other words, could it be said that as the defendant has not appeared, the documentary evidence, relied upon by the plaintiff in any form is to be just accepted in evidence and is deemed to have been proved in accordance with law?. The answer to both the aforesaid questions has to be in the negative. The objections as to the admissibility of the documents in evidence may be classified into two classes; (I) an objection that the document which is sought to be proved is itself admissible 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 and 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 later 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. It is the duty of a Court of Law to exclude all irrelevant or inadmissible evidence even if no objection has been taken by the opposite side.
Page 53 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT80. In the case on hand, the order of the Trial Court at Exh.35 speaks of receiving all the documents only without passing a judicial order on its admissibility. In other words, what might have weighed with the Trial Court is to avoid delay in the trial of the suit and, in such circumstances, thought fit to tentatively exhibit the documents with the understanding that its admissibility and relevancy shall be looked into at the final hearing stage. This is the reason why I have referred to above the relevant paragraph of the written arguments Exh.114 filed by the defendants (appellants herein). In the written arguments, the appellants have raised the plea as regards the admissibility of all the documents relied upon by the plaintiffs and which ought to have been considered by the Trial Court.
81. The Supreme Court in United India Assurance Co. Ltd. V. Anbari and other, 2000 (10) SCC 523 while dealing with the photocopy of licence of a driver expressed the view as under :-
"3. Learned counsel for the appellant submitted that the point regarding validity of the driver's licence was raised by the appellant before the Motor Accidents Claims 8 Tribunal and the Tribunal in accepting photocopy of a document purporting to be the driver's licence and recording a finding that the driver had a valid licence, has committed a grave error of law. He also submitted that the High Court has not dealt with the said contentions of the appellant and without giving any reason has dismissed the appeal. The Tribunal and also the High Court have failed to appreciate that production of a photocopy was not sufficient to prove that the driver had a valid licence when the fact was challenged by the appellant and genuineness of the photocopy was not admitted by it. Thus, the Apex Court has held that photocopy was not sufficient to prove that driver had a valid licence. By following the aforesaid decision of Supreme Court, Shri Justice Dipak Misra, J (as His Page 54 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT Lordship then was) in Haji Mohd. Islam and another v. Asgar Ali and Another AIR 2007 MP 157 has held that when a photocopy without any reasonable source has been filed, it is not permissible as secondary evidence. Yet there is another decision of this Court in W.P. No.8224/2010 (Sunil Kumar Sahu v. Smt. Awadharani) decided on 31.08.2010 wherein it has been held that photocopy of a document is not admissible as secondary evidence under Section 65 of the Evidence Act. "
82. In the case of Kalyan Singh vs. Smt. Chhoti and others, reported in AIR 1990 SC 396, the Apex Court has held that ordinary copy of the sale deed cannot be considered as secondary evidence. Para-25 of the said judgment is reproduced below:
"25. The High Court said, and in our opinion very rightly that Ex.3 could not be regarded as secondary evidence. Section 63 of the Evidence Act mentions five kinds of secondary evidence. Clauses (1),(2) and (3) refer to copies of documents, clause (4) refers to counter parts of documents and clause (5) refers to oral accounts of the contents of documents. Correctness of certified copies referred to in clause (1) is presumed under Section 79, but that of other copies must be proved by proper evidence. A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case Ex.3 is not a certified copy. It is just an ordinary copy. There is also no evidence regarding contents of the original sale deed. Ex.3 cannot, therefore, be considered as secondary evidence. The appellate Court has 9 a right and duty to exclude such evidence. "
83. In the case of Smt.J.Yashoda v. Smt.K.Shobha Rani, reported in AIR 2007 SC 1721, the Apex Court has held in para- 7,8 & 9 as under:
"7. Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the Page 55 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents.
8. Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the Section declares that secondary evidence "means and includes" and then follow the five kinds of secondary evidence.
9. The rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section. In Ashok Dulichand v. Madahavlal Dube and Another [1975(4) SCC 664], it was inter alia held as follows:
"After hearing the learned counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference. According to clause (a) of Section 65 of Indian Evidence Act, Secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in possession or power of the person against whom the document is sought to 10 be proved or of any person out of reach of, or not subject to, the process of the Court of any person legally bound to produce it, and when, after the notice mentioned in Section 66 such person does not Page 56 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT produce it. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of clause (a) of Section 65, the appellant filed applications on July 4, 1973, before respondent No. 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed Photostat copy. Prayer was also made by the appellant that in case respondent no. 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was however, nowhere stated in the affidavit that the original document of which the Photostat copy had been filed by the appellant was in the possession of Respondent No. 1.
There was also no other material on the record to indicate the original document was in the possession of respondent no.1. The appellant further failed to explain as to what were the circumstances under which the Photostat copy was prepared and who was in possession of the original document at the time its photograph was taken. Respondent No. 1 in his affidavit denied being in possession appeared to the High Court to be not above suspicion. In view of all the circumstances, the High Court to be not above suspicion. In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the Photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court."
84 At this stage, I am tempted to put a question to both the courts below whether they have accepted the case of the plaintiff based on mere oral evidence or mere documentary evidence or both?. It is not the case of the courts below that the plaintiff has been able to prove his case only on the basis of the oral evidence in the form of examination-in-chief under Page 57 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT the provisions of Order 18 of the CPC. If the say of the courts below is that on the basis of the documentary evidence adduced by the plaintiff, the reliefs as prayed for have been granted, then it could be said that such reliefs have been granted based on inadmissible evidence.
Different perspective of the aforesaid issue:-
85. I propose to examine the aforesaid issue from a different angle. The Courts below have come to the conclusion that the plaintiff has established his case. It is not possible to say what conclusion, the two courts below would have come to, if they had discarded some of the documents altogether from consideration. As observed by the Supreme Court in Dhirajlal Girdharlal vs. C.I.T.,, Bombay, AIR 1955 SC 271, when a court of fact acts on material, partly relevant and partly irrelevant, it is impossible to say to what extent the mind of the court was affected by the irrelevant material used by it in arriving at its finding and such a finding is vitiated because of the use of inadmissible material and thereby an issue of law arises
86. The practice in the Subordinate Civil Courts is that a document, which is tendered by a party and is admitted in evidence by the court, is marked exhibit number (i) if it is admitted by the opposite party, or (ii) its formal proof has been dispensed with by the opposite party affected by it, or (iii) it is certified copies of public document or otherwise admissible in evidence like the certified copies issued under the Bankers' Books Evidence Act 1891, or (iv) is 30 years old document or Page 58 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT
(v) it has been proved by judicial evidence in accordance with the provisions of Indian Evidence Act. Sometimes the trial court would also put a exhibit number with a note 'objected' by counsel of the plaintiff or defendant (the affected party) or writing note 'subject to objection' or 'subject to objection of the counsel' for the party affected by the document. The exhibit number put on a document signifies its acceptance and admissibility in evidence and also that it has been proved by judicial evidence or otherwise and that it will be read in evidence. Writing of words 'objected' by opposite party or 'subject to objection' by opposite party indicates that the question of admissibility is kept open to be decided later or at the time of hearing of final arguments and the marking of exhibit is only provisional or tentative. In the case on hand, indisputably, the question of admissibility wsa kept open to be decided at the time of hearing of the final arguments.
87. In case a document is marked exhibit without an objection from the party which is affected by that document ordinarily its admissibility cannot be questioned at a later stage of the proceedings in the suit. But in cases where such document is marked exhibit without due application of mind in violation of the provisions of a statute requiring a particular mode of proof etc., the opposite party may still show during the hearing of final arguments that the document is inadmissible in evidence and should be excluded from consideration because of statutory bar or non-compliance of statutory requirement about the mode of proof or otherwise. For instance a will is required to be proved by examining at least one of the attesting witnesses in accordance with Section 68 of the Evidence Act. A document which is in-admissible for Page 59 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT want of registration or proper stamp is in-admissible in evidence, unless use of it is permissible for collateral purposes or extracts of accounts book without production of books of account and proof that they were kept in ordinary course of business. Mere putting of exhibits number on these documents in the absence of their proof in accordance with law does not make them part of the evidence to be read for deciding the suit. In Sait Tarajee Khimchand and Ors. v. Yelamarti Satyam and Ors., AIR 1971 SC 1865 the Supreme Court has laid down that mere marking of an exhibit does not dispense with the proof of the document. All those document which are not proved in the view of the court by judicial evidence are simply to be marked for the purpose of their identification. Ordinarily this marking is done as A, B, C, OR X, Y, Z and if they are in a bunch then A1 to A5 etc. On the other hand, the documents which have been tendered in evidence and have been admitted in evidence and in view of the court they have been proved by judicial evidence or otherwise and/or admissible in law are marked exhibit number such as Exhibit P1, P2, if they are documents of the plaintiff and Exhibit D1, D2 if they are documents of a defendant. Sometimes they are even given exhibit mark writing the number of witness which proved it like PW1/1 or DW1/1 etc. The distinctive feature of the two marking is that while the marking exhibit on a document is regarded to be its admissibility in evidence and its becoming part of evidence until the court at subsequent stage considered it to have not been proved and legally admitted into evidence in view of some statutory bar etc., a document on which a simple marking is put does not form part of the evidence and it could only be referred to for identifying that document.
Page 60 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT88. It is the duty of the Trial Court, before hearing the arguments, finally to revise the record which is to form the basis of its judgment and to see that it contains all that has been formally admitted in evidence and nothing else.
89. The appellate Courts should examine the records of cases coming before them on appeal with a view to satisfying themselves that the subordinate Courts have complied with the provisions of the law
90. In Baldeo Sahai v. Ram Chander and Ors. AIR (1931) Lahore 546 it was held:
"There are two stages relating to documents. One is the stage when all the documents on which the parties rely are filed by them in Court. The next stage is when the documents are proved and formally tendered in evidence. It is at this later stage that the Court has to decide whether they should be admitted or rejected. If they are admitted and proved then the seal of the Court is put on them giving certain details laid down by law, otherwise the documents are returned to the party who produced them with an endorsement therein to that effect."
91. The Division Bench in the aforesaid case clearly laid emphasis for deciding the question whether document is admitted or rejected when document is tendered in evidence and is sought to be proved by judicial evidence.
92. The aforesaid takes me now to consider the contention raised by Mr Jani as regards ordering a retrial.
Order XLI Rule 23-A CPC Page 61 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT
93. The powers of the Appellate Court to remand a matter for a retiral are contained in Order XLI Rule 23-A of the Code of Civil Procedure, 1908. ("CPC"). It reads as under:
"Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23."
94. Order XLI Rule 23-A was introduced by way of the amending Act No. 104 of 1976 which came into force on 9 th September, 1976. The object behind the introduction of the amendment was to widen the powers of the appellate court to remand the case for a retrial. The use of the words "if a retrial is considered necessary" in Rule 23-A is clearly indicative of the fact that the provision was inserted specifically to enable the Appellate Court to remand cases where a de-novo trial i.e. a re-trial was considered necessary. Earlier there was no express power under the CPC under which the Appellate Court could remand a matter for a retiral in cases where the Trial Court had disposed off the matter otherwise than on a preliminary point. The contrast between the pre-1976 and post-amendment position was elucidated by the Supreme Court in P. Purushottam Reddy v. Pratap Steels Ltd., (2002) 2 SCC 686 as under:
"10. The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion of Rule 23- A in Order 41 of the Code of Civil Procedure by the CPC Amendment Act, 1976, there were only two Page 62 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT provisions contemplating remand by a court of appeal in Order 41 CPC. Rule 23 applies when the trial court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate court notices an omission on the part of the trial court to frame or try any issue or to determine any question of fact which in the opinion of the appellate court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand inasmuch as the subordinate court can try only such issues as are referred to it for trial and having done so, the evidence recorded, together with findings and reasons therefor of the trial court, are required to be returned to the appellate court. However, still it was a settled position of law before the 1976 Amendment that the court, in an appropriate case could exercise its inherent jurisdiction under Section 151 CPC to order a remand if such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of Order 41 CPC. In cases where additional evidence is required to be taken in the event of any one of the clauses of sub-rule (1) of Rule 27 being attracted, such additional evidence, oral or documentary, is allowed to be produced either before the appellate court itself or by directing any court subordinate to the appellate court to receive such evidence and send it to the appellate court. In 1976, Rule 23-A has been inserted in Order 41 which provides for a remand by an appellate court hearing an appeal against a decree if (i) the trial court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate court can exercise the same power of Page 63 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT remand under Rule 23-A as it is under Rule 23. After the amendment, all the cases of wholesale remand are covered by Rules 23 and 23-A. In view of the express provisions of these Rules, the High Court cannot have recourse to its inherent powers to make a remand because, as held in Mahendra Manilal Nanavati v. Sushila Mahendra Nanavati [AIR 1965 SC 364 : 66 Bom LR 681] (AIR at p. 399), it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code. It is only in exceptional cases where the court may now exercise the power of remand dehors Rules 23 and 23-A. To wit, the superior court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by Order 20 Rule 3 or Order 41 Rule 31 CPC and hence it is no judgment in the eye of law, it may set aside the same and send the matter back for rewriting the judgment so as to protect valuable rights of the parties. An appellate court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23-A or Rule 25 CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided."
95. Thus, it is well settled that after the amendment of 1976 and introduction of Rule 23-A, the Appellate Court could order a remand for a retrial only under Order XLI Rule 23-A and not in exercise of the inherent powers of the Court, provided that a finding is reached to the effect that the decree is required to be reversed in Appeal and further that a retiral is necessary. The Madras High Court in Fattammal v. Yessotha Ammal reported in 1979 SCC Online Mad 125: (1980) 93 LW 574 has gone further to hold that after the amendment of 1976 while 'the discretion of the appellate court to order a retiral is Page 64 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT unfettered', it must still be exercised on the basis of sound judicial principles. One of the pre-requisites in an order remanding the matter for a re-trial is that Appellate Court must first come to a conclusion that the judgment and decree passed by the Trial Court is erroneous on facts or on law and therefore liable to be reversed or set aside. The relevant observations are reproduced hereunder:
"4. The power of remand under Or. 41, R 23 and 23-A can be exercised by the appellate Court if it comes to the conclusion that the judgment and decree of the trial Court are erroneous on facts or on law and are therefore liable to be reversed or set aside. After coming to such a conclusion, if the appellate Court is of opinion that the interests of justice require that there should be a fresh trial, it can remand the suit for fresh disposal. The discretion of the appellate Court to order retrial is unfettered. But this discretion is not to be exercised in arbitrary manner, but it should be exercised on sound judicial principles. A remand cannot be ordered to enable a party to fill up the lacuna in the case. But where the party was denied an opportunity of producing all the evidence they desired to produce before the trial Court, then the appellate Court, in exercise of the discretionary powers to further the ends of justice may order remand or retrial of the case. Or. 41, R. 23-Awas introduced in the Code by Amendment Act 104 of 1976 Prior to the enactment of the above amending Act, Courts have held that under Or. 41, R. 2 as order of remand can be passed only on the reversal of the decree disposing of a suit on a preliminary point and in other cases where the judgment of the trial Court is reversed on merits and the case is remanded for retrial to the trial Court, it can be done by the appellate Court only in exercise of its inherent powers under S. 151, C.P.C. Now under Or. 41, R. 13-A the whole case can be remitted to the trial Court where the judgment reversed is not on a preliminary point but one on merits. Thus Or. 41, R. 23-A has Page 65 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT widened the power of the appellate Court to remit the case to the trial Court for retrial. But even the power under Or. 41, R. 23-A can be exercised by the appellate Court only after recording a finding that the judgment and decree of the trial Court are erroneous and are liable to be reversed or set aside."
96. In Ramasamy v. Ramachandran, reported in 2009 SCC Online Mad 481: (2009) 2 LW 944, the Madras High Court upheld an order of remand for a retiral on the touchstone of the principles enunciated in Fattammal (Supra), although the aforesaid decision was not cited before it. The relevant extract is as under:
"4. Coming to the import of the provisions in Rules 23 and 23-A of Order 41 of C.P.C, a clear finding has to be furnished by the Appellate Court for remanding matter. As per the amendment to Rule 23 of Order 41 of C.P.C. by Madras High Court, if the Appellate Court considers it necessary in the interest of justice to remand the case, it can be done and as per Rule 23- A, if the Court considers a re-trial is necessary, the remand could be ordered. Bearing in mind the above said statutory requirements, while the present matter is subjected to scanning, it is to be observed that the Appellate Court has expressed its view unambiguously that there are sufficient grounds for re-trial and the remand could be in the interest of justice.
15. Since this Court reaches a conclusion that the Appellate Court's order of remand could be justified, which has satisfied the requirements envisaged in Rules 23 and 23-A of Order 41, the order challenged need not be disturbed and there is no legal infirmity in the same, it deserves to be confirmed and it is accordingly confirmed."Page 66 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT
97. It is pertinent to note that the scope of remanding the matter by the High Court in a Second Appeal has been circumscribed by the Supreme Court in Syeda Rahimunnisa v. Malan Bi reported in (2016) 10 SCC 315 wherein it was held as under:
"36. It is a settled principle of law that in order to claim remand of the case to the trial court, it is necessary for the appellant to first raise such plea and then make out a case of remand on facts. The power of the appellate court to remand the case to the subordinate court is contained in Order 41 Rules 23, 23-A and 25 CPC. It is, therefore, obligatory upon the appellant to bring the case under any of these provisions before claiming a remand. The appellate court is required to record reasons as to why it has taken recourse to any one out of the three Rules of Order 41 CPC for remanding the case to the trial court. In the absence of any ground taken by the respondents (the appellants before the first appellate court and the High Court) before the first appellate court and the High Court as to why the remand order in these cases is called for and if so under which Rule of Order 41 CPC and further in the absence of any finding, there was no justification on the part of the High Court to remand the case to the trial court. The High Court instead should have decided the appeals on merits. We, however, do not consider it proper to remand the case to the High Court for deciding the appeals on merits and instead examine the merits of the case in these appeals."
98. It was also held in the aforementioned case that;
"Section 100 empowers the High Court to decide the second appeal only on the questions framed. In other words, the jurisdiction of the High Court Page 67 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT to decide the second appeal is confined only to questions framed. When the High Court did not frame any question on the question of remand to the trial court a fortiori it had no jurisdiction to deal with such question much less to answer in the respondent's favour."
99. However, on a plain reading of Order XLII Rule 1 and Order XLI Rule 23-A of the CPC along with the observations of the Supreme Court in Purushottam Reddy (Supra), it can be said that even before the introduction of Rule 23-A, the High Court sitting as an Appellate Court - whether in First Appeal or in Second Appeal, could and often did exercise an inherent power under Section 151, as and when required, to remand a case to the Trial Court for a de-novo trial or a re-trial as the case may be. After the introduction of Rule 23-A in the year 1976, the matter has been placed beyond a pale of doubt that the Appellate Court, including the High Court in a Second Appeal, is empowered by Rule 23-A to order a retiral where it is considered necessary. The observations of the Supreme Court in Syeda Rahimunnisa (Supra) would indicate that a conservative view is taken of the powers of the High Court for remand of a matter to the Trial Court in Second Appeal, which is not borne out from the plain language of Order XLI Rule 23- A. The plain language of Order XLI Rule 23-A does not indicate any of the pre-requisites mentioned in the judgment such as the grounds having been taken in appeal etc. Rule 23-A leaves the matter of remand for a retrial completely at the discretion of the Appellate Court, subject to the usual caveats on the exercise of judicial discretion.
100. In the year 1919, a similar issue came up before the Patna High Court in Sumitra Kuer v. Ram Kair Chaubey Page 68 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT reported in 57 Ind. Cas.561 wherein the Trial Court had excluded a particular document from being admitted in evidence as being not admissible under Section 32 of the Evidence Act, 1872. However, on appeal, the Subordinate Judge attributed much importance to the document, without considering the question as to its admissibility. The Single Judge of the High Court remanded the matter to the Subordinate Judge with a direction that the document be excluded from its consideration. This direction was upheld by the Division Bench in an appeal under the Letters Patent on the ground that;
"in second appeal the Court is not in possession of all the evidence or in a position to be able to weigh it and see whether in fact, apart from the objectionable evidence, there was sufficient evidence to entitle the lower Court to come to the decision which it did. It is impossible for us here to say exactly how far the mind of the Subordinate Judge was influenced by this document. It is obvious that it was a piece of evidence very largely relied upon by the defendant, because we find in the judgment of the Munsif that he states the defendant relies principally upon the hiba deed executed by Musammat Mohra in favour of Kameshwar Chowbey, and one must assume that in the Appellate Court they placed the same reliance upon it and as the learned Subordinate Judge accepted it, it is impossible for us to say in the circumstances that it had not a very considerable influence upon his mind in weighing the evidence and coming to a decision. In these circumstances it seems to me that the judgment of the learned Judge of this Court was perfectly right and that this appeal should be dismissed with costs."
101. On the question of admissibility of the document, the Patna High Court rejected the contention that lack of objection at the initial stage of production of the document would mean that it had been admitted in evidence. It was observed as Page 69 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT under:
"The first thing to be observed is that this document was clearly not admissible in evidence at all, but two points have been urged before us. The first is that it was apparently tendered in evidence without any objection at the time by the other side, and this appears from a list of documents put in at the trial including the document in question, against which there is a note to the effect that it was put in without objection, but this is not merely a case of waiving the necessary formality of proof of a particular document, a formality which the parties may possibly agree to waive, it is a question of whether a particular document is in itself admissible as proof at all, and in such cases the law appears to me to be that the mere omission to object to a document which is not in itself admissible as evidence does not constitute that document evidence so as to he available to either party at the trial, and I think it is only necessary to refer to section 5 of the Evidence Act which lays down a very strict rule as to what evidence may be given and what evidence may not in any suit. That section provides that "Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others." The Explanation to the section says: "This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time feeling in force relating to civil procedure." It is clearly the duty of the Judge, apart altogether from any objection by the parties or their Pleaders, to exclude all irrelevant evidence, and in this case had the learned Munsif performed that duty, he would have entirely excluded this document on the ground that it was not admissible. However, it appears to have been tendered and put in evidence. But when be came to deliver his judgment, be certainly rightly decided that the document was not admissible and, therefore, properly rejected it. As I have already stated, it was not Page 70 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT competent to the parties to make it evidence merely by reason of some omission to object at the time it was put in evidence. Therefore, I think this appeal must fail be far as that point is concerned."
102. In light of the aforesaid, notwithstanding the observations of the Supreme Court in Syeda Rahimunnisa (Supra), in a given case where the High Court in Second Appeal finds that the evidence was wrongly let in by the Trial Court without considering its admissibility, the decree can be said to be a perverse decree having been reached without judicial determination as regards the admissible evidence.
103. I may also refer to a decision of this High Court in the case of Setu Madhavrao vs. Food Corporation of India, reported in AIR 1985 Gujarat 27. I may quote the relevant observations;
"13. Now, 0. 41, R. 23-A of the Code has been inserted by Amendment Act of 1976. it is material for our purposes and it reads:
"Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the appellate Court shall have the same powers as it has under R. 23.- A mere reading of this R. 2-3-A shows that in a case where R. 2-3 or 25 is not "applicable, and when the appellate Court reverses on merits the decree passed by the trial Court, and on reversing the decree, if the appellant. Court finds that remand is necessary, which. may be on various reasons, e.g. supposing evidence which has been recorded is inadmissible in evidence. in the opinion of the appellate Court, or where 'there is change in law and fresh trial becomes necessary or that on account of the decision of the appellate Court some lacuna or contingency arises, which Page 71 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT requires rent and. there may be circumstances where the appellate Court finds that the suit cannot be properly despond of, and in rare Cases the appellate Court can remand the whole suit subject to all just exceptions for trial to the trial Court."
104. This Court (Coram: J. B. Pardiwala, J.) in the case of Mehulbhai (supra) had the occasion to consider the scope to resort to the proviso to Section 100(5) of the CPC. I may quote the relevant observations made therein:-
"12. It will be pertinent to note that the aims and objects make it apparently clear that Section 100 has been made very stringent. By virtue of the amendment introduced in Section100, the High Court's jurisdiction is restricted only to a consideration of a question of law framed. A further right has been conferred on the respondent to show that no such question has arisen in the case. Sub-section (3) of Section 100,C.P.C. requires that in an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal and under Sub-section(4) the High Court, if it is satisfied, that a substantial question of law is involved in the case, shall formulate that question and thereafter the appeal shall be heard on the question of law so formulated. No doubt, the proviso to Sub-section (5) gives power to the Court to hear an appeal on any other substantial question of law not formulated by it, if the High Court is satisfied that such a substantial question is involved. But before doing so, the High Court is required to record reasons for permitting the appellant to argue on such questions which have not been formulated by the Court at the time of admission of the appeal. Proviso to Sub-section (5) of Section 100 is an exception to the general rule and before the proviso could come into operation, it must be established that the questions of law sought to be raised are capable of being raised as substantial question of law. It is only in rare cases,where substantial question of law is patent on the face of the record and grave in justice is likely to be caused because of the Court's failure to formulate such question at the stage of admission, then only this proviso can be resorted to.Page 72 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT
13. I may refer to a very recent pronouncement of the Supreme Court in the case of Mehboob-Ur-Rehman (Dead)Thr. LRS. vs. Ahsanul Ghani, Civil Appeal No.8199 of 2009,decided on 15th February, 2019, wherein the Supreme Court has explained the scope of the proviso to sub-section (5) of Section 100 of the CPC. I may quote the relevant observations "20. As per Section 100 CPC, the appeal would lie to the High Court from the decree passed in appeal by any Court subordinate only if the High Court is satisfied that the case involves a substantial question of law; such question is required to be stated in the Memorandum of Appeal; the High Court is required to formulate the question on being satisfied that the same is involved in the case; the appeal is to be heard on the question so formulated; and at the time of hearing, the respondent could urge that the case does not involve such a question. The proviso to sub-section (5) of Section 100 CPC makes it clear that the Court could hear the appeal on any other substantial question of law not formulated by it, but only after recording the reasons that the case involves such a question. In the case of Surat Singh (Dead) v. SiriBhagwan and Ors.: (2018) 4 SCC 562 this Court has pointed out the contours of the powers of High Court under the proviso to sub-section (5) of Section 100 CPC as under:-
"21......... The proviso to sub-section (5), however, also recognises the power of the High Court to hear the appeal on any other substantial question of law which was not initially framed by the High Court under sub- section (4). However, this power can be exercised by the High Court only after assigning the reasons for framing such additional question of law at the time of hearing of the appeal"
21.We are clearly of the view that the proviso to sub- section (5) of Section 100 CPC is not intended to annul the other requirements of Section 100 and it cannot be laid down as a matter of rule that irrespective of the question/s formulated, hearing of the second appeal is open for any other substantial question of law, even if not formulated earlier. The said proviso, by its very nature,could come into operation only in exceptional Page 73 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT cases and for strong and convincing reasons, to be specifically recorded by the High Court. There being no such strong and convincing reason in the present case to formulate and hear the second appeal on any other question of law,the High Court cannot be faulted in rejecting the contentions urged on behalf of the plaintiff- appellant in this regard."
14. Thus, under the proviso to sub-section (5) of Section 100,additional substantial question of law can well be permitted to be raised with the leave of the Court and along with the initial question framed can partake and formulate the subject matter of the debate in such appeal. This proviso is indicative of the legislative intention in this regard. It confers enabling power upon the Court and consequent entitlement in favour of the party. The restrictive scheme of Section 100 couched in mandatory terms firstly cast a duty on the Court not to admit the appeals which do not invoke substantial questions of law,for, such an appeal is not provided for, and secondly, it requires the admission order to speak about and spell out such substantial question and thirdly on that question the notice has to be issued to the respondents, who are enabled to show that such a question is neither a substantial question of law, nor arises in a given appeal, but further at that stage wish the leave of the Court the appellant is further enabled to rely on any other substantial question of law which can form the part of the debate at the final hearing stage. While working out this compact scheme, however, occasions like the present one may arise, wherein, at times, inadvertently, a particular substantial question of law although formulated in the memorandum of the second appeal, yet, may not be found to be framed by the Court while admitting the second appeal. In the case on hand,if I do not exercise my power under proviso to sub-section (5)of section 100, then the same will lead to gross miscarriage of justice because, as noted above, even if I hold that Section 487of the Act, 1949 has no application to the case on hand at this stage, the plaintiffs would not succeed because the plaint would still remain rejected on the erroneous ground of non- compliance of the provisions of Order 1 Rule 8 CPC. As I have heard both the sides at length on the issue of Order 1 Rule 8CPC, no prejudice would be caused if the Page 74 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT substantial question of law as regards Order 1 Rule 8 CPC is framed at this stage. The principle that applies to the omissions, errors or mistake on the part of the Court should always be available in such an eventuality provided the course of justice is not prejudiced or affected to opponent's disadvantage. Once the litigant has diligently followed the procedural law, he cannot be punished for the omission of the Court. To act ex debito justitiae is the basic rule in matters of administration of justice and,particularly, when if arises out of the procedural laws. Failure on the part of the Court, therefore, though serious does not affect the process of appeal, which is set for final hearing, nor can the appeal be dismissed for that reason.
15. It is not in dispute that in the memorandum of the second appeal, the substantial question of law as regards the applicability of the provisions of Order 1 Rule 8 CPC has been formulated. It is also not in dispute that the plaint came to be rejected by the Trial Court only on one ground, i.e, Order 1 Rule 8 CPC. It is also not in dispute that the Lower Appellate Court did consider in details the issue with regard to Order 1 Rule 8 of the CPC.
16. I am of the view that where the substantial question of law is patent on the face of the record and grave in justice is likely to result because of courts failure to formulate the point at the stage of admission, the resort to the proviso to section100(5) of the CPC should be made. It is true that the proviso to section 100(5) of the CPC is an exception to the main provision of section 100. The Court has a discretion to hear the appeal on any substantial question of law but the legislature has placed an exception to keep the hearing confined to the question formulated by it at the hearing of the appeal. The proviso to section (5) of section 100 could be said to have been kept as the repository of judicial discretion for reasons to be recorded, the power although not unbridled yet enough to impress all such questions which deserves consideration to sub-serve the ends of justice.. I am convinced up to the brim that the plaint could not have been rejected on the ground of prior permission of the court not being obtained under Order 1 Rule 8 of the CPC. I shall assign the reasons in this regard little later. However, if I don't frame this particular question of law in exercise of my powers under the proviso to clause (5) of Page 75 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT section 100 of the CPC, then the same will lead to a serious miscarriage of justice. In such circumstances, the objection raised by Mr. Bhatt, the learned counsel appearing for the defendant No.1 in this regard is rejected.
17. The Supreme Court in the case of Kshitish Chandra Pukair vs. Santosh Kumar Pukair & Ors., reported in AIR1997 SC 2517, has observed as under:-"
"We would only add that (a) it is the duty cast upon the High Court to formulate the substantial question of law involved in the case even at the initial stage; and (b) that in (exceptional) cases, at a later point of time, when the Court exercised its jurisdiction under the proviso to sub- section (5) of Section 100 C.P.C in formulating the substantial question of law, the opposite party should be put on notice thereon and should be given a fair or proper opportunity to meet the point. Proceeding to hear the appeal without formulating the substantial question of law involved in the appeal is illegal and is an abnegation of abdication of the duty cast on Court and even after the formulation of the substantial question of law, if a fair or proper opportunity is not afforded to the opposite side, it will amount to denial of natural justice. The above parameters within which the High Court has exercise its jurisdiction under Section 100 C.P.C should always be borne in mind. We are sorry to state that the above aspect are seldom borne in mind in may case and second appeals are entertained and/or disposed of without conforming to the above discipline.
The guidelines to determine as to what is a "substantial question of law" within the meaning of Section 100 C.P.C., have been laid down by this Court in a Constitution Bench decision in Sir Chunilal V. Mehta andsons Ltd. Vs. Century Spinning and Manufacturing Co.Ltd., [AIR 1962 SC 1314 = (1962) Supp. (3) SCR 549].There is also a later decision of this Court in Mahindraand Mahindra Ltd Vs. The Union of India and another.(AIR 1979 SC 798). It is unnecessary to deal at length with that aspect any further.
8. In the light of the legal position stated above we are of the view that the High Court acted illegally and in excess of jurisdiction in entertaining the new plea, as it Page 76 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT did, and consequently in allowing the Second Appeal. Even according to the High Court the point urged on behalf of the appellant was only a "legal plea" though no specific plea was taken or no precise issue were framed in that behalf. The High Court failed to bear in mind that it is not every question of law that could be permitted to be raised in second appeal. The parameters within which a new legal plea could be permitted to be raised are specifically stated in sub-section (5) of Section 100 C.P.C. Under the proviso, the Court should be "satisfied" that the case involves a "substantial question of law" and not mere "question of law". The reason for permitted the substantial question of law to be raised, should be"recorded" by the Court. It is implicit there from, that on compliance of the above, the opposite party should be afforded a fair or properly opportunity to meet the same. It is not any legal plea that could be raised at the stage of second appeal. It should be a substantial question of law. The reasons for permitting the plea to be raised should also be recorded. Thereafter, the opposite party should be given a fair or proper opportunity to meet the same. In the present case, as the extracts from the judgment quoted hereinabove would show, the High Court has totally ignored the mandatory provisions of Section 100C.P.C. The High Court proceeded to entertain the new plea and rendered it decision without following the mandatory provision of Section 100 C.P.C."
18. The Supreme Court in the case of Kondiba Dagadu Kadam vs. Savitriben Sopan Gujar, reported in 1999 (3)SCC 722, has observed as under:
"After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of the hearing of the appeal has a right to argue that the case in the court did not involve any substantial question of law. The proviso to the Section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of Page 77 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT ensuring that no injustice is done to the litigant where such question was not formulated at the time of admission either by mistake or by inadvertence. "
105. In view of the aforesaid discussion, I frame the following additional substantial question of law:-
"(A) Whether the gross in the form of a material illegality committed by the two courts below as regards the omission/failure to render any findings on the issue of the admissibility of documents relied upon by the plaintiff after giving tentative exhibits to such documents has vitiated the decree passed by the Trial Court as affirmed by the Lower Appellate Court, warranting a retrial of the civil suit in the interest of justice?"
106. I have already discussed as to why a retrial is warranted in the present case.
107. In the aforesaid context, I may refer to two decisions of the Supreme Court (I) in the case of Remco Industrial Workers House Building Cooperative Society vs. Lakshmeesha M. & Ors., (2003) 11 SCC 666, the Supreme Court observed as under;
"From the above resume of facts and the nature of orders of grants of Occupancy Rights to the contesting parties, we find that the basic issue of the effect of earlier grant dated 28.5.1965 [Ex. D- 3] in favour of the tenant - Muniyappa on the subsequent grant dated 09.12.1969 [Ex. P-1] in favour of plaintiff/respondent was neither addressed to by any of the courts below nor a decision has been rendered on the same. The issue of effect of Ex. D-3 on Ex.P-1 and the identity of Page 78 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT the land under the two grants is vital to the just decision of the case. The powers of the appellate court are not inhibited by the acts or omissions of the parties. Rule 25 of Order 41 of Code of Civil Procedure empowers the appellate court to frame an issue and remit it for trial which has been omitted to be framed and tried by the trial court and which appears to the appellate court essential to the right decision of the case. Rule 23 A Order 41 introduced by CPC Amendment Act No. 104 of 1976 w.e.f. 1.2.1977 confers powers on the appellate court to remand whole suit for retrial. In our considered opinion, this is a fit case where this Court should exercise powers of remand under Order 41 Rule 25 read with Rule 23 A of CPC. "
(II) In the case of Mohan Kumar vs. State of Madhya Pradesh & Ors., (2017) 4 SCC 92, the Supreme Court observed as under;
"Since we are inclined to remand the case by taking recourse to the powers available under Order 41 Rule 23A CPC, it is not considered necessary to examine any other question arising in the case. We are, therefore, of the considered opinion that instead of now remanding the case to the first Appellate Court, it would be just and proper to remand the case to the Trial Court to retry the suit on merits by affording an opportunity to the parties to adduce additional evidence in support of their case. The parties (plaintiff and defendants) are accordingly granted liberty to amend their pleadings and adduce additional evidence. The Trial Court shall then pass a judgment in accordance with law uninfluenced by any of our observations and of the High Court. "
108. As I have reached to the conclusion that I must order a retrial in the interest of justice, I am not going into the other issues like maintainability of the suit or the jurisdiction of the Civil Court to try the suit in view of the provisions of the Jagir Abolition Act and also other issues referred to in the earlier Page 79 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT part of the judgment. I could have observed many things on the other issues also, more particularly, the manner in which those have been dealt with by the courts below. However, as I am remitting the matter for a retrial, I am not expressing any opinion in that regard. I may only observe that the manner in which the First Appellate Court decided the cross-objections filed by the original plaintiffs is something very shocking.
109. In the aforesaid context, I may quote the observations made by the Supreme Court in the case of Union of India vs. Ibrahim Uddin & Ors., Appeal No.1374 of 2008, decided on 17.07.2012. Para 57 reads thus:-
"57. There may be exceptional circumstances where the High Court is compelled to interfere, notwithstanding the limitation imposed by the wording of Section 100 CPC. It may be necessary to do so for the reason that after all the purpose of the establishment of courts of justice is to render justice between the parties, though the High Court is bound to act with circumspection while exercising such jurisdiction. In second appeal the court frames the substantial question of law at the time of admission of the appeal and the Court is required to answer all the said questions unless the appeal is finally decided on one or two of those questions or the court comes to the conclusion that the question(s) framed could not be the substantial question(s) of law. There is no prohibition in law to frame the additional substantial question of law if the need so arises at the time of the final hearing of the appeal. "
110. I may also refer to and rely upon a recent pronouncement of the Supreme Court in the case of S. Subramanian vs. S. Ramaswamy, Civil Appeal Nos.4536-4537 of 2019, decided on 1st May, 2019. Hon'ble Justice M.R. Shah, speaking for the Bench, has observed as under;
Page 80 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT"it is required to be noted that as per catena of decisions of this Court and even as provided under Section 100 of the CPC, the Second Appeal would be maintainable only on substantial question of law. The Second Appeal does not lie on question of facts or of law. The existence of 'a substantial question of law' is a sine qua non for the exercise of the jurisdiction under Section 100 of the CPC. As observed and held by this Court in the case of Kondiba Dagadu Kadam (Supra), in a second appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being:
(i) Contrary to the mandatory provisions of the applicable law;
OR
(ii) Contrary to the law as pronounced by the Apex Court;
OR
(iii) Based on inadmissible evidence or no evidence.
When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in the case of Ishwar Dass Jain (Supra). In the aforesaid decision, this Court has specifically observed and held :
"Under Section 100 CPC, after the 1976 amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. The second situation in which Page 81 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In either of the above situations, a substantial question of law can arise."
111. The request made by Mr. Thakkar, the learned counsel appearing for the plaintiff to frame an additional substantial question of law as regards the maintainability of this appeal only at the instance of the Corporation has no merit worth the name. It cannot be said that the second appeal filed by the Corporation alone is not maintainable in law. In other words, it cannot be said that the Corporation could have preferred the appeal only along with the State of Gujarat. I have already noted that the appellant is a wholly owned Government Company under the provisions of the Companies Act, 1956. The Corporations and the Companies incorporated under the Companies Act have conferred on them a legal entity which is capable to suing or being sued. I see no good reason to exercise my discretion in this regard under the proviso to Clause (5) of Section 100 of the CPC.
112. I may summarize the propositions of law, as discussed above, as under:
(i) Any document filed by either party passes through three stages before it is held proved or disproved.
There are:
First stage: when the documents are filed by either party in the Court; these documents though on file, do Page 82 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT not become part of the judicial record;
Second Stage: When the documents are tendered or produced in evidence by a party and the Court admits the documents in evidence. A document admitted in evidence becomes a part of the judicial record of the case and constitutes evidence;
Third Stage: the documents which are held 'proved not proved or disproved' when the Court is called upon to apply its judicial mind by reference to Section 3 of the Evidence Act.
(ii) When the Court is called upon to examine the admissibility of a document it concentrates only on the document. When called upon to form a judicial opinion whether a document has been proved, disproved or not proved the Court would look not at the document alone or only at the statement of the witness standing in the box; it would take into consideration the broad probabilities of the case as emerging from the whole record.
(iii) The marking of a document as an exhibit, be it in any manner whatsoever either by use of alphabets or by use of numbers, is only for the purpose of identification. While reading the record the parties and the Court should be able to know which was the document before the witness when it was deposing The endorsement of an exhibit number on a document has no relation with its proof. Neither the marking of an exhibit number can be postponed till the document has Page 83 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT been held proved; nor the document can be held to have been proved merely because it has been marked as an exhibit.
(iv) Mere admission of document in evidence does not amount to its proof. Therefore, it is the obligation of the Court to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. In other words, the judicial determination as regards the admissibility of the documentary evidence is mandatory.
(v) The objections as to the 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 mod of proof alleging the same to be irregular or insufficient. In the first case, merely because the 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 later 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.Page 84 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT
(vi) The provisions of Section 65 of the Evidence Act, 1872 provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations in a case where the original documents are not produced at any time, nor any factual foundation has been laid for giving secondary evidence, it is not permissible for the Court to allow a party to adduce secondary evidence. Thus, the secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof.
Therefore, the documentary evidence is required to be proved in accordance with law. The Court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon or before placing reliance upon the same.
(vii) The High Court can interfere with the findings of fact even in the second appeal provided the findings recorded by the Court below are found to be perverse, i.e, not being based on the evidence or contrary to the evidence on record or reasoning is based on surmises and misreading of the evidence on record orb where the core issue is not decided. There is no absolute bar on Page 85 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022 C/SA/223/2015 CAV JUDGMENT the re-appreciation of evidence in those proceedings, however, such a course is permissible in exceptional circumstances.
113. In the result, this second appeal succeeds and is hereby allowed. The judgment and decree passed by the Trial Court in the Civil Suit No.142 of 2006 (Old No.445 of 2003) and the judgment and order passed by the Addl. District Judge, Narmada at Rajpipla in the Regular Civil Appeal No.20 of 2010 are hereby quashed and set aside. The whole civil suit is remitted to the Trial Court for deciding all the issues afresh and after giving additional opportunities to both the parties to lead additional evidence on the issues involved. The parties (plaintiff and defendants) are accordingly granted liberty to amend their pleadings and adduce additional evidence. The parties shall appear before the concerned Trial Court on 08.02.2021 to enable the Court to conclude the proceedings within six months from the date of appearance of the parties.
114. The Registry is directed to transmit the record and proceedings to the Trial Court at the earliest.
(J. B. PARDIWALA, J) Vahid Page 86 of 86 Downloaded on : Tue Jan 11 23:51:50 IST 2022