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Showing posts with label secondary evidence. Show all posts
Showing posts with label secondary evidence. Show all posts
Tuesday, June 18, 2013

Code of Civil Procedure, 1908: Section 100-Order 13 Rule 4 CPC-Suit for declaration of title, arrears of rent and possession of suit property-Appellant producing photocopies of the order of State Commissioner and rent agreement between appellant and tenant and the books of accounts in support of claiming his title-Trial court and first appellate court holding in favour of the appellant on the basis of oral and documentary evidence-High Court, in second appeal, reversing the concurrent findings on the ground that the documentary evidence are not originals-Validity of-Held, on facts, the High Court has wrongly framed the substantial questions of law on the assumption that the suit property belonged to the temple-The admission in evidence of photocopies cannot be questioned since no objections were raised by respondent at the time of, tendering them into evidence by the appellant-Respondent failed to discharge its onus to prove its title on suit property-Hence, High Court judgment set aside as no substantial question of law arose-Indian Evidence Act, 1872: Sections 34 AND 116. The property of defendant-respondent no. 1 temple was endowed by the forefathers of the plaintiff-appellant. The father of the appellant and thereafter the appellant were trustees of the temple and were managing the temple property. In 1968, the State Charity Commissioner appointed a new set of trustees and a Chief Executive Officer for the temple and removed the appellant from the trusteeship. The suit property, which is situated adjoining to the temple property, was let out on rent to defendant- respondent no. 2 by the appellant. Respondent no. 2 paid rent to the appellant till 1969. Thereafter, at the instance of respondent no. 1, respondent no. 2 issued a rent note in favour of the temple attorning the latter as the landlord of the suit property. Respondent no. 1 claimed the suit property on the basis of being part of the temple property. Appellant filed a suit for declaration of title, arrears of rent for three years immediately preceding the filing of the suit and possession of the suit property before Trial Court. Relying upon the oral and documentary evidences, the trial court decreed the suit in favour of the appellant. This was affirmed by the first appellate court. The High Court, in second appeal, reversed the findings of the courts below holding that no reliance could be placed upon the documentary evidence produced by the appellant before the lower courts. Citation: 2003 AIR 4548,2003(4 )Suppl.SCR450 ,2003(8 )SCC752 ,2003(8 )SCALE474 ,2004(6 )JT442= Allowing the appeal, the Court HELD: 1. A second appeal in the High Court can be entertained only on substantial questions of law and not otherwise. Instead of proceeding to decide the issues arising in the suit, the High Court assumed the second appellate jurisdiction by erroneously' assuming the fact that property belongs to the temple, while framing the substantial questions of law. The question to be determined in the case was whether the appellant or the temple had the title to the suit property. The questions framed by the High Court did not arise as substantial questions of law based on the concurrent findings by the two courts below. The judgment of the High Court deserves to be set aside on this ground. [459-B-D] 2. Section 34 of the Indian Evidence Act, 1872 declares relevant the entries in the books of account regularly kept in the course of business whenever they refer to a matter into which the Court has to enquire. The courts of fact subordinate to the High Court, have not felt the need of any further corroboration before acting upon the entries in the ledger books made by the deceased father of the appellant. So far as the entries made by the appellant are concerned, he has deposed to making the entries and corroborated the same by his own statement. The appellant has been believed by the trial court and the first appellate court and his statement has been found to be enough corroboration of the entries made by him. No question of law arose as would enable the High Court to reverse that finding. The entries amply prove that for a length of time, upto the year 1959, the appellant's deceased father, and then the appellant was collecting the rent of the suit property claiming to be the landlord from respondent no. 2 inducted as tenant by them. They were in possession of the suit property through their tenant, respondent no. 2. The High Court has erred in ruling out the books from consideration on the ground that the same were not duly maintained or were not proved in the absence of the maker having stepped in the witness box. [460-E-H, 461-A, B] 3.1 An objection as to the admissibility of evidence should be taken ordinarily when it is tendered and not subsequently. An objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure, the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. A failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. [463-G, 464-B-F] Padman AND OTHERS v. Hanwanta AND OTHERS , AIR (1915) PC 111 and P.C. Purushottama Reddiar v. S. Perumal, [1992] 2 SCR 646, referred to. The Roman Catholic Mission v. The State of Madras AND ANOTHER , AIR (1966) SC 1457, distinguished. 3.2 The photocopy of the order passed by the Assistant Commissioner and the photocopy of the rent agreement between the appellant and the tenant- respondent were admitted in evidence without any objection by the two courts below. The High Court erred in holding these documents inadmissible being photocopies and the originals of the same were not produced. None of the two courts below appeared to have felt any difficulty in reading the documents and understanding and appreciating its contents. The High Court, if it felt any difficulty in comfortably reading of the photocopies, should have said so at the time of hearing and afforded the parties an opportunity of either producing the originals or a readable copies of the documents. Nothing such was done. The High Court has not even doubted the factum of the contents of the documents having been read by the two courts below, drawn deductions therefrom and based their finding of facts on the documents as well. [465-G-H, 466-A] 3.3 The photocopy of the certified copy of the order passed by the Assistant Commissioner H.R. and C.E. (Admn.) Department in exercise of its jurisdiction under section 63 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 held that the temple is not the owner of the suit property. This has become final. The photocopy of the order was marked as an exhibit without any objection by the temple respondent An order of the Charity Commissioner is not per se the evidence of title inasmuch as the Charity Commissioner is not, under the law, competent to adjudicate upon questions of title relating to immovable property which determination lies within a domain of a civil court. However, still the order has relevance as evidence to show that the property forming subject matter of the order of the Charity Commissioner was claimed by the temple to be its own property. The temple failed in proving its claim. Consequence of this would be that the attornment by the tenant-respondent in favour of the temple during the continuance of tenancy was not valid. The tenant could not attorn to the temple treating the latter to be the owner since he was inducted by the appellant and the estoppel flowing from Section 116 of the Indian Evidence Act, 1872 operated against him. [462-E-F] 3.4 In the property tax register, the appellant and his predecessOTHERS were shown to be the owners of the suit property. An entry in the municipal record is not evidence of title. The entry shows the person who is liable to pay rates and taxes to the municipality. If the property belonged to the temple, the temple would have taken steps for having its own name mutated into the municipal records and paid taxes or claimed exemption from payment of taxes, which was not done. The temple has not been able to produce any evidence, oral or documentary, to prove its title to the suit property. The attornment by the tenant in favour of the temple and payment of rent to the temple after 1969 or the payment of the property tax by the temple to the municipal authorities after 1969 does not establish the title to the temple of the suit property. These documents are not of much evidentiary value as these documents came into existence only after the dispute had arisen between the parties. In the absence of any other lawful claimant, the appellant, on the strength of the documents produced, was rightly held to be the owner by the courts below the High Court. The attornment by the tenant in favour of the temple was also rightly held to be invalid. The appellant would, therefore, be entitled to recover possession of the suit property and the arrears of rent. [466-E-H, 467-A-C] 4.1 In a suit for recovery of possession based on title, it is for the plaintiff to prove his title and satisfy the Court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored with him. There is an essential distinction between burden of proof and onus of proof. Burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In a suit for possession based on title, once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant, it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiffs title. [468-D-F] Raghavamma AND ANOTHER v. Chenchamma ANOTHER , AIR (1964) SC 136, relied on. Bater v. B., [1950] 2 All ER 458 and Hornal v. Neuberger P. Ltd., [1956] 3 All ER 970, referred to. Sarkar on Evidence 15th Edition, referred to. 4.2. The appellant-plaintiff has not been able to produce any deed of title directly lending support to his claim for title of the suit property. The respondent-defendant temple too has no proof of its title. Being a civil case, the plaintiff cannot be expected to prove his title beyond any reasonable doubt. A high degree of probability lending assurance of the availability of title with the plaintiff would be enough to shift the onus on the defendant and if the defendant does not succeed in shifting back, the onus, the plaintiffs burden of proof can safely be deemed to have been discharged. The appellant had succeeded in shifting the onus on the respondent temple and therefore the burden of proof, which lay on the appellant, had stood discharged. The High Court, in exercise of its limited jurisdiction under section 100 CPC, ought not to have entered into the evaluation of evidence afresh. The High Court has interfered with a pure and simple finding of fact based on appreciation of oral and documentary evidence which the High Court ought not to have done. [468-G-H, 469-A, B] 4.3. No question of law much less a substantial question of law arose in the case worth being gone into by the High Court in exercise of its second appellate jurisdiction under Section 100 CPC. The High Court was bound by the findings of fact arrived at by the two courts below and should not have entered into the exercise of re-appreciating and evaluating the evidence'. The findings of fact arrived at by the courts below did not suffer from any perversity. There was no non-reading or mis-reading of the evidence. A high degree of preponderance of probability proving title to the suit property was raised in favour of the appellant and the courts below rightly concluded the burden of proof raised on the plaintiff having been discharged while the onus shifting on the defendant remaining undischarged. [470-C-E] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10585 of 1996.

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http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9 CASE NO.: Appeal (civil) 10585 of 1996 PETITIONER: R.V.E. Venkatachala Gounder ...
Friday, November 23, 2012

secondary evidence - whether the necessary conditions precedent, were complied with, by the party filing that application. The truth, or otherwise, of the respective pleas, need to be taken into account, at a later stage. If the proposed secondary evidence conforms to the tests under Section 63 of the Act, the application needs to be allowed. Once it is shown that the preliminary steps contemplated under Section 66 are complied with, the question as to whether the document so received can be treated as relevant, or is admissible, can certainly be decided at a subsequent stage. Further, the question pertaining to the custody of the original and the efforts made by the concerned party to procure the same, can be the subject-matter of evidence.

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THE HON'BLE MR JUSTICE L.NARASIMHA REDDY         CIVIL REVISION PETITION No.1166 OF 2012         01.11.2012 Sri Koneru Srinivas ...