learned Celebrated Judge Sir Ashutosh
Mukherjee observed that the distinction between the admissibility of a
document as evidence of a transaction and admissibility of a document
in proof of a statement contained therein is of a refined but of a
fundamental character though frequently overlooked and for that the
learned Judge has referred to several cases including the case of
Seethapathi Vrs. Venkanna, AIR 1922 Mad 71 (FB) and held that a
plaint may be admissible in proof of the fact that a particular suit was
brought by a particular person against someone on a particular
allegation; but it cannot be admissible to prove the correctness of a
statement contained therein unless it is proved by direct evidence or
by secondary evidence as provided in the Evidence Act.
ORISSA HIGH COURT, CUTTACK
W.P.(Civil) NO. 10286 OF 2007
Smt.Baijayanti Nanda Vs Sri Jagannath Mahaprabhu Marfat Adhikari Mahanta Bansidhar Das Goswami and others .........
PRESENT:-
THE HON’BLE DR. JUSTICE B.R. SARANGI
Date of judgment : 13.03.2014
Citation; AIR 2014 Orissa 128
The plaintiff, being the petitioner, has filed this
petition challenging the order dated 16.8.2007 passed by learned Civil
Judge (Junior Division), Puri in T.S.No. 136 of 1992 under Annexure-3
allowing the petition filed by the defendant-opposite party no.4 with
regard to exhibiting the plaint of C.S.No.80 of 2006 as a public
document under Section 74 of the Evidence Act.
2.
The
short facts of the case, in hand, is that the
petitioner being the plaintiff filed a suit bearing T.S. No. 136 of 1992
before the learned Civil Judge (Junior Division), Puri for declaration of
her right, title and interest and confirmation of possession over the
suit land. The defendants being summoned appeared in the suit.
Besides defendant no.4, Mina Samantaray and defendant no.5,
Santanu Mohapatra, none filed the written statement in the suit. The
written statement filed by the defendant no.5 was not accepted by the
Court. However, defendant no.4 contested the suit by filing her written
statement. On the basis of the pleadings available, issues were framed
and hearing of the suit commenced and witnesses from both the sides
were examined and in course of such hearing documents were also
exhibited.
3.
In the suit itself, defendant-opposite party no.4
herein, was examined as D.W.4. Neither in the written statement nor
during her examination she has stated anything regarding filing or
pendency of C.S. No.80 of 2006 and its relevancy to the present suit.
But after closure of evidence of defendant no.4, she examined one
Upendra Samantaray as D.W.5 in the suit who disclosed regarding
pendency of C.S.No.80 of 2006, in consequence thereof defendant
no.4, filed petitions vide Annexure-1 series for admitting the certified
copy of the plaint in C.S.No.80 of 2006 as evidence facilitating D.W.4
for marking the same as exhibit, granting permission to file certified
copy of the plaint in C.S.No.80 of 2006 and to call for the file of the
said suit.
4.
The plaintiff-petitioner objected vide Annexure-2 to
the petitions filed in Annexure-1 series stating, inter-alia, that the
plaint in C.S.No.80 of 2006 is quite irrelevant to the suit before the
Court and the plaint being not a public document as per the provisions
of Section 74 of the Evidence Act, the same cannot be admitted into
evidence and thus, prayed for dismissal/rejection of the petitions.
5.
Learned
Court
below
after
hearing
the
parties
allowed the petitions vide Annexure-1 series and admitted the plaint
into evidence and marked the same as exhibit vide order dated
16.08.2007 under Annexure-3.
6.
Mr. B. Tripathy, learned counsel for the plaintiff-
petitioner strenuously urged that the order impugned amounts to
arbitrary and illegal exercise of power by the court below as the
plaintiff-petitioner is not a party in C.S. No.80 of 2006, and more so
the plaint of a suit being not a public document cannot be admitted
into evidence and marked as exhibit in the suit without any formal
proof as the subject matter as well as the suit land are altogether
different. He further submitted that the suit in C.S. No.80 of 2006 has
been filed by one Sailabala Pattnaik and Bibhuti Bhusan Pattnaik and
they have not come to the witness box and the plaint filed by them
cannot be exhibited and admitted in to evidence as the plaintiff-
petitioner is not a party to the said suit. That apart defendant no.4,
opposite party no.4 herein, has neither pleaded the said fact in her
written statement nor deposed anything while she was examined as
D.W.4 in the suit. Therefore, she has no competency in any manner to
rely on the plaint filed in the said suit. Therefore, the learned Court
below on wrong interpretation of fact and law arrived at the conclusion
that in order to ascertain a graphic picture of the dispute the Court has
to take the aid of the other reference. In order to substantiate his
contention he has relied upon the judgment in Gulab Chand and Ors.
Vs. Sheo Karan Lall Seth and Ors., AIR 1964 Pat 45 and
Radhashyam Mohanty and Anr. Vs. Narayan Chandra Nath and
Ors. 64(1987) CLT 102.
7.
Mr. P.K. Mishra, learned counsel for the defendant-
opposite party no.4 states that during cross-examination of D.W.5 by
the plaintiff-petitioner it was elicited that another Civil Suit bearing
C.S. No.80 of 2006 is now pending in the same Court i.e. Civil Judge
(Junior Division), Puri and after cross-examination of D.W.5 a petition
has been filed by the defendant-opposite party no.4 in the suit to mark
the certified copy of the plaint in C.S. No.80 of 2006 as exhibit to
which the plaintiff-petitioner has objected and relying upon the
judgment of this Court in L.I.C. Vrs. Narmada Agrawala, A.I.R.
1963, Orissa,103, the learned court allowed the petition with regard to
marking of the plaint as exhibit and therefore, no illegality has been
committed by the Court below by holding that the plaint is a public
document within the meaning of Section 74 of the
support
his
contention
he
has
relied
upon
Evidence Act. In
the
judgment
in
Jagdishchandra Chandulal Shah Vrs. State of Gujurat and
others, 1989 CRI. L. J. 1724.
8.
In view of the aforesaid facts and circumstance now
it is to be considered whether plaint is a public document or not within
the meaning of Section 74 of the Evidence Act.
9.
Public document has been defined under Section 74
of the Evidence Act, which reads as follows:
“74. Public documents- The following documents are
public documents:
(1)
Documents forming the acts or records of the
acts;
(i)
of the sovereign authority,
(ii)
of official bodies and tribunals, and
(iii)
of public officers, legislative, judicial and
executive, of any part of India or of the
Commonwealth, or of a foreign country;
(2)
Public records kept in any State of private
documents.”
10.
This Court while considering Section 74 of the
Evidence Act passed a judgment in W.P.(C) No.16352 of 2006
(Biseswar Dandpat Vrs. Saraswati Dei and others) disposed of on
11.02.2014 analyzing “what constitute a public document”. The
following documents are public documents (1) documents forming the
acts or records of the acts ;
i. of the sovereign authority;
ii. of official bodes and tribunals and;
iii. of public officers, legislative, judicial and executive, of
any part of, or of the commonwealth other part of Her
Majesty‟s dominions, or of a foreign country;
(2) public records kept in any state of private documents.
[Indian Evidence Act (1 of 1872), S. 74].
What
constitute
public
document
has
also
been
considered
in
Manorama Srivastava v. Saroj Srivastava, AIR 1989 All. 17, wherein
the Allahabad High Court held as follows”:
“A public document is such a document contents of which
are of public interest and the statements are made by
authorized and competent agents of the public in the
course of their official duty. Public are interested in such a
document and entitled to see it, so that if there is anything
wrong in it they would be entitled to object. In that sense it
becomes a statement that would be open to the public to
challenge or dispute and therefore, it has a certain amount
of authority. See New India Assurance Company Ltd. v.
Krishna Sharma, AIR 1998 Delhi 386, 388.”
With reference to the question of admissibility of a public document in
evidence, the following observations were made by Lord BLACKBURN :
“There “should be a Public inquiry, a Public Document, and
made by a Public Officer. I do not think that, „Public‟ there,
is to be taken in the sense of meaning of the whole world. I
think an entry in the books of a Manor is „public‟ in the
sense that it concerns all the people interested in the
manor and an entry, probably, in a Corporation book
concerning a matter or something in which all the
corporation is concerned would be „public‟ within that
sense. But must be a „Public Document,‟ and it must be
made by a Public Officer. I understand a „public document.‟
there, to mean, a document that is made for the purpose of
the public making use of it and being able to refer to it. It
is meant to be where there is a judicial, or quasi judicial,
duty to enquire. It should be made for the purpose of being
kept public, so that the persons concerned in it may have
access to it afterwards” (per BLACKBURN J. Sturla v.
Freccia, 50 LJ Ch 96 : 5 App Cas 643, 644.)”
11.
Taking into consideration the above meaning of “public
document” and applying the same in the present context, the Patna
High Court in paragraphs 12 and 13 of the decision in Gulab Chand
and Others (Supra) held as follows:
“12. For the respondent [defendant no.6) it was con-
tended that Ext. E-2, being a certified copy of a plaint, it
would prove, without any further evidence, the contents
of the original plaint including the signatures of the
plaintiffs on that point. In other words, the argument
was that the plaint filed in a Court was a public
document, a certified copy of which could be granted
under Section 76 of the Indian Evidence Act, and when
so granted, it will prove the contents of the original by
the mere filing of it under Section 77.
What are public documents are stated in Section 74
of the Evidence Act: Documents forming the acts or
records of the acts of the sovereign authority, of official
bodies and tribunals, and of public officers, legislative,
judicial and executive, of any part of India or of the
Commonwealth or of a foreign country have been
described as public documents. I cannot see how a plaint
filed by a private person in Court to institute a case
against some others can come within the descriptions of
the documents given in that sub-section. Sub-section (2)
of Section 74 can in no way include a plaint. The plaint is
neither an act nor the record of an act of any public
officer. There can be no strength in the contention that
when the plaint is presented and the Court makes an
order admitting or registering it, the plaint becomes an
act or the record of an act of a public officer presiding
over the Court. At the most, it will become a part of the
record maintained by the Court in that case after the
plaint is admitted and registered, but that itself will not
make it a public document. If it were, then anything filed
in a case in a case in a court of law either petitions or
pleadings, private communications or documents which a
party would file in a case would become public
documents for the simple reason that they are on the
record of a case in Court. The judgment and decree
passed in a case are undoubtedly the acts of the Court,
and they will be public documents on that account.
Similarly, a petition of compromise which is made a part
of the decree forms a part of the public document, but
before its incorporation in the decree, it remains a
private document, though filed in Court, forming a part
of the case record.
13. Learned counsel for the respondent relied upon some
cases to support the view that a plaint or a written
statement filed in a case are public documents. The case
of Mahomed Shababoodeen Vrs. Wedgebarry, 10
Beng LR App. 31, was very much relied upon. No doubt,
in that case a certified copy of the plaint was admitted
on the ground that the plaint was a public document as it
formed a part of the record but a certified copy of a
written statement which was filed in the case was
rejected. If a plaint could be a public document, there is
no reason why the written statement should not come in
that category; but the view taken in that case about the
plaint being a public document and, as such, provable by
the production of a certified copy did not find favour in
any other Court. Authors on evidence like Field and
Woodroffe doubted the correctness of that view also in
their commentaries”.
12.
High
The above finding of the learned single Judge of Patna
Court
is
fortified
in
view
of
the
judgment
reported
in
Tarkeshwar Prasad Vrs. Devendra Prasad, AIR 1926 Patna 180
where plaint was held not to be a public document and certified copy
thereof was rejected from the evidence.
13.
In the case of Akshoy Ku. Bose Vrs. Sukumar Dutta,
AIR 1951 Cal. 320, the written statement filed in a previous suit was
set down as not a public document and its certified copy was not
admissible in evidence without calling for the original. Mere production
of a certified copy in such a case was found to be not sufficient
secondary evidence of its contents without any further evidence.
14.
In case of Usuf Hasan Vrs. Raunaq Ali, AIR 1943
Oudh 54, it was similarly held that the plaint is a private document
and it must be proved by direct evidence and no formal evidence was
given about the plaint. The lower Courts had drawn a presumption
from the certified copy of the plaint about its genuineness but that was
held to be an incorrect approach.
15.
A similar view that a plaint is not a public document and
that it should be proved like any other private document was taken in
the case of Manbodh Vrs. Hirasai, AIR 1926 Nag 339. The learned
Single Judge of Patna High Court made a reference to Lakshan
Chandra Mandal Vrs. Takim Dhali and others, 39 Cal LJ 90 = AIR
1924 Cal 558 where the learned Celebrated Judge Sir Ashutosh
Mukherjee observed that the distinction between the admissibility of a
document as evidence of a transaction and admissibility of a document
in proof of a statement contained therein is of a refined but of a
fundamental character though frequently overlooked and for that the
learned Judge has referred to several cases including the case of
Seethapathi Vrs. Venkanna, AIR 1922 Mad 71 (FB) and held that a
plaint may be admissible in proof of the fact that a particular suit was
brought by a particular person against someone on a particular
allegation; but it cannot be admissible to prove the correctness of a
statement contained therein unless it is proved by direct evidence or
by secondary evidence as provided in the Evidence Act.
16.
In Smt. Shamlata wd/o.Manohar Raut and others
v. Vishweshwara Tukaram Giripunje and another, AIR 2008
Bombay 2008, it is held as follows :
The certified copy of the plaint is not a public
document. Hence, it requires proof. For proving such
document, original plaint suit have been called for in
the Court. That that is not done ,hence the certified
copy of the plaint could not be said to be proved at all.”
17.
The reliance placed by the learned counsel for the
plaintiff-petitioner on the judgment of this Court in Radhashyam
Mohanty and another (Supra) this Court held that the only
pleadings in the suit were that of plaintiffs and defendants and
therefore, evidence is bound to be confined to the said pleadings.
Therefore, evidence should be led to prove or disprove any of the facts
comprised in the pleadings of the plaintiffs or defendants but the
defendant cannot be permitted to lead evidence on a plea, which was
not there before the Court.
18.
In paragraph 12 of the judgment in Jagdishchandra
Chandulal Shah (Supra), the Gujurat High Court has held as follows:
“So far as the document at Sl. No.9 is concerned, it is
the certified copy of the plaint filed against
Mahobatsing Mansingh Jadeja by the complainant and
it is a public document as it forms part of the record,
as held by the High Court in the case of Shazada
Mohomed
Shahaboodeen
Vrs.
Daniel
Wedgeberry reported in (1873) 10 Beng LR
(Appendix) 31 and therefore, that is also admissible in
evidence for the purpose of proving the contents
thereof. However, when the question arises with
regard to the signature thereon, it will be required to
be proved in the same manner in which execution of
the document is to be proved”.
19.
Referring to the aforesaid judgment learned counsel
for the defendant-opposite party no.4 argued that certified copy of a
plaint filed in the Civil Court would be a public document and hence
admissible in evidence for the purpose of proving the contents thereof.
20.
the
In view of the analysis of the judgments cited before
Court
in
the
forgoing
paragraphs,
the
ratio
decided
in
Jagdishchandra Chandulal Shah (Supra), may constitute to be a
per incurium judgment as the earlier judgment available has not been
taken into consideration whereas in Gulab Chand and Others
(Supra) various judgments in the subject has been taken into
consideration and after analyzing Section 74 of Evidence Act, cogent
reason has been assigned that plaint may be admissible in proof of
fact that a particular suit was brought by a particular person against
someone on a particular allegation; but it cannot be admissible to
prove the correctness of a statement contained therein unless it is
proved by direct evidence or by secondary evidence as provided in the
Evidence Act. In the present case, neither there is any whisper in the
written statement filed by the defendant-opposite party no.4 with
regard to pendency of C.S. No.80 of 2006 nor in her evidence as
D.W.4 has she stated anything about the same. The same has been
spoken through evidence adduced by D.W.5, Upendra Samantary who
incidentally disclosed regarding pendency of C.S. No.80 of 2006. The
plaintiff-petitioner is not a party to the said suit and the said suit has
been filed by Sailabala Pattnaik and Bibhuti Pattnaik and none of them
examined as a witness in the present suit. Therefore, any application
filed by them cannot be taken into consideration to exhibit the plaint
as a public document so as to prove the case of defendant-opposite
party no.4. Applying the ratio of the judgment in Radhashyam
Mohanty and another (supra), the pleadings in the suit were that of
plaintiffs and defendants and the evidence therefore, is bound to be
confined to the said pleadings. Hence, evidence should be led to prove
or disprove any of the facts comprised in the pleadings of the plaintiffs
or defendants but they cannot be permitted to lead evidence on a plea
which was not there before the court.
21.
Considering the above facts and circumstances of the
case and the law governing the field, this Court is of the definite
conclusion that the plaint in C.S. No.80 of 2006 is not a public
document within the meaning of Section 74 of the Evidence Act and
therefore, the same cannot be admitted into evidence and marked as
exhibit without proving the contents thereof. In that view of the
matter, the order dated 16.8.2007 passed by the learned Civil Judge
(Junior Division), Puri in T.S.No. 136 of 1992 is hereby set aside and
the writ petition is allowed. No cost.
......................................
Dr. B.R. Sarangi, J.
Orissa High Court, Cuttack
The 13th March, 2014/PKSahoo
No comments:
Post a Comment