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Showing posts with label EVIDENCE ACT. Show all posts
Showing posts with label EVIDENCE ACT. Show all posts
Monday, July 29, 2013

Evidence Act, 1872-Section 32 Clause (5)-Date of birth-Proof of-Horoscope-Evidentiary value of-Held : Horoscope is a weak piece of evidence to prove age of a person and cannot be relied upon unless its authenticity is proved by cogent evidence-Cannot be given primacy over the school leaving certificate-Service Law. At the time of appointment as Patwari, respondent disclosed his date of birth to be 1.10.34. On a complaint, an enquiry was conducted and it was found that his actual date of birth was 25.11.31. Thereupon, Deputy Commissioner dismissed him from service. He unsuccessfully preferred appeal before Commissioner. Thereafter, Respondent filed suit for declaration that the correct date of birth is the one recorded in service book i.e. 1.10.34 and in support submitted his horoscope. Trial Court dismissed the suit holding that there was no ground to interfere with the orders of Deputy Commissioner. First appellate court allowed the appeal accepting the date of birth as mentioned in the horoscope. High Court dismissed the Second appeal on the ground that no substantial question of law was involved. In appeal to this court, appellant contended that school register and the connected records were produced which showed that the date of birth was 25.11.1931. The evidentiary value of these documents was discarded by the first appellate court primarily on the ground that a horoscope was produced according to which the date of birth was 1.10.1934.- Allowing the appeal, the Court HELD : 1. The school records have more probative value than a horoscope. Where no other material is available, the horoscope may be considered but subject to its authenticity being established. These aspects were not considered by the first appellate court and the High Court. The High Court was, therefore, not justified in dismissing the Second Appeal by observing that there was no substantial question of law involved. [764-D-E] 2. Respondent claimed that both school leaving certificate and the horoscope were produced and the date of birth was recorded by relying on the horoscope. It has not been explained as to how varying dates remained and why no steps were taken to get the school records corrected. On enquiry, the school leaving certificate was found to be forged one. There was no effort to reconcile the discrepancy in the so-called horoscope and the school record as taken note of by the Trial Court. The first Appellate Court took a different view without any plausible reason. [762-G-H; 763-B] 3. Horoscope is a very weak piece of material to prove age of a person. In most cases, the maker of it may not be available to prove that it was made immediately after the birth. A heavy onus lies on the person who wants to press it into service to prove its authenticity. In fact, a horoscope to be treated as evidence in terms of Section 32 Clause (5) Evidence Act, 1872, must be proved to have been made by a person having special means of knowledge as regards authenticity of a date, time etc. mentioned therein. No evidence was led by the respondent to prove authenticity of the same. In any event the same was not to be given primacy over the school leaving certificate. It was not shown as to how the entry therein was wrong. The onus was on the respondent to prove that the same was not correct, which was not discharged. [763- E-F, C-D] Ram Narain Vallia v. Monee Bibi, ILR 9 Cal. 613; Mst. Biro v. Atma Ram, AIR (1937) PC 101 and Satish Chandra Mukhopadhya v. Mohendra Lal Pathak, ILR 97 Cal. 849, relied on. 4. The statement contained in the admission register of the school as to the age of an individual on information supplied to the school authorities by the father, guardian or a close relative, is more authentic evidence under Section 32 Clause (5) unless it is established that it is inherently improbable. The time of one's birth relates to the commencement of one's relationship by blood and a statement therefore of one' age made by a person having special means of knowledge, relates to the existence of such relationship as that referred to in Section 32 Clause (5). Oral evidence may have utility if no documentary evidence is forthcoming. Even the horoscope cannot be reliable because it can be prepared at any time to suit the need of a particular situation. Entires in the school register and admission form regarding date of birth constitute good proof of age. [763-G-H, 764-A, B-C] Uttam Chandra v. State of Rajasthan, [1982] 2 SCC 202, relied on. Atul Nanda, A.A.G. for the State of Punjab, Arun K. Sinha for the Appellant. Nidhesh Gupta, Vinod Shukla and Ms.S. Janani, for the Respondent.- 2005 AIR 1868, 2005(2 )SCR758 , 2005(3 )SCC702 , 2005(3 )SCALE173 , 2005(3 )JT220

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CASE NO.: Appeal (civil)  1730 of 2005 PETITIONER: State of Punjab RESPONDENT: Mohinder Singh DATE OF JUDGMENT: 14/03/20...
Monday, December 19, 2011

Code of Civil Procedure, 1908 - Order XVI, Rules 1 and 2 r/w s.151 - Partition suit - Defendants filed application for permission to file a list of witnesses, which included the name of the plaintiff's Advocate - Trial Court granted the defendants the leave to file the list of witnesses but rejected their prayer for permission to cite the plaintiff's advocate as a witness on ground that no reason therefor was assigned in the application - Justification of - Held: Justified - If the parties to the litigation are allowed to file list of witnesses without indicating the purpose for summoning the particular person(s) as witness(es), the unscrupulous litigants may create a situation where the cases may be prolonged for years together - Such litigants may include the name of the advocate representing the other side as a witness and if the Court casually accepts the list of witnesses, the other side will be deprived of the services of the advocate - Therefore, it would be a prudent exercise of discretion by the Court to insist that the party filing the list of witnesses should briefly indicate the purpose of summoning the particular person as a witness - In the instant case, the concerned advocate was engaged by the plaintiffs almost 11 years prior to the filing of application by the defendants - During this long interregnum, the defendants never objected to the appearance of the plaintiff's advocate by pointing out that he was interested in the subject matter of the suit - The prayer made by the defendants for being allowed to cite the plaintiff's advocate as a witness was not only misconceived but also mischievous ex-facie with an oblique motive of boarding him out of the case. Constitution of India, 1950 - Articles 226 and 227 - Interlocutory order passed by Subordinate Court - Challenge to - Exercise of powers under Arts. 226 and 227 - Scope - Held: In the instant case, the High Court totally ignored the principles and parameters laid down by this Court for exercise of power u/Articles 226 and 227 of the Constitution qua an interlocutory order passed by the Subordinate Court and set aside the order of the trial Court without assigning any tangible reason. Advocates - Relationship between lawyer and his client - Duty imposed upon an Advocate - Discussed - Held: An Advocate cannot ordinarily withdraw from engagement without sufficient cause and without giving reasonable and sufficient notice to the client - If an Advocate has reason to believe that he will be a witness in the case, he should not accept a brief or appear in the case - Principles of `uberrima fides' - Bar Council of India Rules, 1975 - Rules 12, 13, 14 and 15 of Section II, Chapter II of Part IV. Appellant Nos.1 to 3 and one other person filed suit for partition and separate possession of 1/6th share each in the suit property and also for grant of a declaration that sale deed dated 10.7.1997 executed by appellant Nos.4 to 6 was not binding on them. Respondent Nos.1 and 2 filed written statement, and subsequently, also filed an application under Order XVI Rule 1(1) and (2) read with Section 151 C.P.C. supported by an affidavit of respondent No.1 for permission to file the list of witnesses, which included the name of `NRK', the Advocate who had been representing the appellants in the suit from the very beginning. The trial Court partly allowed the application of respondent Nos.1 and 2 and granted them leave to file the list of witnesses but rejected their prayer for permission to cite `NRK' as a witness on ground that no reason therefor was assigned in the application. The respondents challenged the order of the trial Court by filing a petition under Articles 226 and 227 of the Constitution insofar as their prayer for citing `NRK' as a witness was rejected. The High Court allowed the petition and set aside the order of the trial Court holding that reasons were not required to be assigned to justify the summoning of a particular person as a witness. In the instant appeal, the questions arising for consideration were: 1) whether the High Court committed serious error by interfering with the order of the trial Court without recording a finding that the said order was vitiated due to want of jurisdiction or any patent legal infirmity in exercise of jurisdiction; and 2) whether a litigant filing the list of witnesses is bound to indicate, howsoever briefly, the relevance of the witness to the subject matter of the suit etc., and, in any case, one party to the proceedings cannot cite the advocate representing the other side as a witness and thereby deprive the latter of the services of the advocate without disclosing as to how his testimony is relevant to the issues arising in the case. =Allowing the appeal, the Court HELD:1. The High Court totally ignored the principles and parameters laid down by this Court for exercise of power under Articles 226 and 227 of the Constitution qua an interlocutory order passed by the Subordinate Court and set aside the order of the trial Court without assigning any tangible reason. [Para 10] [427-H; 428-A-B] Surya Dev Rai v. Ram Chander Rai and others (2003) 6 SCC 675 and Shalini Shyam Shetty v. Rajendra Shankar Patil (2010) 8 SCC 329 - relied on. 2.1. The relationship between a lawyer and his client is solely founded on trust and confidence. A lawyer cannot pass on the confidential information to anyone else. This is so because he is a fiduciary of his client, who reposes trust and confidence in the lawyer. Therefore, he has a duty to fulfill all his obligations towards his client with care and act in good faith. Since the client entrusts the whole obligation of handling legal proceedings to an advocate, he has to act according to the principles of uberrima fides, i.e., the utmost good faith, integrity, fairness and loyalty. [Para 12] [428-F-G] 2.2. The duties of an advocate to the Court, the client, opponent and colleagues are enumerated in Chapter II of Part IV of the Bar Council of India Rules, 1975. Rules 12, 13, 14 and 15 of Section II, Chapter II of Part IV of the Rules, regulate the duty of an advocate to the client. An analysis of the above Rules show that one of the most important duty imposed upon an advocate is to uphold the interest of the client fearlessly by all fair and honourable means. An advocate cannot ordinarily withdraw from engagement without sufficient cause and without giving reasonable and sufficient notice to the client. If he has reason to believe that he will be a witness in the case, the advocate should not accept a brief or appear in the case. [Paras 13, 14] [428-H; 429-A-B; H; 430-A] 2.3. If the prayer made by the respondents for being allowed to cite `NRK' as a witness is critically scrutinized in the backdrop of the duties of an advocate towards his client, it is clear that the same was not only misconceived but was mischievous ex-facie. Neither in the written statement nor the additional written statement filed by them before the trial Court, the respondents had attributed any role to `NRK' in relation to the subject matter of the suit. The concerned advocate was engaged by the plaintiffs- appellants in 1996 i.e. almost 11 years prior to the filing of application by the respondents under Order XVI Rule 1(1) and (2) read with Section 151 CPC. During this long interregnum, the respondents never objected to the appearance of `NRK' as an advocate of the appellants by pointing out that he was interested in the subject matter of the suit. Notwithstanding this, the respondents cited him as a witness in the list filed along with the application. The sole purpose of doing this was to create a situation in which the advocate would have been forced to withdraw from the case. Luckily for the appellants, the trial Court could see the game plan of the respondents and frustrated their design by partly dismissing the application. The Single Judge of the High Court ignored that the respondents had included the name of `NRK' in the list of witnesses proposed to be summoned by them with an oblique motive of boarding him out of the case and passed the impugned order by recording one line observation that the respondents were not required to give reasons for summoning the particular person as a witness. [Para 15] [430-G-H; 431- A-D] 2.4. If the parties to the litigation are allowed to file list of witnesses without indicating the purpose for summoning the particular person(s) as witness(es), the unscrupulous litigants may create a situation where the cases may be prolonged for years together. Such litigants may include the name of the advocate representing the other side as a witness and if the Court casually accepts the list of witnesses, the other side will be deprived of the services of the advocate. Therefore, it would be a prudent exercise of discretion by the Court to insist that the party filing the list of witnesses should briefly indicate the purpose of summoning the particular person as a witness. The impugned order of the High Court is set aside and the one passed by the trial Court is restored. The respondents shall pay cost of Rs.50,000/- to the appellants. [Para 16] [431-E-H] Mange Ram v. Brij Mohan (1983) 4 SCC 36 and V. C. Rangadurai v. D. Gopalan (1979) 1 SCC 308 - relied on. Case Law Reference: (2010) 8 SCC 329 relied on Para 6, 9 (1983) 4 SCC 36 relied on Para 6, 11 (2003) 6 SCC 675 relied on Para 7, 8 (1979) 1 SCC 308 relied on Para 14 CIVIL APPELLLATE JURISDICTION : Civil Appeal No. 2015 of 2011. From the Judgment & Order dated 24.2.2010 of the High Court of Karnataka at Bangalore in W.P. No. 2610 of 2007 (GM-CPC). Krian Suri for the Appellants. S.N. Bhat for the Respondents.

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1 REPORTABLE IN THE SU...
Monday, November 29, 2010

RECORDING OF VOICE - PERMISSIBLE

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THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU                 CRIMINAL REVISION CASE NO.1219 OF 2010         27-07-2010  Y. Rang...
Wednesday, October 27, 2010

CAN A HEAD CONSTABLE RECORD DYING DECLARATION?

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SEC. 32 OF EVIDENCE ACT M DYING DECLARATION WAS RECORDED BY HEAD CONSTABLE. DECEASED WAS FIT TO MAKE A STATEMENT - THE STATEMENT WAS READ OV...