Calcutta High Court (Appellete Side)
Kotulpur Farmers' Service ... vs Sayera Bibi And Others on 4 September, 2019
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
In the High Court at Calcutta
Civil Revisional Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
C.O. No. 2515 of 2019
Kotulpur Farmers' Service Co‐operative Society Ltd.
Vs.
Sayera Bibi and others
For the petitioner : Mr. Satrajit Sinha Roy
For the opposite parties : Mr. Prantick Ghosh,
Mr. Siddhartha Sarkar
Hearing concluded on : 06.08.2019
Judgment on : 04.09.2019
Sabyasachi Bhattacharyya, J.:‐
1.The present application under Article 227 of the Constitution of India arises at the instance of the plaintiff in a suit for declaration and injunction pertaining to the possessory right of the plaintiff and further declaration that an impugned deed of sale bearing no. 669 of 2005, dated April 28, 2005 was void ab initio and not binding on the plaintiff.
2. By virtue of the present application under Article 227 of the Constitution of India, the plaintiff/petitioner has challenged the refusal of several applications filed by the petitioner.
3. By the first impugned order, being Order No.26 dated February 27, 2019, a notice was marked as exhibit 'A' and plot information was marked as exhibit 'B', both at the instance of the defendants, despite the petitioner having objected to the marking of the exhibit 'B'. By the same order, another document was marked as Exhibit 'C' and some marked for identification, which are not challenged by the plaintiff.
4. The second impugned order is Order No. 29 dated April 5, 2019 whereby the following three applications of the plaintiff were rejected:
(i) An application under Order XVI Rules 1(2) and 6 of the Code of Civil Procedure, to summon the Revenue Officer (BL & LRO, Kotulpur) to produce an application in the name of the defendant no. 2 in respect of the relevant plot, on the ground that the issuance of summons by the said Revenue Officer was not appearing from the exhibit 'A'. This application was based on the averment of the plaintiff that the said document (exhibit 'A') was not genuine;
(ii) An application of the plaintiff under Order XIII Rule 3 of the Code to de‐exhibit exhibits 'A' and 'B' and return those documents;
(iii) An application under Order XVI Rule 7 of the Code seeking a direction on the defendant no.1 to produce the impugned sale deed to show how it was presented before the District Sub‐Registrar, Bankura and how it was executed, on the ground that the said deed was defective.
5. The next impugned order, being Order No. 36 dated July 11, 2019, was passed by the trial Judge, rejecting the plaintiff's application under Section 151 of the Code to recall Order no. 29 dated April 5, 2019, whereby the defendant no. 18 was discharged as a witness, and prayed for fixation of a date for cross‐examination of the defendant no. 18, on the ground that the said defendant was not merely summoned to produce a document as envisaged under Section 139 of the Evidence Act but was also a party‐witness.
6. By the first 'later' portion of the order dated July 11, 2019, the court below rejected the plaintiff's other application under Section 151 of the Code of Civil Procedure, to recall the order dated April 5, 2019 to the extent of marking the documents being exhibits 'A' and 'B', on the ground that the plaintiff had subsequently obtained information under the Right to Information Act that those documents were not in existence at all.
7. By the second 'later' portion of the same order, another application of the plaintiff under Section 151 of the Code, to produce certain documents as evidence, on the ground that those could not be produced previously even after due diligence was exercised by the plaintiff, was rejected. The documents sought to be produced were as follows:
(i) Certified copy of a notice dated February 7, 2019;
(ii) Received copy of an application under the RTI Act before the
BL&LRO, dated April 25, 2019;
(iii) Certified copy of the records of rights pertaining to the impugned deed of sale;
(iv) Certified copy of the notice of Case No. 468 of 1985;
(v) The order passed in Miscellaneous Case No. 325 of 2010.
8. It was the case of the plaintiff that the originals of the documents had been misplaced and could not be produced at the time of the plaintiff's evidence.
9. Learned counsel for the petitioner argues that exhibits 'A' and 'B' were not public documents and as such, could not be marked as exhibit upon dispensation of formal proof, more so in view of such objection taken by the petitioner in the court below. By placing reliance on Section 35 of the Indian Evidence Act, 1872 (hereinafter referred to as "the 1872 Act"), it is submitted that an entry in any public or other official book, register or record or an electronic record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record or an electronic record is kept, is itself a relevant fact. Such criteria were not met, according to the petitioner, in the case of the exhibits‐in‐question.
10. It is further argued that the cross‐examination of the defendant's witness (D.W. No.2) shows that the documents marked as exhibits 'A' and 'B' did not exist at all. The information extracted by the plaintiff under the Right to Information Act also suggests that the documents could not have been available with the defendants, since those were not existent at all.
11. It is further argued by the petitioner that the plot information marked as exhibit 'B', did not satisfy the conditions stipulated under Section 65B of the 1872 Act, compliance of which was a pre‐requisite of marking such a document as exhibit. As such, the said document had to be formally proved in consonance with Section 65B of the said Act, which was not done in the present case.
12. It is thus submitted that both the said exhibits ought to have been de‐exhibited, as prayed for by the petitioner. In this context, learned counsel for the petitioner cites a judgment reported at (1983) 3 SCC 118 [State of Bihar vs. Radha Krishna Singh and others]. With particular reference to paragraph no. 35 thereof, it is argued that the said judgment laid down when the question of admissibility could be raised in respect of a public document.
13. Learned counsel also cites a judgment reported at AIR 1943 Privy Council 597 [Gopal Das and another vs. Sri Thakurji and others] on the law regarding Order XIII Rules 3 and 4 of the Code of Civil Procedure, in support of his contentions.
14. Learned counsel for the petitioner argues that extracts of the records‐of‐rights ought to have been permitted to be produced by calling for the Revenue Officer, since such production was necessary to examine the authenticity of exhibits 'A' and 'B', which question was categorically raised by the petitioner in the court below.
15. Learned counsel for the petitioner argues that the presumption of the trial court, that the petitioner did not object to the said exhibits, was incorrect, as is evident, according to him, from Order No. 26 dated February 27, 2019, itself.
16. Learned counsel for the petitioner cites a judgment reported at (2011) 11 SCC 275 [K.K. Velusamy vs. N. Palanisamy] for the proposition that, despite the deletion of Order XVIII Rule 17A from the Code of Civil Procedure, recall of a witness could be granted for proving a document.
17. Learned counsel for the petitioner, however, does not press his challenge against the refusal of the application of the petitioner under Order XVI Rule 7 of the Code of Civil Procedure.
18. Learned counsel for the petitioner argues that the defendant no. 18 ought to have been permitted to be cross‐examined, since he was not merely summoned to prove a document, as held by the trial court, but was also a party‐witness.
19. It is further submitted on behalf of the petitioner that the plot information, marked as exhibit 'B', was not a private document kept in public records and, as such, the trial court erroneously applied the principles embodied in Section 74(2) of the 1872 Act to the said document.
20. Learned counsel for the defendants/opposite parties, on the other hand, argues that no objection was taken by the plaintiff/petitioner at the time of marking exhibit 'A' at all, which is reflected from the first impugned Order No. 26 dated February 27, 2019. Objection was only taken to the marking of exhibit 'B', that too, on the sole ground that the issuing authority was not a public servant. A new objection, as taken by the petitioner for the first time in the present application under Article 227 of the Constitution, could not be permitted to be urged.
21. Learned counsel for the opposite parties next submits that the question of Order XIII Rule 3 arises only when there is a question of admissibility of a document and is restricted to situations such as insufficiency of stamp, non‐registration etc. In this context, learned counsel for the opposite parties cites a judgment reported at (2003) 8 SCC 752 [R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P. Temple & Anr.].
22. It is argued on behalf of the opposite parties that the other applications were dependent on Order No. 26 dated February 27, 2019 and were, as such, rightly rejected in view of such order.
23. Learned counsel for the opposite parties cites Section 167 of the 1872 Act to contend that improper admission or rejection of evidence was not a ground by itself for a new trial or reversal of a decision, if it appears to the court that sufficient evidence was otherwise available. As such, it would be premature for the court to de‐exhibit the documents‐in‐question and/or to question the admissibility of the said documents.
24. Learned counsel for the opposite parties then places reliance on Section 139 of the 1872 Act for the proposition that a person summoned to produce a document (in the present case, defendant no. 18) would not be a witness and could not be cross‐examined until she/he was called as a witness.
25. It is further argued on behalf of the opposite parties that the prayer made by the plaintiff/petitioner in the application under Order XVI Rules 1(2) and 6 show that the defendant no. 18 was called for production of a document only and not as a party‐witness.
26. It is submitted on behalf of the opposite parties that the documents not permitted to be produced vide Order No. 36 dated July 11, 2019 were rightly refused. The documents (ii) and (iii), as mentioned in such application under Section 151 of the Code of Civil Procedure, were beyond the pleadings and produced at a belated stage. It is further submitted that document (iv) was dealt with at page‐ 132, relief (e) in the plaint and as such was already within the knowledge of the plaintiff. The document (v) finds mention in paragraph no. 4 of the plaint and the document (vi) in paragraph 14 of the plaint. As such, it is evident that the petitioner mentioned all the said documents in the plaint itself and as such had knowledge regarding those from the inception of the suit. Thus, it is argued, the petition for production of such documents was extremely belated and designed only to protract the litigation.
27. It is further submitted that an application filed by the petitioner for recall of the P.W. 1 was rejected by this court on the ground that the same was intended to fill up lacunae. The said order operates as res judicata to debar the filing of the current applications, as per the submission of the opposite parties, since the present applications intended to achieve indirectly, what the petitioner could not achieve directly, that is, to fill up the petitioner's lacunae.
28. In reply, learned counsel for the petitioner argues that no new ground of objection was taken for the first time in the present revisional application. Order No. 26, it is sought to be shown, reflects that the objection of the petitioner to the marking of exhibit 'B' was related to the genuineness and admissibility of the document as a whole and not restricted to the mode of proof.
29. The application under Order XVI Rules 1(2) and 6 pertains to a challenge to the authenticity of the said documents and was also relevant.
30. The Revenue Officer was required to be called to prove the original records, in order to establish the petitioner's specific challenge against exhibits 'A' and 'B' and as such, ought to have been allowed by the trial court.
31. The argument of the opposite parties as regards Order No. 26 operating as res judicata for the application under Order XIII Rule 3 of the Code of Civil Procedure, according to the petitioner, is not tenable, since the said application was different in scope from the matters dealt with in Order No. 26.
32. It is further argued that the documents sought to be produced by the petitioner were subsequent ones and could not be found previously, preventing the petitioner from producing those at an earlier stage.
33. Learned counsel for the petitioner seeks to interpret the ratio of the judgment reported at (2003) 8 SCC 752 to the effect that admissibility was to be taken at the first instance and only then could be agitated at a subsequent stage.
34. The judgments, cited by the opposite party in this respect, are as follows:
(i) (2013) 14 SCC 1 - M/s Bagai Construction vs. M/s Gupta Building Material Store, wherein it was held that if documents in exclusive possession of a party was not produced during the entire trial, those could not be produced at a belated stage.
(ii) (2011) 11 SCC 275 - K.K. Velusamy vs. N. Palanisamy, wherein it was held that the power to recall a witness under Order XVIII Rule 17 of the Code of Civil Procedure should be used sparingly in appropriate cases to enable the court to clarify any issue or doubt it may have in regard to the evidence led by the parties, but not intended to be used to fill up omissions in the evidence of a witness who has already been examined or to enable recall of any witness to place additional material or evidence which could not be produced when the evidence was being recorded. However, production of additional evidence could be permitted under Section 151 of the Code even after deletion of Order XVIII Rule 17A upon ensuring that such prayer was not a dilatory tactic.
(iii) (2009) 4 SCC 410 ‐ Vadiraj Naggappa Vernekar vs. Sharadchandra Prabhakar Gogate; It was held therein that some of the principles akin to Order XLVII of the Code may be applied in an application under Oder XVIII Rule 17, but it is ultimately within the court's discretion to allow such an application.
(iv) (2011) 8 SCC 249 - Ramrameshwari Devi & Ors. vs. Nirmala Devi & Ors.; In this judgment, abuse of process of court by adopting dilatory tactics was deprecated.
(v) (2003) 8 SCC 752 - R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P. Temple & Anr.; It was held therein that objections that the document sought to be proved is itself inadmissible can be raised even after the document has been marked as an exhibit or even in appeal or revision, but objections directed not against the admissibility of the document but against the mode of proof thereof on the ground of irregularity or insufficiency an be raised when the evidence is tendered but not after the document has been admitted in evidence and marked as an exhibit.
(vi) (1976) 4 SCC 66 - Y.B. Patil & Ors. vs. Y.L. Patil, for the proposition that questions of fact could not be reopened in revision.
35. Upon considering the submission of both sides, it is evident that no objection to exhibit 'A' being marked was taken by the petitioner at the trial stage and as such, the petitioner ought to be precluded from challenging the mode of proof of the said document. However, there is no bar for the petitioner to challenge the admissibility and evidentiary value of the said document at a later stage, as held in R.V.E. Venkatachala Gounder (supra).
36. The plot information slip issued by the Revenue Officer, marked as exhibit 'B', was not 'a public document', since the same was not prepared by the said officer in discharge of his official duty. The information so provided was only in the nature of secondary evidence at best, subject to satisfaction of Section 65B of the 1872 Act. The petitioner's objection in the court below, as to the Revenue Officer not being a public officer and the document not being a 'document', was comprehensive enough to take within its fold the objection pertaining to the said document not being a 'public' document.
37. It was the official duty of the Revenue Officer under the West Bengal Land Reforms Act to make, revise or correct entries in records of rights. Therefore, extracts of such entries may be public documents, but information issued by the officer is not, as the official duty of the officer is not to issue such information. As such, the plot information could only be secondary evidence, stating about the entries in the records of rights, but could not replace the extracts themselves, taken from the entries in the said records, which are prepared or modified by the Revenue Officer upon following due process of law and on proper inquiry.
38. The approach of the trial court as to applicability of Section 74(2) of the 1872 Act to the plot information, was also erroneous, since plot information was not a public record kept of a private document.
39. Section 76 of the 1872 Act says that the certified copy issued by a public officer, who, by ordinary course of official duty, is authorized to deliver such copies, may be taken into evidence. Section 77 provides that a certified copy may be produced in proof of contents of public documents or parts thereof.
40. Section 79 of the 1872 Act stipulates that the court shall presume the certified copy, which by law is declared to be admissible as evidence of any particular fact and which purports to be duly certified by any duly authorized officer, to come within the purview of the said section. Such document has to be in the format and executed in the manner as directed by law to be marked as an exhibit.
41. A perusal of Section 63(1) shows that the certified copies of such documents, as discussed above, are secondary evidence, to be proved subject to the restrictions stipulated in Section 65 of the 1872 Act.
42. Section 65(e) of the said Act says that when the original is a public document within Section 74, (in the present case, Section 74 (i), being entries in records of rights), the certified copy of such document but no other kind of secondary evidence is permissible. Hence, the marking of the plot information as exhibit 'B', that too without formal proof, was patently erroneous. As such, the marking of the plot information, as permitted by the trial court, ought to be set aside and exhibit 'B' ought to be directed to be re‐exhibited by the defendants upon following due course of law.
43. It is found from the records that the defendant no. 18 was called only to produce a document and not as a witness, as is evident from the connected application of the plaintiff himself. As such, Section 139 of the 1872 Act squarely applies and the defendant no. 18 cannot be treated to be a witness for the purpose of cross‐ examination. Hence, the trial court rightly rejected the prayer of the petitioner for cross‐examination of defendant no. 18.
44. The trial court also correctly rejected the application under Order XIII Rule 3 of the Code of Civil Procedure for de‐exhibiting documents, since the objection as regards exhibit 'A' was never taken in the court below and the challenge as to admissibility thereof can be taken even at a subsequent stage of the suit. However, as regards exhibit 'B', as discussed above, the marking of the said document as an exhibit was erroneous but, for the ends of justice, the trial court ought to grant another opportunity to the defendants to exhibit such document in accordance with law and the portion of the first impugned order marking such document as an exhibit, has to be set aside.
45. As regards the application filed by the petitioner under Order XVI Rules 1, 2 and 5 of the Code, the same ought to have been allowed by the trial court in order to permit the petitioner to prove his independent case regarding the incorrectness and lack of authenticity of the documents marked as exhibits, in view of the specific challenge to such documents taken by the petitioner. It would be unfair to deny the petitioner an opportunity to test the veracity of the documents challenged by the petitioner even by producing independent evidence of his own. If such evidence is shut out merely on the ground of delay, it would prevent the trial court from undertaking a proper and complete adjudication of the disputes involved in the suit. That apart, the delay occasioned was not so great as to be uncondonable, since the arguments had not yet started and the evidence of the D.Ws was going on.
46. As such, C.O. No.2515 of 2019 is partially allowed, thereby modifying the impugned orders to the extent that the marking of the plot information as exhibit 'B' by the trial court is set aside. The defendants shall be given a fresh opportunity by the trial court, within a stipulated time as fixed by the trial court, to re‐exhibit the said document in accordance with law and in a proper manner as sanctioned by law, in the light of the observations made above. The prayer of the petitioner under Order XVI Rules 1(2) and 6 of the Code of Civil Procedure to summon the Revenue Officer (BL & LRO, Kotulpur), to produce the application in the name of defendant no. 2 in respect of the plot‐in‐question is hereby allowed. The plaintiff/petitioner's application under Section 151 to produce certain documents, which was refused by the first 'later' portion of Order No. 36 dated July 11, 2019, is also allowed, thereby permitting the plaintiff/petitioner to tender and prove such documents as prayed for in the said application in accordance with law and in proper manner.
47. However, the rest of the prayers made by the petitioner in the court below stand refused, as rightly observed by the trial court.
48. There will be no order as to costs.
49. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities. ( Sabyasachi Bhattacharyya, J. )