The document sought to be produced is a certified copy of the plan approved by the Mormugao Municipal Council. Section 74 of The Act provides that the documents forming the acts or records of the acts, of official bodies and tribunals, are public documents. Therefore, there can be no doubt that the document (certified copy of the plan) which bears the seal of the Municipality, is a public document in terms of Section 74 of The Act.
IN THE HIGH COURT OF BOMBAY AT GOA
Writ Petition No. 54 of 2011
Decided On: 20.04.2011
Shri Manuel Do Rosario Vs. Shri Nivratti Madhav Naik
Hon'ble Judges/Coram:
A.P. Lavande, J.
A.P. Lavande, J.
1. Heard Mr. Pangam, learned Counsel for the Petitioners and Mr. Mendes, learned Counsel for the Respondent.
2. Rule. By consent heard forthwith.
3. By this petition under Article 227 of the Constitution of India, the Petitioners take exception to order dated 15th January, 2011 passed by Civil Judge, Senior Division, Vasco in dismissing the application dated 15th December, 2010 filed in Regular Civil Suit No. 13/2010/A (New) by the Petitioners seeking leave to produce the certified copy of the plan approved by the Mormugao Municipal Council.
4. The Respondent filed the above suit against the Petitioners / Defendants seeking relief of mandatory and permanent injunction. The Defendants relied upon the approved plan submitted by Mr. Avinash Bhosale-the predecessor-in-title of the Plaintiff which according to the Defendants supported the case set up by them. After the evidence was led by the Plaintiff and the Defendants, the Defendants filed the above application seeking leave to produce the certified copy of the plan approved by the Mormugao Municipal Council and also sought to summon the Chief Officer, Mormugao Municipal Council. The trial Court by the impugned order dismissed the application on two grounds, that is the Defendants could not be allowed to lead secondary evidence without establishing that the plan sought to be produced is copy of the original or that the original was with Mr. Avinash Bhosale and that the Defendants were seeking to produce the document without examining the author of the document.
5. Mr. Pangam, learned Counsel for the Petitioners submitted that both the grounds on which the trial Court has rejected the application, are untenable in law. Mr. Pangam submitted that in terms of Section 74 of the Indian Evidence Act, 1872 ('The Act' for short), the plan approved by the Municipal Council, Mormugao, was a public document. Therefore, the trial Court has erred in holding that the Defendants were seeking to lead secondary evidence without establishing that the said document was a copy of the original. In so far as the second ground is concerned, Mr. Pangam submitted that in terms of Section 77 of The Act, the document sought to be produced being a public document, its contents can be proved by production of the said document. Mr. Pangam submitted that the Petitioners are entitled to produce the said plan in evidence without examining any witness and the Petitioners do not wish to examine any witness to prove the said plan since it is not required in law. In support of his submissions, he relied upon the following judgments:
(i) Tukaram S. Dighole v. Manikarao Shivaji Kokate,MANU/SC/0086/2010 : (2010)4 SCC 329.
(ii) Madamanchi Ramappa and Anr. v. Muthaluru Bojjappa; MANU/SC/0008/1963 : AIR 1963 SC 1633.
(iii) Rajaram Ganapati v. Madhukar Wamanrao Yadav 1981 Mh. L.J. 397.
6. Mr. Mendes, learned Counsel for the Respondent submitted that the document sought to be produced is a private document and as such, the trial Court has rightly dismissed the application on the grounds stated in the impugned order. He further submitted that the Defendants ought to have summoned Shri Avinash Bhosale, who is in possession of the original of the said document and called upon him to produce the said document and, the course adopted by the Defendants, is not available to them in law. According to Mr. Mendes, without examining the author of the document, the Defendants are not entitled to produce the said document and in case the Defendants are allowed to produce the said document, prejudice would be caused to the Plaintiff since the Plaintiff would have no opportunity to rebut the said document.
7. I have considered the rival submissions, perused the record and the judgments relied upon.
8. The document sought to be produced is a certified copy of the plan approved by the Mormugao Municipal Council. Section 74 of The Act provides that the documents forming the acts or records of the acts, of official bodies and tribunals, are public documents. Therefore, there can be no doubt that the document (certified copy of the plan) which bears the seal of the Municipality, is a public document in terms of Section 74 of The Act.
9. Section 77 of The Act provides that the certified copies of the public document may be produced in proof of the contents of such documents. Therefore, both the grounds on which the trial Court has dismissed the application, are untenable in law.
10. In so far as the argument of Mr. Mendes that the Defendants are not entitled to produce the said document without examining the author is concerned, for the reasons already stated above, the argument has no merit. Similarly, the argument that the Plaintiff will have no opportunity to cross-examine the author of the document and, therefore, prejudice would be caused to him is concerned, also has no merit since the Defendants are entitled to produce the said plan in support of their case in terms of Sections 74 and 77 of The Act.
11. The Apex Court in the case of Madamanchi Ramappa (supra), has held that the certified copy of public document is admissible in evidence without being proved by calling a witness.
In the case of Rajaram Ganapati (supra), the learned Single Judge of this Court almost in identical facts has held that the certified copy of the plan sanctioned by Municipality is a public document and its contents can be proved by production of a certified copy.
I do not deem it necessary to refer to in detail the judgment in the case of Tukaram Dighole (supra) relied upon by Mr. Pangam since the facts in the said case are not similar in the present case.
12. In view of the above, I am of the considered opinion that the impugned order passed by the trial Court is patently unsustainable in law. Consequently, the impugned order dated 15th January, 2011 passed by the Civil Judge, Senior Division, Vasco in Regular Civil Suit No. 13/2010/A (New) is quashed and set aside. Consequently, the Petitioners/ Defendants are permitted to produce on record the certified copy of the plan in evidence without examining any witness.
13. Rule is made absolute in aforesaid terms with no order as to costs.
No comments:
Post a Comment