Objection Not Decided in Final Judgment

A document admitted in evidence during trial under objection that was stated to be
decided at the time of final adjudication; but the same was not decided in the final
judgment by the trial court. What would be the legal effect of such omission
on the part of the trial court?
I. It was incumbent upon the learned trial Court to decide the

authenticity of the said document admitted under objection.
The learned Appellate Court has also blindly relied upon the
same without considering its authenticity and admissibility
in evidence. Therefore, the remand of the case is inevitable. The
learned trial Court was directed to decide case afresh after deciding the
authenticity and admissibility of document in evidence in accordance
with law. 1
II. Since the objections as to the admissibility of documents

remained pending throughout the trial till the decision of the
case. The judgments of the Courts below suffer from patent illegality
and improper exercise of jurisdiction to rely on evidence, the
admissibility of which was not decided in accordance with law. The case
was remanded.2
III. The documents produced by the petitioner were taken on record under
objections to their admissibility. It is clear that while taking those
documents on record, the learned trial Court did not spell out as to
what objections were raised; how those were answered by the
other side; and as to what was decision thereon. It is the duty
of the learned Judge admitting the evidence on record, to
record objection if any, reply thereto and the decision
thereon before it is made part and parcel of the judicial
record.3
IV. Neither the learned trial Court nor the Appellate Court
decided the objection of the petitioner qua the admissibility
1
Haji Peeran Ditta Vs. Shams-ud-Din (2013 C L C 1140) [Lahore]
2
Province of Punjab through Collector, District Gujrat Vs. Muhammad Bashir (1997 MLD 806)
[Lahore]
3
Ibid;
of document. If at this stage, the document is excluded it will create
hardship to the respondent and he will be denied of opportunity to
prove the same. The case was remanded.4
V. The courts below had erred in relying on document without

deciding objections about admissibility. The question of
admissibility of document under objection was not decided at
all by Trial Judge while rendering decision on merits.
Therefore, Courts below had acted illegally in rendering judgment on
basis of document without deciding objections about admissibility. No
fresh evidence is to be recorded. Learned Trial Judge will allow both
the parties to address on the question of admissibility of document and
will thereafter pass a fresh decision in accordance with law. 5
VI. The question of admissibility of the document has to be decided at the

stage when the document is formally tendered in evidence and proved.
Deferring a decision on the question of admissibility of the
document and making it part of the evidence by marking
exhibit mark on it may lead to complication and in many
cases result in grave injustice to the party, who tenders the
document. If the question of admissibility of the document is deferred
to be decided at the time of hearing of final arguments in many cases a
party may be deprived of an opportunity to cure a curable defect or
supply the deficiency.6
VII. The objection to the admissibility and the proof of the document
should ordinarily be not kept pending and this should be
decided promptly as and when they are raised, particularly if raised
during the recording of the evidence of a witness who is called to prove
it.7
VIII. However, mere admission of a document in evidence does not amount

to its proof. Nor, mere marking of exhibit on a document does not
4
Kalsoom Akhtar Vs. Fazal Noor (2000 MLD 1653) [Lahore]
5
Mahesh Kumar Goyal Vs. Birendra Kumar Dosi (MANU/MP/0449/2009)
6
Shail Kumari Vs. Saraswati Devi (MANU/DE/1352/2001)
7
Ibid;
dispense with its proof, which is otherwise required to be done in
accordance with law (AIR 1966 SC 1457, AIR 2000 SC 2629, AIR
2003 SC 4548, AIR 2004 SC 4082, (2010) 4 SCC 491).
The referred judgments (only relevant paragraphs) are annexed herewith for
ready reference: -
2013 C L C 1140
[Lahore]
Before Syed Iftikhar Hussain Shah, J
Haji PEERAN DITTA and others----Petitioners
Versus
SHAMS-UD-DIN and others----Respondents
The age of document, its unsuspicious character, its custody and other circumstances
are foundation to raise a presumption of its execution and if a document is proved
more than 30-years old, it is permissible in evidence without formal proof, but if the
genuineness of such document is disputed, it is the duty of the Court to determine
the question of its genuineness and true character. The Nikahnama Exh.P-2 was
produced in evidence under objection and was disputed by the
petitioners/ defendants but the learned trial Court has not given any
findings about the admissibility of the said documents. Exh.P-2 is a
photocopy of the register of Nikah entries which bears only the stamp of
the office of the Commissioner Bahawalapur Division but it does not
bear any certificate as required under Article 87 of Qanun-e-Shahadat,
1984 that it is the certified copy of the original one. In these
circumstances, it was incumbent upon the learned trial Court to decide
the authenticity of the said document. The learned Appellate Court has
also blindly relied upon the same without considering its authenticity
and admissibility in evidence. Therefore, the remand of the case is
inevitable.

Resultantly, the revision petition in hand is accepted and both the
impugned judgments and decrees dated 18-12-2000 and 16-6-2001
passed by the learned Civil Judge Khanpur as well as the learned
Additional District Judge Khanpur are set aside and the case is
remanded to the learned trial Court with the direction to decide it afresh
after deciding the authenticity and admissibility of Exh.P-2 in evidence in
accordance with law. The learned trial Court will decide the case within a period
of two months positively from the date of receiving the certified copy of this
judgment.
1997 M L D 806
[Lahore]
Before Raja Muhammad Khurshid, J
PROVINCE OF PUNJAB through Collector, District Gujrat and 2

others---Petitioners
versus
MUHAMMAD BASHIR and another---Respondents
11. The authorities cited above lay down a principle that concurrent finding of the
Courts below should not be normally disturbed provided their orders are within the
four corners of law and there is no patent legal error clogging the course of justice. In
the instant case, the learned Courts below did not advert their attention
to the fact that the documents of important nature Exh.D.1 to Exh.D.13
were produced by the petitioners/defendants, but those were taken on
record under objections to their admissibility. It is clear that while
taking those documents on record, the learned trial Court did not spell
out as to what objections were raised; how those were answered by the
other side; and as to what was decision thereon. It is the duty of the
learned. Judge admitting the evidence on record, to record objection if
any, reply thereto and the decision thereon before it is made part and
parcel of the judicial record. In this context, reference to Article 131 read
with Article 162 of Qanun-e-Shahadat Order, 1984 may be made with
advantage. In the instant case, the learned trial Judge ignored this aspect
and admitted the documents under objections, the nature of which was
never determined nor the same were disposed of till the time of
impugned judgment. It is evident that the documentary evidence has to
be proved under Chapter V of Qanun-e-Shahadat 1984, but in the instant
case since the documents remained under undefined and undecided
objections, therefore, the proper evidence could not be examined at the
trial thereby causing prejudice to the petitioners resulting in to
miscarriage of justice. I am also conscious of the provisions contained in
Article 162. of the Qanun-e-Shahdat 1984 whereby improper admission
and rejection of evidence only will not advance a good reason for de novo
trial and the Court may proceed to discuss evidence already on record if
the case can be finally decided without causing prejudice to any side.
However, as I have already stated above that the documentary evidence
in the instant case was brought on record, but had been disbelieved by
the learned trial Court on the ground that the same has not been proved,
in accordance with law. Since the objections remained pending
throughout the trial till the decision of the case, therefore, the parties
were misled not to examine relevant evidence to prove these documents
out of which some per se were admissible. Had the objections been
decided at the time when the same were raised it would have been
possible for the parties to call for such witnesses who could prove those
documents if so required by law. However, since the objections remained
alive throughout, therefore, the petitioners/defendants evidence was
shut out by implication to call for the evidence to prove such documents
in accordance with law. Since precious rights of both the parties are
involved, therefore, it would be just and fair if an opportunity is provided
to both of them to examine proper evidence for which retrial order
would be sine qua non. The judgments of the Courts below suffer from
patent illegality and improper exercise of jurisdiction to rely on
evidence, the admissibility of which was not decided in accordance with
law as pointed out above. This petition is accordingly accepted, judgments of the
Courts below are set aside and the case is remanded to the learned trial Court with a
direction to hold the trial afresh on the issues already framed in the case. Since it has
become fairly an old matter, therefore, a time period of six months is fixed for
disposal of the suit in the Court below. The parties are directed to appear before the
learned trial Court on 6-5-1996.

A.A./P-4/L Case remanded.
2000 M L D 1653
[Lahore]
Before Ch. Ijaz Ahmad, J
KALSOOM AKHTAR---Petitioner
Versus
FAZAL NOOR and others---Respondents
Respondent No. l-plaintiff produced certified copy of Will EXh.P.1 at the time of
recording the evidence of Ghulam Rasool P.W.1 which was objected by the learned
counsel for the petitioner-defendant. Learned trial Court decided all the issues in
favour of the petitioner except Issue No. l which was not pressed by the learned
counsel for the petitioner-defendant. Suit was dismissed on 17-4-1996. Respondent
No.1 filed appeal which was accepted and reversed the finding of the trial Court on
Issues Nos.2 and 5. It is pertinent to mention here that Exh.P.1 is certified copy of the
Will. Original Will was not produced before the trial Court. Record of the Revenue
file also did not contain the certified original Will, dated 11-11-1989. Certified copy of
the revenue proceedings were sent by the Revenue Officer to the trial Court meaning
thereby that the original Will was not produced before the trial Court. The finding of
the First Appellate Court in para.8 that the trial. Court allowed the application qua
the summoning of the Record of the Revenue side but failed to procure the record is
not based on true facts as is evident from the interim order of the trial Court dated
26-2-1996 that the file of the Revenue has been received. This Court vide order,
dated 17-9-1997 reveals that record of the learned trial Court be also requisitioned. I
have perused the record. Finding of the First Appellate Court to this extent is based
on misreading of the record. Order, dated 26-2-1996 'of the trial Court meals that the
proceedings of the Revenue Record have been received. Certified copies of the
Revenue Record are also appended with the record of the trial Court. Therefore,
learned First Appellate Court did not examine the record and decided the case on
surmises and conjectures. It is admitted fact that the original Will was not
produced before the Court and attested copy placed on record with
objection of the learned counsel for the petitioner -defendant. Neither the
learned trial Court nor the Appellate Court decided the objection of the
petitioner-defendant qua the admissibility of the Exh.P.1 (will). It is also
admitted fact according to respondent that the original Will is appended with the
Revenue Record. The record of the revenue side have been requisitioned to prove the
contents of the Will. Since primary evidence was available, therefore, its proof as
required by Articles 78 and 79 of Qanun-e-Shahadat Order, 1984, should have been
furnished. Since the same was not done, therefore, document stood not proved.
Certified copy of Will placed on the file will be treated as secondary evidence as
envisaged by Article 76(g) of the Qanun-e-Shahadat Order. Therefore, same cannot
be considered as primary evidence. It is also settled proposition of law that
production of documentary evidence in the form of primary evidence was essential
for the just decision and for the success of the defendant. Oral statement of P.W.1
and P.W.2 cannot be of any value by not producing available documentary evidence.
It is also settled proposition of law that when any transaction has been drawn and
executed in the form of a document, no amount of oral evidence can be allowed to be
produced to prove the same unless it is shown that original document has been lost
or cannot be produced or procured and that too, after obtaining permission from the
Court for production of secondary evidence. No such permission appears to have
been obtained and that being so mere production of two witnesses could not be paid
to have proved the Will itself. It is true by Article 87 of Qanun-e-Shahadat Order
certified copy of public document is admissible per se and can be received in
evidence but in case where certified copy of a M private document forming pan of
public record is deemed to be produced in p evidence and the execution as well as
existence of the document is denied, then the secondary evidence; by way of certified
copy cannot be received unless existence of original is proved, loss and destruction of
original allowed and established or the original being in possession of the other side
has not been produced by the other side.

The Revenue Record does not indicate that the original was ever produced or
retained and instead certified copy of the document existed there. This being so, the
respondent will be required to fulfill the preconditions before the certified copy of
Will can be entertained. I am conscious of the fact that the learned trial Court did not
decide the objection as to admissibility of document Exh.P.1 (will). While the
Appellate Court took the petitioner surprise by overruling the objection and decreed
the suit. So the Appellate Court was of the view that the original document was
produced and existed in the Revenue Record. If at this stage, the document is
excluded it will create hardship to the respondent-plaintiff as the
respondent will be denied of opportunity to bring on record necessary
evidence to prove existence of original document or loss of the same. It is
repeatedly observed that the original shall resolve the controversy as to
admissibility of document r at the time when the document was
tendered. This is so, because the party can take - up steps to ensure that
the preconditions of admissibility of document are fulfilled. Since I have
observed that the respondent did not produce to establish existence of
original and without proving it, certified copy of the Will cannot be
produced in evidence. Therefore, no option except to send the case back
to the trial Court to allow opportunity to the respondent to either
produce the original or in the alternative to prove the loss therefore.
In view of what has been discussed above, this revision petition is r
accepted with no order as to costs. Resultantly, the impugned judgment
of the First Appellate Court is set aside. The case is remanded to the
learned trial Court to decide afresh in the light of the aforesaid terms.
Since the controversy between the parties is pending adjudication from 1992,
therefore, the trial Court is directed to decide the same as expeditiously as possible.
The parties are directed to appear before the trial Court on 23-6-1999.

H. B. T. /K-19/L
Revision accepted.
MANU/MP/0449/2009
Equivalent Citation: 2010(3)MPHT38, 2010(1)MPLJ135, 2010(1)RCR(Rent)155
IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)
Decided On: 23.09.2009
Appellants: Mahesh Kumar Goyal and Ors.

Vs.
Respondent: Birendra Kumar Dosi
Hon'ble Judges/Coram:
Abhay M. Naik, J.
Case Note:
Property - Admissibility - Sections 12(1) (a), (1) of M.P. Accommodation

Control Act, 1961 - Trial Court decreed suit for eviction in favour of
Respondent against Appellant - Hence, this Appeal - Whether, Court
below had erred in relying on document (Exh. P-11) without deciding
objections about admissibility - Held, question of admissibility was not
decided at all by Trial Judge while rendering decision on merits - Finding
about unavailability of alternative accommodation could not be
examined unless Exh. P-11 was found admissible - Therefore, Courts
below had acted illegally in rendering judgment on basis of Exh. P-11
without deciding objections about admissibility - Appeal allowed in part.
Ratio Decidendi"Question of admissibility of document had to be decided
before deciding suit on merits."
JUDGMENT
.
.
.
From the aforesaid discussion, it is clear that the learned Trial Judge
shirked from its responsibility to decide the question of admissibility of
Exh. P-11 before deciding the suit on merits, though its admissibility was
objected to expressly and specifically. However, fact remains that the
question of admissibility was not decided at all by the learned Trial
Judge while rendering the decision on merits. Learned Lower Appellate
Court also ignored the aforesaid illegality and rendered the impugned
judgment. Finding about unavailability of alternative accommodation
cannot be examined unless the alleged decree of partition, Exh. P-11 is
found admissible.
Long back the Apex Court in the case of Javer Chand v. Pukhraj Surana
MANU/SC/0036/1961 : AIR 1961 SC 1655, has observed--
Where a question as to the admissibility of a document is raised on the

ground that it has not been stamped, or has not been properly stamped,
it has to be decided then and there when the document is tendered in
evidence.
In view of the aforesaid discussion, substantial question of Law No. 3 is

decided in favour of the appellant. It is held that the Courts below have
acted illegally in rendering the judgment on the basis of Exh. P-11
without deciding the objections about admissibility.
Substantial Question of Law No. 1:
As regards this substantial question, it has already been observed in the preceding
paragraphs that finding about bonafide need could not have been legally recorded by
the Courts below without first deciding the objection about admissibility of the
partition decree contained in Exh. P-11. Question of bonafide need is to be examined
only after decision of admissibility of the said decree because the yardsticks for
examining such need would be different when the partition is held proved and when
the partition is not held proved. However, it is held that the finding about bonafide
need recorded by the Courts below without deciding the objection about
admissibility of Exh. P-11 is not presently sustainable in law. Substantial question of
Law No. 1 is answered accordingly.
In the result, appeal is allowed in part. Defendant having accepted the plaintiff as
landlord as revealed in Exhs. P-12 to P-67 is held a tenant of the plaintiff at the rent
of Rs. 300/- per month. Finding about arrears of rent is also confirmed. However,
giving the benefit of Sections 12(3) and 13(5) of M.P. Accommodation Control Act,
suit for eviction on the ground of Section 12(1)(a) of the Act stands dismissed. As
regards claim for eviction on the ground of bonafide need, the same is to
be re-adjudicated by the Trial Court after deciding the objection about
admissibility of Exh. P-11. No fresh evidence is to be recorded. Learned
Trial Judge will allow both the parties to address on the question of
admissibility of Exh. P-11 and will thereafter pass a fresh decision in
accordance with law within a period of three months from the date of
appearance. Parties to appear in the Trial Court on 20th October, 2009.
Judgment and decree of the Courts below are set aside to the aforesaid
extent.
No order as to costs.
MANU/DE/1352/2001
Equivalent Citation: 96(2002)DLT131, 2002(3)RCR(Civil)239
IN THE HIGH COURT OF DELHI
CR No. 607/2000
Appellants: Shail Kumari

Vs.
Respondent: Saraswati Devi
Mahmood Ali Khan, J.
Judgment
24. The question of admissibility of the document has to be decided at the

Deferring a decision on the question of admissibility of the document
and making it part of the evidence by marking exhibit mark on it may
lead to complication and in many cases result in grave injustice to the
party, who tenders the document. If the question of admissibility of the
document and making it part of the evidence by marking exhibit mark on
it may lead to complication and in many cases result in grave injustice to
the party, who tenders the document. If the question of admissibility of
the document is deferred to be decided at the time of hearing of final
arguments in many case a party may be deprived of an opportunity to
cure a curable defect or supply the deficiency. It is for this very reason that
the High Court Rules and Order discussed above lay emphasis on prompt disposal of
the objection raised to the admissibility of the document and mode of proof. It may
work great injustice in some cases if left undecided till the arguments are heard for
disposal of the suit. The objection to the admissibility and the proof of the
document should ordinarily be not kept pending and this should be
decided promptly as and when they are raised, particularly if raised
during the recording of the evidence of a witness who is called to prove
it. But the objection certainly be disposed of before the date is fixed for
hearing of final arguments. The view taken by this Court finds support
from the judgment of a Division Bench of this court reported as Sunder
Bala and Anr. v. Sandeep Foam Industries Pvt. Ltd.
MANU/DE/0848/2000 : AIR2000Delhi300 :-
"before we part with the judgment we would like to observe that when appellants
desired to prove the duplicate copy of the certificate No. 3/68/9364 of the post office
dated 23rd March, 1994 marked as PW 1/9 certifying that the letter sent vide postal
receipt No. 4564 dated 13.12.1993 was not received back and was duly delivered, the
method and manner of proof was objected to by learned Counsel for the
defendant/respondent. The objection was not decided by the Trial Court
immediately. The objection with regard to the proof of such vital documents could
not and ought not to have been kept pending. Had the objection been decided by the
Trial Court at an early stage of the proceedings, the plaintiff-appellant might have
taken recourse to remedial measures for proving the said document in accordance
with law. Even appellants did not ask that the objection with regard to proof be
decided in the first instance. Keeping the objections pending and deciding the same
only at the time of delivering final judgment, was not appropriate. Such a practice
has to be depreciated.
25. Having regard to the above discussion and the judgment of the Division Bench
cited above. I am of the considered view that the learned Civil Judge committed
material irregularity in the exercise of jurisdiction in not deciding the question of
admissibility of the document marked 'X' and 'Y' and of marking of exhibit mark on
them immediately when the dispute was raised or after at least the application was
moved by the petitioner making this request.
26. For the reason stated above, the petition is allowed. The order of the trial court by
which it has deferred the consideration of the question of admissibility of the
documents and marking of exhibit on the documents marked 'X' and marked 'Y' to
the stage of final argument is set aside. The trial court is directed to consider this
question at an early date. The filing of power of attorney of the respondent dated
31.7.1998 is allowed subject to payment of Rs. 1000/- as costs. But in the
circumstances of the case, the parties are left to bear their own costs.
MANU/DE/0848/2000
Equivalent Citation: 2000IVAD(Delhi)730, AIR2000Delhi300, 85(2000)DLT478
Regular First Appeal No. 350/99
Appellants:Surender Bala and Ors.

Vs.
Respondent: Sandeep Foam Industries P. Ltd.
Devinder Gupta, A.C.J. and Surinder Kumar Aggarwal, J.
Judgment
17. Before we part with the judgment we would like to observe that when appellants
dated 23rd March, 1994 marked as PW-1/9 certifying that the letter sent vide postal
method and manner of proof was objected to by learned counsel for the
defendant/respondent. The objection was not decided by the trial court
immediately. The objection with regard to the proof of such vital
documents could not and ought not to have been kept pending. Had the
objection been decided by the trial court at an early stage of the
proceedings, the plaintiff appellant might have taken recourse to
remedial measures for proving the said document in accordance with
law. Even appellants did not ask that the objection with regard to proof
be decided in the first instance. Keeping the objections pending and
deciding the same only at the time of delivering final judgment, was not
appropriate. Such a practice has to be depreciated.
18. For the foregoing reasons we find no merit in the appeal. The appeal. The same is
dismissed with no order as to costs.
Equivalent Citation: 2015(6)ABR822, 2015XII AD (S.C.) 29, 2016(1)ALD19(SC),

2016 (114) ALR 253, 2016 2 AWC1899SC, 2016(1)BomCR323, 2015(4)CDR1034(SC),
2016(1)CGLJ46, 2016(2) CHN (SC) 311, 2015(6)CTC793, 2015(4)J.L.J.R.437, 2016-
2-LW552, (2015)8MLJ200(SC), 2016(III)MPJR51, 2016(II)MPJR137,
2016(I)OLR277, 2015(4)PLJR499, 2015(4)RCR(Civil)1023, 2016 130 RD730,
2015(12)SCALE412, (2016)16SCC483, 2016 (1) SCJ 457, 2017 (1) WLN 10 (SC)
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 13361 of 2015 (Arising out of SLP (C) No. 29621 of 2014)
Appellants: Rakesh Mohindra

Vs.
Respondent: Anita Beri and Ors.
Judges/Coram:
M.Y. Eqbal and C. Nagappan, JJ.
22. It is well settled that if a party wishes to lead secondary evidence, the Court is
obliged to examine the probative value of the document produced in the Court or
their contents and decide the question of admissibility of a document in secondary
evidence. At the same time, the party has to lay down the factual foundation to
establish the right to give secondary evidence where the original document cannot be
produced. It is equally well settled that neither mere admission of a
document in evidence amounts to its proof nor mere making of an
exhibit of a document dispense with its proof, which is otherwise required to
be done in accordance with law.
Equivalent Citation: AIR2003SC4548, 2004(1)ALD18(SC), 2004(1)ARC137,
(SCSuppl)2004(1)CHN66, [2004(2)JCR34(SC)], JT2004(6)SC442, 2004-1-LW728,
(2004)136PLR612, 2003(4)RCR(Civil)704, 2003(2)RCR(Rent)579,
2003(8)SCALE474, (2003)8SCC752, [2003]Supp4SCR450, 2004(1)UC365
Equivalent Citation : (2003 )8SCC 752
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 10585 of 1996
Appellants:R.V.E. Venkatachala Gounder

Vs.
Respondent:Arulmigu Viswesaraswami and V.P. Temple and Ors.
Judges/Coram:
R.C. Lahoti and Ashok Bhan, JJ.
20. The learned counsel for the defendant-respondent has relied on The Roman
Catholic Mission v. The State of Madras and Anr. MANU/SC/0253/1966 :
[1966]3SCR283 in support of his submission that a document not admissible in
evidence, though-brought on record, has to be excluded from consideration. We do
not have any dispute with the proposition of law so laid down in the abovesaid case.
However, the present one is a case which calls for the correct position of law being
made precise.
Ordinarily an objection to the admissibility of evidence should be taken when it is

tendered and not subsequently.
The objections as to admissibility of documents in evidence may be classified into

two classes:- (i) an objection that the document which is sought to be proved is itself
inadmissible in evidence; and (ii) where the objection does not dispute the
admissibility of the document in evidence but is directed towards the mode of proof
alleging the same to be irregular or insufficient. In the first case, merely because a
document has been marked as 'an exhibit', an objection as to its admissibility is not
excluded and is available to be raised even at a later stage or even in appeal or
revision. In the latter case, the objection should be taken before the evidence is
tendered and once the document has been admitted in evidence and marked as an
exhibit, the objection that it should not have been admitted in evidence or that the
mode adopted for proving the document is irregular cannot be allowed to be raised at
any stage subsequent to the marking of the document as an exhibit. The later
proposition is a rule of fair play. The crucial test is whether 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 made 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. Out of the two types of objections, referred to hereinabove in the
later case, 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. In the first case, acquiescence
would be no bar to raising the objection in superior Court.
21. Privy Council in Padman and Ors. v. Hanwanta and Ors. MANU/PR/0104/1915 :
(1915)17BOMLR609 did not permit the appellant to take objection to the
admissibility of a registered copy of a will in appeal for the first time. It was held that
this objection should have been taken in the trial court. It was observed:
"The defendants have now appeal to the Majesty in Council and the case has been
argued on their behalf in great detail. It was urged in the course of the argument that
a registered copy of the will of 1898 was admitted in evidence without sufficient
foundation being led for its admission. No objection, however, appears to have been
taken in the first court against the copy obtained from the Registrar's office being put
in evidence. Had such objection being made at the time, the District Judge, who tried
the case in the first instance, would probably have seen that the deficiency was
supplied. Their lordships think that there is no substance in the present contention."
2000 M L D 1653
[Lahore]
Before Ch. Ijaz Ahmad, J
KALSOOM AKHTAR---Petitioner
Versus
FAZAL NOOR and others---Respondents

Civil Revision No. 1202 of 1997, decided on 9th June, 1999

(a) Specific Relief Act (I of 1877)---

----Ss. 42 & 55---Civil Procedure Code (V of 1908), S.115---Suit for declaration and
permanent mandatory injunction---Plaintiff had claimed that original owner of
property in dispute had executed "will" to the extent of one-third share of his
ownership in favour of plaintiff---Plaintiff could not produce original copy of the
"will" but produced certified copy thereof to which defendant objected---Trial Court
did not decide objection of defendant as to admissibility of certified copy of "will"
while Appellate Court below overruled objection of defendant and decreed the suit
holding that original "will" though was not produced by plaintiff before Trial Court,
but same was produced and annexed with Revenue Record---Appellate Court below
gave such finding without examining record and decided the case on surmises and
conjectures---Finding of Appellate Court below based on misreading and
non-reading bf record, could not sustain---High Court set aside judgment of
Appellate Court below in exercise of its revisional jurisdiction and sent the case to
Trial Court to decide afresh to allow plaintiff/respondent opportunity to either
produce original copy of the "will" or in alternative to prove loss thereof.

1997 MLD 23761997 CLC 1957 and 1995 MLD 690 ref.

(b) Qanun-e-Shahadat (10 of 1984)---

----Arts. 76(g), 78 & 79---Specific Relief Act (I of 1877), s.42 & 55---Suit for
declaration and permanent mandatory injunction---Production of secondary
evidence in presence of primary evidence---Plaintiff claimed one-third share of
property of original owner thereof on basis of "will" executed by the owner in favour
of plaintiff---Plaintiff, who could not produce original copy of the "will" in proof of
his claim, produced certified copy thereof contending that original "will" was
appended with Revenue Record--Validity---Primary evidence claimed to be available
by plaintiff, its proof as required by Arts.78 & 79 of Qanun-e-Shahadat, 1984 should
have been furnished by plaintiff, which having not been produced, original "will"
stood not proved---Certified copy of "will" placed on record would be treated as
secondary evidence as envisaged by Art.76(g) of Qanun-e-Shahadat, 1984 and could
not be considered as primary evidence.

(c) Qanun-e-Shahadat (10 of 1984)---

----Arts. 70, 72, 73 & 74---Production of oral and documentary evidence--Production
of documentary evidence in form of primary evidence was essential for just
decision---Oral evidence of witnesses could not be of any value without producing
available documentary evidence---When any transaction had been drawn and
executed in form of document, no oral evidence could be allowed to be produced to
prove same unless it was shown that original document had been lost or could not be
produced or procured and that, too, after obtaining permission from the Court for
production of secondary evidence.

(d) Qanun-e-Shahadat (10 of 1984)---

----Arts. 74 & 87---Production of certified copy of public document---
Admissibility---Certified copy of public document though was admissible per se and
could be received in evidence, but where certified copy of a private document
forming part of public record was deemed to be produced in evidence and the
execution as well as existence of document was denied, then secondary evidence by
way of certified copy could not be received unless existence of original was proved,
loss and destruction of original allowed and established or the original being in
possession of the other side had not been produced by the other side---Original
document could resolve controversy as to admissibility of document at the time when
document was tendered.

Muhammad Masood Chishti for Petitioners.

Sardar Anwar-ul-Haque for Respondent No. 1.

Muhammad Khurshid Anwar for Respondent No.2.

Date of hearing: 9th June, 1999.

JUDGMENT

Brief facts out of which the present revision petition arises are that the respondent
No. l Fazal Noor filed a suit for declaration with permanent mandatory injunction in
Civil Court, Narowal on 15-2-1992. Contents of the plaint reveal that the suit
property measuring 360 Kanals of land situated in Village Ransiwal, Tehsil and
District Narowal was owned by Maj. Rtd. Mansabdar the real brother of respondent
No. l-plaintiff who had two wives namely Surryia Begum and Begum Jan. Begum Jan
has since been died and Akhtar-un-Nisa respondent No.3 is the only daughter of
Begum Jan. Contents of the plaint further reveal that Kalsoom Akhtar petitioner No.
l defendant was servant of Mansabdar and she remained in his house as servant till
his death. After the death of Maj. Rtd. Mansabdar petitioner No.1 defendant claimed
herself to be his widow which resulted in dispute to the family of respondent No.1
plaintiff and she suffered mental torture and that no entry of this Nikah with
petitioner No. l/defendant is visible in the record of Union Council concerned.
Petitioner No.1/respondent showing herself to be the widow of Mansabdar got
sanctioned Mutation No.222 of his inheritance in her favour and also alienated some
of the land out of the land in question which act of petitioner-respondent No. l is
illegal, void ab initio, collusive, based on fraud and is liable to be set aside. Contents
of the plaint further reveal that before the death of Mansabdar he was living on his
Dera Haveli and the respondent No. l-plaintiff rendered service for him and he
executed Will to the extent of 1/3rd share of his ownership in favour of
respondent-plaintiff on 11-11-1989. Respondent No.1 plaintiff after the death of
Mansabdar produced the aforesaid will before the Tehsildar for attestation of
mutation which was not accepted on the ground that it was not registered Will
whereas according to Muslim Law it is not compulsory registrable and appeal against
this order was also rejected which orders also illegal and not binding upon the
respondent No.1-plaintiff. Present petitioners and respondents Nos.1, 4 to 7 and
respondent No.2-defendant No.3 filed separate written statements. In their written
statements they controverted the allegations leveled in the plaint. Out of the
pleadings of the parties, the trial Court framed the following issues:--

(i) Whether the suit is not maintainable in its present form? OPD

(ii) Whether the plaintiff has no cause of action and locus standi to file this
suit? OPD

(iii) Whether the suit has been incorrectly valued for the purposes of
court-fee and jurisdiction? If so, what is correct valuation and to what
extent? OPD

(iv) Whether the defendants are entitled to special costs under section
35-A of C.P.C.? OPD

(v) Whether deceased Mansabdar Khan had made a Will, dated 11-1-1989
in favour of the plaintiff to the extent of 1/3rd of the suit land and as
such the order passed by Revenue Department ignoring the Will are
illegal, void, without authority and ineffective upon the rights of the
plaintiff? OPP

The trial Court dismissed the suit vide judgment and decree, dated 17-4-1996.
Respondent being aggrieved by the aforesaid judgment and decree of the trial Court
filed an appeal before the District Judge, Narowal who entrusted the same to
Additional District Judge, Narowal. Learned Additional District Judge reversed the
finding of Issues Nos.2 and 5 and accepted the appeal partially to the extent that
Fazal Noor respondent No.1 plaintiff is owner of 1/3rd share of the said Mansabdar
Khan deceased and appeal to the rest of the prayer was dismissed vide judgment and
decree, dated 9-7-1997. Hence the present revision petition. Learned counsel for the
petitioners stated that the respondents-plaintiffs did not produce the original Will
and subsequently, during the trial moved an application for permission to lead
secondary evidence so as to prove the certified copy of the same. This application was
rejected vide order; dated 12-12-1996. Thereafter, the respondent-plaintiff filed
another application to summon record from the Revenue Record as the original will
is produced before the Revenue Authority which was accepted vide order, dated
4-1-1996. He further stated that the Revenue Authority sent the file to the trial Court
which was received by the trial Court on 26-2-1996. Learned counsel for the
petitioner further stated that at time of statement of P.W.1 respondent produced
certified copy of the Will which was placed on record by the trial Court with the
objection of the learned counsel for the petitioner. He further stated that
respondent/plaintiff was debarred from producing any evidence so as to bring the
copy of the said document on record. He further stated that both the Courts below
have erred in law taking into consideration the aforesaid document. Consequently,
evidence with regard to the said copy of the document i.e. Exh. P. 1 is not validly
brought on record. He further, stated that learned First Appellate Court reversed the
finding on Issues Nos.2 and 5 without adverting to the reasoning of the Trial Court.
He further stated that evidence of P.W.1 and P.W.2 did not inspire confidence as the
statements of P.W.1 and P.W.2 are contradicting each other on material points. He
further stated that respondents-plaintiffs failed to produce scriber of the will but the
First Appellate Court did not consider this aspect of the case. He further stated that
Maj. Rtd. Mansabdar has enmity with the son of respondent No. 1, therefore,
question of executing Will in favour of respondent No. l is not believable. He further
stated that the statements of P.W.1 and P.W.2 reveal that matter was patched up
between Mansabdar and Muhammad Younis 15/20 days before the execution of the
Will. He further stated that statement of the First Appellate Court is result of
misreading or non-reading of the record. He further stated that statement of the First
Appellate Court is based on surmises and conjectures. He further stated that
judgment of the First Appellate Court is in violation of the principle laid down by the
superior Courts. He relied upon 1997 MLD 2376, 1997 CLC 1957 and 1995 MLD 690.

2. Learned counsel for the respondent No.2 supported the case of the petitioner.
Learned counsel for the respondent No. l contended that learned counsel for the
petitioners failed to point out any irregularity committed by the First Appellate Court
or failed to point out any legal infirmity committed by the First Appellate Court.
Therefore, findings of the First Appellate Court cannot be disturbed while exercising
power under section 115 of Civil Procedure Code. He further stated that record was
summoned by trial Court and in case the original Will was not available in the
Revenue Record then it is the duty and obligation of the Trial Court to point out the
same to the respondent/plaintiff. Therefore, respondents could not be penalised by
the act of the Court. He further stated that judgment of the trial Court is result of
misreading or non-reading of the record whereas the judgment of the First Appellate
Court is based on reasoning and the First Appellate Court has given finding of fact
after proper appreciation of the evidence on record. He further stated that the
original Will was not available with the respondents plaintiffs as the same was
produced before the Revenue Authority for the purpose of attestation of the original
mutation in favour of respondents plaintiffs.

3. I have given my anxious consideration to the contention of the learned counsel for
the parties. It is better and appropriate to reproduce the admitted facts to resolve the
controversy between the parties in chronological order which are as follows:--

(i) Respondents alleged Maj. Rtd. Munsabdar Khan executed Will in
favour of Fazal Noor on 11-11-1989.

(ii) Mutation was sanctioned on 17-4-1990 in favour of the legal heirs of
Munsabdar and did not accept the Will produced by the respondent
No. 1.

(iii) Respondent No. l filed appeal before the Assistant Collector against
the aforesaid mutation of inheritance. The same was also rejected by
the Assistant Collector vide order, dated 13-6-1991.

(iv) Respondent No. l filed a suit for declaration with permanent and
mandatory injunction on 15-2-1992. Respondent No. l-plaintiff filed an
application before the trial Court that the original Will is with the
Revenue Record which was filed for the attestation of mutation and the
same be summoned. Trial Court allowed the application vide order,
dated 4-1-1996 subject to all just exceptions.

(v) Respondent-plaintiff submitted an application for permission to
produce secondary evidence on 6-12-1995. Application was rejected
vide order, dated 12-12-1995.

(vi) Revenue proceedings were received before the trial Court as is evident
from the order, dated 26-2-1996.

Respondent No. l-plaintiff produced certified copy of Will EXh.P.1 at the time of
recording the evidence of Ghulam Rasool P.W.1 which was objected by the learned
counsel for the petitioner-defendant. Learned trial Court decided all the issues in
favour of the petitioner except Issue No. l which was not pressed by the learned
counsel for the petitioner-defendant. Suit was dismissed on 17-4-1996. Respondent
No.1 filed appeal which was accepted and reversed the finding of the trial Court on
Issues Nos.2 and 5. It is pertinent to mention here that Exh.P.1 is certified copy of the
Will. Original Will was not produced before the trial Court. Record of the Revenue
file also did not contain the certified original Will, dated 11-11-1989. Certified copy of
the revenue proceedings were sent by the Revenue Officer to the trial Court meaning
thereby that the original Will was not produced before the trial Court. The finding of
the First Appellate Court in para.8 that the trial. Court allowed the application qua
the summoning of the Record of the Revenue side but failed to procure the record is
not based on true facts as is evident from the interim order of the trial Court dated
26-2-1996 that the file of the Revenue has been received. This Court vide order,
dated 17-9-1997 reveals that record of the learned trial Court be also requisitioned. I
have perused the record. Finding of the First Appellate Court to this extent is based
on misreading of the record. Order, dated 26-2-1996 'of the trial Court meals that the
proceedings of the Revenue Record have been received. Certified copies of the
Revenue Record are also appended with the record of the trial Court. Therefore,
learned First Appellate Court did not examine the record and decided the case on
surmises and conjectures. It is admitted fact that the original Will was not
produced before the Court and attested copy placed on record with
objection of the learned counsel for the petitioner -defendant. Neither the
learned trial Court nor the Appellate Court decided the objection of the
petitioner-defendant qua the admissibility of the Exh.P.1 (will). It is also
admitted fact according to respondent that the original Will is appended with the
Revenue Record. The record of the revenue side have been requisitioned to prove the
contents of the Will. Since primary evidence was available, therefore, its proof as
required by Articles 78 and 79 of Qanun-e-Shahadat Order, 1984, should have been
furnished. Since the same was not done, therefore, document stood not proved.
Certified copy of Will placed on the file will be treated as secondary evidence as
envisaged by Article 76(g) of the Qanun-e-Shahadat Order. Therefore, same cannot
be considered as primary evidence. It is also settled proposition of law that
production of documentary evidence in the form of primary evidence was essential
for the just decision and for the success of the defendant. Oral statement of P.W.1
and P.W.2 cannot be of any value by not producing available documentary evidence.
It is also settled proposition of law that when any transaction has been drawn and
executed in the form of a document, no amount of oral evidence can be allowed to be
produced to prove the same unless it is shown that original document has been lost
or cannot be produced or procured and that too, after obtaining permission from the
Court for production of secondary evidence. No such permission appears to have
been obtained and that being so mere production of two witnesses could not be paid
to have proved the Will itself. It is true by Article 87 of Qanun-e-Shahadat Order
certified copy of public document is admissible per se and can be received in
evidence but in case where certified copy of a M private document forming pan of
public record is deemed to be produced in p evidence and the execution as well as
existence of the document is denied, then the secondary evidence; by way of certified
copy cannot be received unless existence of original is proved, loss and destruction of
original allowed and established or the original being in possession of the other side
has not been produced by the other side.

The Revenue Record does not indicate that the original was ever produced or
retained and instead certified copy of the document existed there. This being so, the
respondent will be required to fulfill the preconditions before the certified copy of
Will can be entertained. I am conscious of the fact that the learned trial Court did not
decide the objection as to admissibility of document Exh.P.1 (will). While the
Appellate Court took the petitioner surprise by overruling the objection and decreed
the suit. So the Appellate Court was of the view that the original document was
produced and existed in the Revenue Record. If at this stage, the document is
excluded it will create hardship to the respondent-plaintiff as the
respondent will be denied of opportunity to bring on record necessary
evidence to prove existence of original document or loss of the same. It is
repeatedly observed that the original shall resolve the controversy as to
admissibility of document r at the time when the document was
tendered. This is so, because the party can take - up steps to ensure that
the preconditions of admissibility of document are fulfilled. Since I have
observed that the respondent did not produce to establish existence of
original and without proving it, certified copy of the Will cannot be
produced in evidence. Therefore, no option except to send the case back
to the trial Court to allow opportunity to the respondent to either
produce the original or in the alternative to prove the loss therefore.

In view of what has been discussed above, this revision petition is r
accepted with no order as to costs. Resultantly, the impugned judgment
of the First Appellate Court is set aside. The case is remanded to the
learned trial Court to decide afresh in the light of the aforesaid terms.
Since the controversy between the parties is pending adjudication from 1992,
therefore, the trial Court is directed to decide the same as expeditiously as possible.
The parties are directed to appear before the trial Court on 23-6-1999.

H. B. T. /K-19/L

Revision accepted.

1997 M L D 806
[Lahore]
Before Raja Muhammad Khurshid, J
PROVINCE OF PUNJAB through Collector, District Gujrat and 2

others---Petitioners
versus
MUHAMMAD BASHIR and another---Respondents

Civil Revision No. 1535 of 1995, heard on 10th April, 1996.

(a) Civil Procedure Code (V of 1908)---

----S. 115---Limitation Act (IX of 1908), S.5---Delay in filing revision--Grounds for
condonation of delay---Sufficiency of cause---Delay of each day in filing revision
beyond limitation period to be explained---Term "sufficient cause" elucidated.
---[Words and phrases].

Delay of each day in filing the revision petition beyond the limitation period should
be meticulously and satisfactorily explained, Law of limitation equally applies to an
ordinary citizen and a Government Department. No distinction can be shown to a
Government Department only because it has to seek advice from different
departmental authorities before availing a legal and remedial action. However, the
perusal of section 5 of the Limitation Act would show that in appropriate cases delay
can be condoned if sufficient cause was shown for such condonation. The term
"sufficient cause" should receive a liberal construction so as to advance substantial
justice. On the one hand a precious right is accrued to a party on account of expiry of
limitation period whereas the right of another party should not be defeated only on
technical ground. The words "sufficient cause" being a question of fact, vary from
case to case and ultimately it rests on the satisfaction of the Court. If Court reaches a
conclusion that a circumstance or a set of circumstances shown by a party, justified
the act or omission of such party for not preferring an appeal or application within
the prescribed period, the Court may extend the time. Though section 5, Limitation
Act, 1908 gives a wide discretion to Court in determining what is "sufficient cause",
but the discretion has to be exercised in a judicial manner. "Sufficient cause" must
refer to a circumstance which was beyond the control of the party invoking the aid of
section 5, Limitation Act, 1908 for condonation of delay. A genuine or a good cause
or cause which was beyond the control of a party or a cause, which was unavoidable
despite care and caution, would amount to "sufficient cause". The test would be
whether the cause of delay could have been avoided by the party by exercising due
care and attention, in other words, whether it is a bona fide cause, not tainted by
wilful negligence or carelessness.

Where the Government Department concerned acted diligently in applying to the
copying agency for obtaining the certified copy well within time and after its delivery
to them, the machinery was set in motion for filing the revision petition and the
matter was sent to the Advocate-General, by the Solicitor's Department, Government
of the Punjab, directing him to file appeal or revision petition before the High Court,
but Advocate-General, Punjab intimated to the Solicitor, Government of the Punjab
that it was not a fit case for filing an appeal or revision whereupon the matter was
again taken up by the department concerned which preferred to file revision petition.
In such a situation, it could not be successfully urged that the petitioners were
indolent or they had slept over the issue instead of moving in right direction. On the
contrary it appears that the department concerned acted diligently and hotly pursued
the matter. The delay, therefore, occurring in filing the revision petition was not
crucial so as to dismiss this petition on account of being time-barred. The petition
under section 5 of the Limitation Act was, therefore, allowed and the delay in filing of
revision petition was condoned.

Deputy Director Food, Lahore Region and others v. Syed Safdar Hussain Shah 1979
SCMR 45; Custodian of Enemy Property v. Hoshang M. Dastur and others 1979
SCMR 191; Mst. Ghulam Fatima v. Chief Administrator of Auqaf, Punjab and another
1983 CLC 692; The West Pakistan Agriculture Development Corporation and 2
others v. Soomar and 2 others PLD 1984 Kar. 190; Commissioner of Income-tax,
Lahore Zone v. Rais Pir Ahmad Khan 1981 SCMR 37 and Government of the Punjab
through Secretary (Services), Services General Administration and Information
Department, Lahore and another v. Muhammad Laseem PLD 1995 SC 396 ref:

(b) Qanun-e-Shahadat (10 of 1984)--

----Arts. 131 & 162---Admissibility of evidence---Duty of Court---Mode of admitting
evidence---Court while admitting evidence must record objection if any, reply
thereto, and decision thereon before it was made part and parcel of judicial
record---Where documentary evidence was disbelieved by Trial Court on the ground
that same had not been proved in accordance with law and objections with regard to
its admissibility remained pending throughout, defendant's, evidence was shut out
by implication to call for the evidence to prove such documents in accordance with
law---Judgments and decrees of Courts below thus, suffered from patent illegality
and improper exercise of jurisdiction to rely on evidence, admissibility of which was
not decided in accordance with law---Case was remanded to Trial Court with
direction to hold trial afresh on the issues already framed in accordance with law.--

Mst. Sakina Bibi and another v. Mamla and 2 others PLD 1977 Lah. 202; Sabir Ali v.
Deputy Commissioner and Settlement Commissioner, Sanghar and 2 others 1983
CLC 255; Muhammad Hassan and another v. Settlement Commissioner (Lands),
Khairpur and 4 others PLD 1983 Kar. 353; Sher Afzal Khan and others v. Haji Razi
Abdullah and others 1984 SCMR 228; Nawab Din and another v. Shabbir Hussain
and others 1994 SCMR 553; Haji Muhammad Zaman v. Zafar Ali Khan and others
PLD 1986 SC 88; Irshad Hussain v. Ijaz Hussain and others PLD 1994 SC 326 and
Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 ref.

Muhammad Riaz Lone for Petitioners.

Ch. Ali Muhammad for Respondents.

Date of hearing: 10th April, 1996.

JUDGMENT

The concurrent finding of the Courts below are impugned in this revision petition on
the grounds that the Courts below acted in exercise of their jurisdiction with material
irregularity, illegality and impropriety; that the impugned judgments and decrees
have been made on the patent misreading and non-reading of the evidence produced
at the trial in respect of ownership and possession of the land in dispute; that the
material issue such as the plea regarding the bona fide purchaser raised by the
petitioner/defendants was not decided properly or legally.

2. An application under section 5 of the Limitation Act was moved with the prayer
that condonation of delay in filing the revision petition be made as the petitioners
had never shown any indolence or inadvertence in filing the revision petition. On the
contrary much time was consumed in securing legal advice to examine the question
whether the revision petition should be filed or not and till an ultimate decision was
taken the limitation period had run out. It was, therefore, contended that there were
sufficient reasons for condonation of delay.

3. The revision petition was opposed by the respondents plaintiffs who are the
successors-in-interest of the original plaintiff namely Sain. First of all the
condonation of delay in filing the revision petition was seriously challenged on the
ground that the petitioners acted indolently and did not file the revision petition
within 90 days nor there were sufficient reasons to withhold them from filing the
same. It was further submitted that the petitioners were not only careless but acted
in negligent and contumacious manner to file this revision petition, though the office
of Advocate-General, Punjab had advised them not to come in revision petition.

4. A question would therefore, arise whether there are sufficient reasons for the
condonation of delay in filing the revision petition. The 2nd proviso to section 115,
C.P.C. provides a period of 90 days from the decision of the subordinate Court to file
a revision petition in the High Court. Apparently the provisions of section 5 of the
Limitation Act would be attracted to consider whether the delay beyond that period
could be condoned or not. In the instant case the judgment of the learned trial Court
was delivered on 1-10-1985 whereas the appeal against it was dismissed by the
learned Additional District Judge, Gujrat vide his judgment, dated 27-2-1995. Hence
the period of limitation will start from the aforesaid date and will be computed while
keeping in view the provisions contained in section 12 of the Limitation Act. It says
that the date from which such period is to be reckoned shall be excluded. In that way
the day when the judgment of the lower Appellate Court was announced i.e.
27-2-1995 shall stand excluded. The limitation shall start running from the next
following day i.e. 28-2-1995. Certified copy of the aforesaid judgment shows that the
petition was made on 6-3-1995 for obtaining certified copy of the judgment. The
judgment was ready on 21-3-1995 and was delivered to the petitioners/appellants on
28-3-1995. It is thus obvious that the period from 6-3-1995 to 28-3-1995 shall be
excluded and as such the mathematical computation of the period of limitation will
show that the revision petition was time-barred by 26 days. Although this has not
been made clear in the petition for condonation of delay moved by the petitioners
that by how many days the petition was barred by time, but still as calculated above,
the period of default comes to 26 days instead of 48 days, as alleged in reply to the
petition by the respondents/plaintiffs.

5. The petition for condonation of delay is vehemently opposed on the ground that it
was hopelessly time-barred; that the petitioners acted against the advice-of their Law
Officer and the Advocate-General, Punjab, who were of the opinion that it was not a
fit case for filing the revision; that the decision of the Secretary to Government of the
Punjab in filing the appeal against the legal advice was contumacious particularly
when the time-frame was not followed in filing the revision petition and that the
mere fact that the delay had occurred in soliciting the advice from the Solicitor and
the Advocate-General, Punjab would not constitute a good ground for condonation of
delay because the Government have a highly skilled and properly paid staff to deal
with such situation quickly, promptly and at priority level. In this context reliance
was placed on a number of authorities out of which special emphasis was laid on:--

(i) Deputy Director Food, Lahore Region and others v. Syed Safdar Hussain Shah
reported as 1979 SCMR 45;

(ii) Custodian of Enemy Property v. Hoshang M. Dastur and others reported as 1979
SCMR 191;

(iii) Mst. Ghulam Fatima v. Chief Administrator of Auqaf, Punjab and another
reported as 1983 CLC 692;

(iv) The West Pakistan Agriculture Development Corporation and 2 others v. Soomar
and 2 others reported as PLD 1984 Kar. 190;

(v) Commissioner of Income-tax, Lahore Zone v. Rais Pir Ahmad Khan reported as
1981 SCMR 37;

(vi) Government of the Punjab through Secretary (Services), Services General
Administration and Information Department, Lahore and another v. Muhammad
Laseem reported as PLD 1995 SC 396.

6. There is no dispute that the principle laid down in the above authorities that delay
of each day in filing the revision petition beyond the limitation period should be
meticulously and satisfactorily explained and that the law of limitation equally
applies to an ordinary citizen and a Government Department. No distinction can be
shown to a Government Department only because it has to seek advice from different
departmental authorities before availing a legal and remedial action. However, the
perusal of section 5 of the Limitation Act will show that in appropriate cases delay
can be condoned if sufficient cause is shown for such condonation. The term
"sufficient cause" should receive a liberal construction so as to advance substantial
justice. On the one hand a precious right is accrued to a party on account of expiry of
limitation period whereas the right of another party should not be defeated only on
technical ground. The words "sufficient cause" being a question of fact, vary from
case to case and ultimately it rests on the satisfaction of the Court. If one reaches a
conclusion that a circumstance or a set of circumstances shown by a party, justified
the act or omission of such party for not preferring an appeal or application within
the prescribed period, the Court may extend the time. Though the section gives a
wide discretion in determining what is "sufficient cause", but the discretion has to be
exercised in a judicial manner. It should be remembered that "sufficient cause" must
refer to a circumstance which is beyond the control of the party invoking the aid of
the section for condonation of delay. A genuine or a good cause or a cause which is
beyond the control of a party or a cause, which is unavoidable despite care and
caution, would amount to "sufficient cause". The test would be whether the cause of
delay could have been avoided by the party by exercising due care and attention, in
other words, whether it is a bona fide cause, not tainted by wilful negligence or
carelessness.

7. In the instant case the Government Department concerned acted diligently in
applying to the copying agency for obtaining the certified copy well within time and
after its delivery to them, the machinery was set in motion for filing the revision
petition. The photo copy attached with the application under section 5 of the
Limitation Act for condonation of delay (C.M. No. l of 1995) at page 84 (Annexure
"A") will show that matter was sent to the Advocate-General, by the Government of
the Punjab Solicitors Department on 20-4-1995, whereby the Advocate-General,
Punjab was directed to file the appeal or revision petition before the High Court.
However, the learned AdvocateGeneral, Punjab intimated to the Solicitor,
Government of the Punjab vide Annexure "B" that it was not a fit case for filing an
appeal or revision whereupon the matter was again taken up by the Government
Department concerned which preferred to file this revision petition. In such a
situation, it could not be successfully urged that the petitioners were indolent or they
had slept over the issue instead of moving in right direction. On the contrary it
appears that the department concerned acted diligently and hotly pursued the
matter. The delay, therefore, occurring in filing the revision petition is not crucial so
as to dismiss this petition on account of being time-barred. The petition under
section 5 of the Limitation Act is, therefore, allowed and the delay in filing of revision
petition is condoned.

8. Now I would like to discuss the case on merits. The petitioners have based their
claim on the land in question, on the ground that it was given to them for
aforestation prior to its allotment to the predecessor-in-interest of the respondents.
In this regard, the respondents had relied upon the documents i.e. Exh.D.l to
Exh.D.13, which were brought on record subject to objection, from the other side.
These documents were produced to show that the land in question was in possession
of the petitioners and that they were the bona fide purchasers for valuable
consideration.

9. Conversely the respondents based their case for proprietary right in the disputed
land having been permanently transferred to them vide R.L. 2 Exh.P2. It was
contended that since the property had been permanently settled upon the
predecessor-in-interest of the respondents, therefore, it was not available for any
further alienation and as such the subsequent alienation in favour of the petitioners
was without any legal effect. Reliance was placed on:--

(i) Mst. Sakina Bibi and another v. Manila and 2 others reported as PLD 1977 Lah.
202,

(ii) Sabir Ali v. Deputy Commissioner and Settlement Commissioner, Sanghar and 2
others reported as 1983 CLC 255,

(iii) Muhammad Hassan and another v. Settlement Commissioner (Lands), Khairpur
and 4 others reported as PLD 1983 Kar. 353,

(iv) Sher Afzal Khan and others v. Haji Razi Abdullah and others reported as 1984
SCMR 228,

(v) Nawab Din and another v. Shabbir Hussain and others reported as 1994 SCMR
553.

10. Another point was raised that a revision petition against the concurrent finding of
the Courts below cannot be entertained for which reliance was placed on:

(i) Haji Muhammad Zaman v. Zafar Ali Khan and others reported as PLD 1986 SC
88,

(ii) Irshad Hussain v. Ijaz Hussain and others reported as PLD 1994 SC 326,

(iii) Haji Muhammad Din v. Malik Muhammad Abdullah reported in PLD 1994 SC
291.

11. The authorities cited above lay down a principle that concurrent finding of the
Courts below should not be normally disturbed provided their orders are within the
four corners of law and there is no patent legal error clogging the course of justice. In
the instant case, the learned Courts below did not advert their attention
to the fact that the documents of important nature Exh.D.1 to Exh.D.13
were produced by the petitioners/defendants, but those were taken on
record under objections to their admissibility. It is clear that while
taking those documents on record, the learned trial Court did not spell
out as to what objections were raised; how those were answered by the
other side; and as to what was decision thereon. It is the duty of the
learned. Judge admitting the evidence on record, to record objection if
any, reply thereto and the decision thereon before it is made part and
parcel of the judicial record. In this context, reference to Article 131 read
with Article 162 of Qanun-e-Shahadat Order, 1984 may be made with
advantage. In the instant case, the learned trial Judge ignored this aspect
and admitted the documents under objections, the nature of which was
never determined nor the same were disposed of till the time of
impugned judgment. It is evident that the documentary evidence has to
be proved under Chapter V of Qanun-e-Shahadat 1984, but in the instant
case since the documents remained under undefined and undecided
objections, therefore, the proper evidence could not be examined at the
trial thereby causing prejudice to the petitioners resulting in to
miscarriage of justice. I am also conscious of the provisions contained in
Article 162. of the Qanun-e-Shahdat 1984 whereby improper admission
and rejection of evidence only will not advance a good reason for de novo
trial and the Court may proceed to discuss evidence already on record if
the case can be finally decided without causing prejudice to any side.
However, as I have already stated above that the documentary evidence
in the instant case wa7ss brought on record, but had been disbelieved by
the learned trial Court on the ground that the same has not been proved,
in accordance with law. Since the objections remained pending
throughout the trial till the decision of the case, therefore, the parties
were misled not to examine relevant evidence to prove these documents
out of which some per se were admissible. Had the objections been
decided at the time when the same were raised it would have been
possible for the parties to call for such witnesses who could prove those
documents if so required by law. However, since the objections remained
alive throughout, therefore, the petitioners/defendants evidence was
shut out by implication to call for the evidence to prove such documents
in accordance with law. Since precious rights of both the parties are
involved, therefore, it would be just and fair if an opportunity is provided
to both of them to examine proper evidence for which retrial order
would be sine qua non. The judgments of the Courts below suffer from
patent illegality and improper exercise of jurisdiction to rely on
evidence, the admissibility of which was not decided in accordance with
law as pointed out above. This petition is accordingly accepted, judgments of the
Courts below are set aside and the case is remanded to the learned trial Court with a
direction to hold the trial afresh on the issues already framed in the case. Since it has
become fairly an old matter, therefore, a time period of six months is fixed for
disposal of the suit in the Court below. The parties are directed to appear before the
learned trial Court on 6-5-1996.

A.A./P-4/L Case remanded.

2013 C L C 1140
[Lahore]
Before Syed Iftikhar Hussain Shah, J
Haji PEERAN DITTA and others----Petitioners
Versus
SHAMS-UD-DIN and others----Respondents

Civil Revision No.471-D of 2001/BWP, heard on 21st June, 2012.

(a) Qanun-e-Shahadat (10 of 1984)---

----Arts. 100 & 101---Nikahnama, 30 years old document---Presumption of
correctness was attached to the signature and contents of a thirty years old
document, if produced from proper custody---Person relying on such document need
not prove its execution---If a document of 30 years old was produced before the
court from proper custody or from the face of it same was free from suspicion, and
court may presume its correctness---Age of document, its non-suspicious character,
its custody and other circumstances provided foundation to raise presumption of its
execution but if the genuineness of the document was in dispute, it was the duty of
the court to decide the question of its genuineness and true character.

(b) Qanun-e-Shahadat (10 of 1984)---

----Arts. 87, 100 & 101---Presumption of correctness of thirty years old document---
Age of document, its unsuspicious character, its custody and other circumstances are
foundation to raise a presumption of its execution and if a document is proved more
than 30 years old, it is permissible in evidence without formal proof, but if the
genuineness of such document is disputed, it is the duty of the court to determine the
question of its genuineness and true character---Certificate under Art.87 of Qanun-e-
Shahadat, 1984 is also a requirement---Court has to decide the authenticity of the
document.

Sardar Muhammad Hussain Khan for Petitioner.

Ch. Riaz Ahmad for Respondents.

Date of hearing: 21st June, 2012.

JUDGMENT

SYED IFTIKHAR HUSSAIN SHAH, J.--- Through this revision petition,
the petitioners have called in question the legality of judgment and decree dated 16-
6-2001 passed by the learned Additional District Judge Khanpur whereby appeal
against the judgment and decree dated 18-12-2000 passed by the learned Civil Judge
Khanpur dismissing the suit instituted by the respondents for seeking decree for
declaration and permanent injunction, was allowed and the suit was decreed.

2. Succinctly, the facts of the case are that the respondents instituted a suit for
seeking declaration to the effect that they being legal heirs of Mst. Kundan are
owners in possession of the land measuring 11-Kanal and 3-Marlas and the mutation
of inheritance is required to be sanctioned in their favour and the respondents
should be permanently restrained from interfering in the ownership rights of the
plaintiffs. Mst. Kundan, who was the real paternal grandmother of the plaintiffs/
respondents died in the year 1982. She was married with Paari Piya, who divorced
her. She contracted second marriage with Rahim Bakhsh and father of the
plaintiffs/respondents namely Karam Din was born out of the wedlock who also died
in the year 1985.

3. The petitioners/defendants contested the suit and it was alleged that Mst.
Kundan was a legally wedded wife of Paari Piya, who never divorced her. The
plaintiffs/respondents have got no relationship with the aforesaid Mst. Kundan as
she was never married with Rahim Bakhsh.

4. Learned trial Court out of the divergent pleadings of the parties framed the
following issues:---

"ISSUES

No.1 Whether plaintiffs being legal heirs of Mst. Kundan are owners in possession of
the disputed property and the entries in Revenue Record are liable to be corrected?
OPP

No.2 Whether plaintiffs have come to the Court with clean hands? OPP

No.3 Whether suit has been properly valued for the purpose of court fee and
jurisdiction? OPP

No.4 Whether suit is maintainable in its present form? OPP

No.5 Whether defendants are entitled to recover special costs from plaintiffs. If so, to
what extent? OPP

No.6 Relief."

5. Learned trial Court after recording of evidence of the parties and
hearing them, dismissed the suit vide judgment and decree dated 18-12-2000.
The respondents preferred an appeal against the said judgment and decree which
was allowed and the learned Appellate Court decreed the suit of the respondents vide
judgment and decree dated 16-6-2001. Hence, this revision petition.

6. Learned counsel for the petitioners has contended that the respondents are
not the legal heirs of Mst. Kundan, who married with Paari Piya and remained his
wife throughout; that she was never divorced by him and never contracted marriage
with Rahim Bakhsh, the alleged grandfather of the respondents; that the alleged
Nikahnama of Mst. Kundan with Rahim Bakhsh Exh.P-2 was placed on record under
objection as it was not duly proved but the learned trial Court while deciding the case
has not given any findings about its admissibility in evidence and the learned
Appellate Court has blindly relied on it holding that it was a 30 years old document;
that the respondents have failed to establish their relationship with Mst. Kundan,
therefore, the findings of the learned Appellate Court are not in accordance with the
provisions of law and are liable to be reversed.

7. On the other hand, learned counsel for the respondents has contended that
the respondents have fully proved that Mst. Kundan was their paternal grandmother
and they are entitled to inherit from her estate and the petitioners being step-brother
have got no right of inheritance in the property left by her, therefore, the revision
petition is liable to be dismissed.

8. I have heard the learned counsel for the parties and have perused the record.

9. The respondents have claimed that Mst. Kundan was their paternal-
grandmother, who after seeking divorce from Paari Piya contracted marriage with
Rahim Bakhsh and Karam Din, father of the respondents, was born out of the
wedlock, therefore, they are entitled to inherit from the estate of their paternal
grandmother. The petitioners have denied that Mst. Kundan had ever married with
Rahim Bakhsh. Nikahnama Exh.P-2 was submitted before the learned trial Court by
the respondents which was admitted in evidence under objection but the learned
trial Court had not decided the said objection and dismissed the suit on the ground
that the respondents failed to prove themselves to be the legal heirs of Mst. Kundan.
On the other hand, learned Appellate Court has relied on the said document Exh.P-2
i.e. Nikahnama being 30
years old document. The presumption of correctness is attached to
the signatures and contents of a thirty years old document, if
produced from proper custody and the person relying need not prove its
execution. Article 100 of the Qanun-e-Shahadat Order, 1984 provided as under:---

"Where any document, purporting or proved to be thirty years old, is produced
from any custody which the Court in the particular case considers proper, the Court
may presume that the signature and every other part of such documents, which
purports to be in the handwriting of any particular person, is in that person's
handwriting, and, in the case of a document executed or attested, that it was duly
executed and attested by the persons by whom it purports to be executed and
attested."

A perusal of Article 100 reveals that required presumption is rebutable. The principle
under lined in Article 100 is that a document of 30 years old is produced before the
Court from proper custody or from the face of it is free from suspicion, Court may
presume its correctness. The age of document, its unsuspicious character, its custody
and other circumstances provide foundation to raise presumption of its execution
but if the genuineness of the document is in-dispute, it is the duty of the Court to
decide the question of its genuineness and true character.

Article 101 of the Qanun-e-Shahadat Order, 1984 is also relevant in this case
which reads as under:---

"The provisions of Article 100 shall apply to such copy of document referred to
in that Article as is certified in the manner provided in Article 87 and is not less than
thirty years old; and such certified copy may be produced in proof of the contents of
the document or part of the document of which it purports to be a copy."

The age of document, its unsuspicious character, its custody and other circumstances
are foundation to raise a presumption of its execution and if a document is proved
more than 30-years old, it is permissible in evidence without formal proof, but if the
genuineness of such document is disputed, it is the duty of the Court to determine
the question of its genuineness and true character. The Nikahnama Exh.P-2 was
produced in evidence under objection and was disputed by the
petitioners/ defendants but the learned trial Court has not given any
findings about the admissibility of the said documents. Exh.P-2 is a
photocopy of the register of Nikah entries which bears only the stamp of
the office of the Commissioner Bahawalapur Division but it does not
bear any certificate as required under Article 87 of Qanun-e-Shahadat,
1984 that it is the certified copy of the original one. In these
circumstances, it was incumbent upon the learned trial Court to decide
the authenticity of the said document. The learned Appellate Court has
also blindly relied upon the same without considering its authenticity
and admissibility in evidence. Therefore, the remand of the case is
inevitable.

Resultantly, the revision petition in hand is accepted and both the
impugned judgments and decrees dated 18-12-2000 and 16-6-2001
passed by the learned Civil Judge Khanpur as well as the learned
Additional District Judge Khanpur are set aside and the case is
remanded to the learned trial Court with the direction to decide it afresh
after deciding the authenticity and admissibility of Exh.P-2 in evidence in
accordance with law. The learned trial Court will decide the case within a period
of two months positively from the date of receiving the certified copy of this
judgment.

JJK/P-6/L Case remanded

MANU/MP/0449/2009
Equivalent Citation: 2010(3)MPHT38, 2010(1)MPLJ135, 2010(1)RCR(Rent)155
IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)
Appellants: Mahesh Kumar Goyal and Ors.

Vs.
Respondent: Birendra Kumar Dosi
Abhay M. Naik, J.
Case Note:
Property - Admissibility - Sections 12(1) (a), (1) of M.P. Accommodation

Control Act, 1961 - Trial Court decreed suit for eviction in favour of
Respondent against Appellant - Hence, this Appeal - Whether, Court
below had erred in relying on document (Exh. P-11) without deciding
objections about admissibility - Held, question of admissibility was not
decided at all by Trial Judge while rendering decision on merits - Finding
about unavailability of alternative accommodation could not be
examined unless Exh. P-11 was found admissible - Therefore, Courts
below had acted illegally in rendering judgment on basis of Exh. P-11
without deciding objections about admissibility - Appeal allowed in part.
Ratio Decidendi"Question of admissibility of document had to be decided
before deciding suit on merits."
JUDGMENT
Abhay M. Naik, J.
This appeal preferred by the defendants/appellants against the decree for eviction
granted by both the Courts below in concurrent manner has been admitted and
heard on the following substantial questions of law:
(1) Whether the finding of the Court below that plaintiff has proved his bonafide need
is perverse?
(2) Whether the Court below has erred in passing the decree under Section 12(1)(a)
of M.P. Accommodation Control Act, 1961 when the appellant-tenant has deposited
entire rent within one month from deciding the dispute, thereafter he has not
committed any default in depositing the rent?
(3) Whether the Court below has erred in relying on the document (Exh. P-1) without
deciding the objections about admissibility?
Short facts relevant for the purpose of this appeal are that the plaintiff/respondent
instituted a suit against the defendant/appellant for eviction and recovery of arrears
of rent with allegations that the suit shop is comprised in a portion, which was
allotted to the plaintiff in partition between himself, his brothers and father as
revealed in the decree dated 20-3-1975 passed by the Court of ADJ Vidisha. Suit shop
comprised in it was obtained on rent by the defendant on 1-11-1974 from Kesrimalji,
father of the plaintiff, who was owner of it at that time. After the partition, the
plaintiff became its owner and landlord. Plaintiff is running his business in a shop
belonging to his brother Surendra Kumar on rent at the rate of Rs. 250/- per month.
Plaintiff requires bonafide the suit shop to start the business of medicine. Surendra
Kumar has already initiated a suit for eviction against the plaintiff. Moreover, the
present shop of the plaintiff is situated in a lane, whereas the suit shop is situated on
main road. Defendant did not pay rent w.e.f. 1-2-1986 despite notice dated 16-4-1986
issued by registered post. Hence, the suit for eviction under Sections 12(1)(a) and (1)
of the M.P. Accommodation Control Act, 1961.
The defendant refuted the claim of the plaintiff by submitting his written statement.
He inter alia pleaded that the alleged partition was a sham transaction. It was
prepared fictitiously for seeking eviction of defendant from the suit shop. Plaintiff
was occupying the shop belonging to HUF and the proceeding for eviction by his
brother Surendra Kumar against him was again a concocted proceeding. Alleged
partition was also denied. Similarly, alleged need of the plaintiff as well as non-
availability of alternative, suitable, vacant accommodation of non-residential nature
was also denied. It was further pleaded that the defendant was tenant of Kesrimal.
Intimation about the alleged partition was never served upon the defendant. Sons of
the plaintiff, namely, Surendra Kumar and Rajendra Kumar are serving outside
Vidisha and, thus, the plaintiff has no need to start the business in the aforesaid suit
shop. During evidence, certified copy of judgment and decree for partition was
produced, which was objected for want of stamp duty and registration etc. It was
directed that the said objection would be decided subsequently. However, the learned
Trial Judge without deciding the objection, decreed the suit in favour of the plaintiff.
As regards arrears of rent, it was pleaded that the defendant was not in arrears and
the father of the plaintiff used to recover the rent cumulatively within 6 to 8 months.
Defendant had paid advance rent of four months, which was liable to be adjusted
towards rent.
Learned Trial Judge after recording the evidence decreed the suit in favour of the
plaintiff vide judgment and decree dated 20-4-2000. Aggrieved by it, civil appeal was
submitted, which having been dismissed by the impugned judgment and decree,
present appeal is preferred, which is heard on the substantial questions of law, as
already stated above.
Learned Counsel for the parties have been heard at length. Their submissions have
been considered in the light of material on record and the law governing the
situation.
Substantial Questions of Law No. 2:
This substantial question pertains to challenge to the decree for eviction on the
ground of Section 12(1)(a) of the Act. As per the plaint averments, the defendant was
in arrears of rent w.e.f. 1-2-1986. Suit was instituted on 31-10-1986. Though the
defendant pleaded that an amount of four months' rent was deposited as advance,
the same could not be proved as found by the Courts below. At the relevant time, the
term 'dispute' within the meaning of Section 13(2) of the M.P. Accommodation Act as
interpreted by this Court in various judgments included the dispute with respect to
rate of rent as well as quantum thereof. This being so, application of the defendant
under Section 13(2) of the Act was duly entertained and a provisional order was
passed by the Trial Court on 6-5-1991. Defendant was directed to deposit the rent
w.e.f. 1-2-1986 @ Rs. 300/-. Summer vacation of the Civil Court in the year 1991
commenced from 20th May, 1991 and ended with 22nd June, 1991, which was
Saturday. 24th June, 1991 was local holiday at Vidisha as revealed in the order sheet
of Court of II ADJ Vidisha placed on record with I.A. No. 11292/09.
This being so, the deposit of entire arrears of rent on 25-6-1991 by the defendant will
be deemed to be made on reopening day of Civil Court. Accordingly, the deposit
made by the defendant is found valid on account of having been made within one
month. It has been admitted before this Court by the learned Counsel for the
plaintiff/respondent that there is no further default in the matter of deposit. It was so
recorded by this Court on 21-7-2009. Considering it, the defendant/appellant would
be entitled to benefit of Sections 12(3) and 13(5) of the M.P. Accommodation Control
Act. Accordingly, the substantial question of Law No. 2 is decided in favour of the
defendant/appellant giving him benefit of Sections 12(3) and 13(5) of M.P.
Accommodation Control Act.
It is contended by Shri Tomar, learned Senior Counsel that Exh. P-11 is a decree for
partition, which is neither stamped nor registered. Thus, the same being
inadmissible, it could not have been taken into consideration.
Shri K.N. Gupta, learned Senior Counsel countered it by saying that it has been
rightly taken into consideration.
It is argued by Shri Tomar that an objection was raised at the time of tendering the
partition decree with annexures about admissibility. This is so revealed in the
statement of the plaintiff (P.W. 1). As per the note put by the Trial Court, the said
objection was to be decided before the judgment. It is contended that objection was
never decided. Consideration of the documents (Exhs. P-1, P-2 and P-11) without
deciding the objections is totally illegal and without jurisdiction and the findings
based thereon stand vitiated. Relying upon an unreported decision of this Court
dated 20th September, 1995, in F.A. No. 76/1992 Paras Ram and Anr. v. Pooran and
Ors., it is submitted by the learned Senior Counsel Shri Tomar that the matter
deserves to be remitted back to the Trial Court for rendering fresh decision after
deciding the objections.
While countering it, Shri K.N. Gupta, learned Senior Counsel submitted that the
defendant having accepted the plaintiff as landlord is now estopped from challenging
the partition and, therefore, no interference in the impugned judgment on this count
is warranted.
Considered the submissions of both the Counsel.
Case of the plaintiff is that the defendant was inducted into the suit shop by his
father Kesrimal vide rent note dated 1-11-1974. A partition took place as revealed in
the decree dated 25-3-1975 (Exh. P-11). Accordingly, a portion comprising suit shop
was allotted to the plaintiff. Intimation about the partition was given to the
defendant, who pursuant thereto made payment of rent to the plaintiff upto 31-1-
1986. Various counterfoils of rent receipts marked as Exhs. P-12 to P67 (56 in
numbers) are on record containing signatures of the defendant. In all the
counterfoils, plaintiff has been shown as the landlord/owner of the suit premises.
Defendant in his statement on oath has admitted that these counterfoils bear his
signatures. Thus, the partition decree marked as Exh. P-11 is found to have been
acted upon in as much as pursuant thereto the defendant has accepted the rent
receipts showing plaintiff as landlord cum owner of the suit premises. Since the
defendant himself has admitted the plaintiff as landlord of the suit premises,
admissibility/inadmissibility of Exh. P-11 shall not have vitiating effect on the crucial
finding rendered by the Courts below about relationship of landlord and tenant
between plaintiff and defendant.
However, alleged partition decree shall have far reaching impact also on the question
of bona fide need inasmuch as in the absence of partition, the entire property
belonging to Kesrimal would remain accountable while examining the availability of
alternative non-residential accommodation. Acceptance by the defendant about the
landlordship of the plaintiff would at the most enable the plaintiff to sue the
defendant for eviction in his individual name. Since the plaintiff is a member of HUF
of Kesrimal, he otherwise also could have been accepted as landlord. Thus,
acceptance of rend receipts issued in the name of plaintiff as landlord is no proof of
acceptance by the defendant of alleged partition, moreso, when the defendant in
Paragraph 3 has clearly stated that the alleged partition is fictitious and collusive and
is brought into existence for seeking eviction of old tenant. It has been challenged as
a sham transaction. Hon'ble Supreme Court in the case of S.K. Sattar SK. Mohd.
Choudhari v. Gundappa Amabadas Bukate MANU/SC/0225/1997 : (1996) 6 SCC
373, has held that tenant is entitled to take a plea that a partition alleged by the
plaintiff/landlord is a sham transaction and is brought into existence merely in order
to seek eviction. This being so, it is obligatory on the part of the plaintiff/landlord to
prove partition in accordance with law because in the absence of partition entire
property belonging to HUF becomes accountable. I may successfully refer for this
purpose this Court's view in the case of Radhika Prasad v. Gyasi Lal 1967 MPLJ Note
113. Viewing from this angle, it was necessary for the Trial Court to decide the
question of admissibility of Exh. P-11 before deciding the suit on merits.
This Court in F.A. No. 76/92 held in its decision dated 20th September, 1995:
The next contention is important, it is apparent from the record that when the
statement of Puran Singh (P.W. 1) was being recorded and the documents was shown
to the witness, an objection was raised that the agreement was not properly stamped
and stamp duty ought to have been paid on the whole of the amount involved. The
learned Court did not pass an order on this objection and proceeded to record the
evidence reserving the right of objection, the evidence was taken. Thus, it was the
duty of the learned Trial Court to have disposed of the objection of the defendant
with respect to the admissibility to the document on account of insufficiency of
stamp-duty. As it was not done, the learned Court failed in its duty. The case could
not proceed in absence of disposal of this objection, as the document cannot be read
unless the objection is disposed of and it was held that it was admissible. The duty of
the Trial Court is to have disposed of the objection. The document could be read or
taken into evidence if the Court holds that stamp duty was properly paid or if it was
not properly paid, the document is impounded and then the stamp duty is paid. The
finding of the learned Trial Court based upon such a document cannot therefore, be
allowed to stand and must be set aside under these circumstances.
From the aforesaid discussion, it is clear that the learned Trial Judge
shirked from its responsibility to decide the question of admissibility of
Exh. P-11 before deciding the suit on merits, though its admissibility was
objected to expressly and specifically. However, fact remains that the
question of admissibility was not decided at all by the learned Trial
Judge while rendering the decision on merits. Learned Lower Appellate
Court also ignored the aforesaid illegality and rendered the impugned
judgment. Finding about unavailability of alternative accommodation
cannot be examined unless the alleged decree of partition, Exh. P-11 is
found admissible.
Long back the Apex Court in the case of Javer Chand v. Pukhraj Surana
MANU/SC/0036/1961 : AIR 1961 SC 1655, has observed--
Where a question as to the admissibility of a document is raised on the

ground that it has not been stamped, or has not been properly stamped,
it has to be decided then and there when the document is tendered in
evidence.
In view of the aforesaid discussion, substantial question of Law No. 3 is

decided in favour of the appellant. It is held that the Courts below have
acted illegally in rendering the judgment on the basis of Exh. P-11
without deciding the objections about admissibility.
As regards this substantial question, it has already been observed in the preceding
paragraphs that finding about bonafide need could not have been legally recorded by
the Courts below without first deciding the objection about admissibility of the
partition decree contained in Exh. P-11. Question of bonafide need is to be examined
only after decision of admissibility of the said decree because the yardsticks for
examining such need would be different when the partition is held proved and when
the partition is not held proved. However, it is held that the finding about bonafide
need recorded by the Courts below without deciding the objection about
admissibility of Exh. P-11 is not presently sustainable in law. Substantial question of
Law No. 1 is answered accordingly.
In the result, appeal is allowed in part. Defendant having accepted the plaintiff as
landlord as revealed in Exhs. P-12 to P-67 is held a tenant of the plaintiff at the rent
of Rs. 300/- per month. Finding about arrears of rent is also confirmed. However,
giving the benefit of Sections 12(3) and 13(5) of M.P. Accommodation Control Act,
suit for eviction on the ground of Section 12(1)(a) of the Act stands dismissed. As
regards claim for eviction on the ground of bonafide need, the same is to
be re-adjudicated by the Trial Court after deciding the objection about
admissibility of Exh. P-11. No fresh evidence is to be recorded. Learned
Trial Judge will allow both the parties to address on the question of
admissibility of Exh. P-11 and will thereafter pass a fresh decision in
accordance with law within a period of three months from the date of
appearance. Parties to appear in the Trial Court on 20th October, 2009.
Judgment and decree of the Courts below are set aside to the aforesaid
extent.
No order as to costs.
© Manupatra Information Solutions Pvt. Ltd.
MANU/DE/0848/2000
Equivalent Citation: 2000IVAD(Delhi)730, AIR2000Delhi300, 85(2000)DLT478
Regular First Appeal No. 350/99

Appellants:Surender Bala and Ors.

Vs.
Respondent: Sandeep Foam Industries P. Ltd.
Devinder Gupta, A.C.J. and Surinder Kumar Aggarwal, J.
Counsels:
For Appellant/Petitioner/plaintiff: Mr. Vikas Dhawan, Adv
For Respondents/Defendant: Mr. L.R. Gupta, Sr. Adv. and Mr. S.S. Tripathi, Adv.
Case Note:
The case discussed as to when the presumption of the due service could
be raised under Section 27 of the General Clauses Act, 1897 and Section
114(f) of the Evidence Act, 1872 - It was held that the where it was found
that the evidence had not been produced even when it was sent through
the registered post, the said presumption could be raised - It was found
that in regard to the absence of the notice, no one was examined from the
lawyer's office and also, no person was examined from the post office
stating that the notice was delivered at the address of the respondent - It
was further found that the acknowledgement had also not been
presented - Also, the duplication copy of the certificate issued by the
postal authorities with regard to the alleged delivery of the notice was
not proved on record - In this regard, the objections raised by the
defendant showing the method and manner to prove the duplicate copy
of the certificate by the appellant was not decided by the Trial Court -
Hence, it was held under Section 106 of the Transfer of Property Act,
1882, that to keep the objections pending and the deciding the same only
at the time of the final judgment was considered to be inappropriate
ORDER
Surinder Kumar Aggarwal, J.
1. This appeal is directed against judgment and decree dated 27th March, 1999
passed by the court of Mrs. Manju Goel, Additional District Judge, Delhi dismissing
the appellant/plaintiff's suit for possession and damages against the
respondent/defendant holding that the service of notice terminating the tenancy was
not proved.
2. Facts giving rise to this appeal briefly are: that appellants filed a suit against the
respondent for recovery of possession of the premises No. C-772, New Friends
Colony, New Delhi (hereinafter referred to as suit premises) along with its fittings
and fixtures and for recovery of damages, alleging therein that plaintiff No. 1 as the
owner of the suit premises and plaintiff No. 2 as the owner of the fittings and fixtures
provided therein and they had, by two agreements dated 10th August, 1993, leased
out the Ground Floor of the suit premises for purposes on a monthly rent of Rs.
8,000/- and fittings and fixtures attached in the suit premises on a monthly rent of
Rs. 4,000/- for a period of three years; the agreements provided that the lease would
stand automatically terminated on 9th August, 1996 and shall not be extended
thereafter.
3. Appellant No. 1 sent a notice dated 9th December, 1993, under section 106 of the
Transfer of Property Act, 1882 through her lawyer, terminating the tenancy of the
respondent w.e.f. 31.1.94 claiming damages @ Rs.10,000/- per month for use and
occupation of the suit premises after the termination of the lease; and for recovery of
Rs.1,05,000/- towards the damages caused to the premises due to the illegal
construction and additions and alterations in the suit premises by the respondent.
The Respondent filed a written statement contesting the suit disputing and denying
the material averments made in the plaint. The service of notice dated 9th December,
1993, was also denied.
4. On the basis of the pleadings, the trial court framed the following issues :-
1. Is the suit barred by order 2 Rule 2 CPC ?
2. Was the defendant served with a notice of termination of tenancy ? If not, to what
effect ?
3. Was the notice of termination of tenancy valid ?
4. Is the plaintiff entitled to damages for use and occupation ? If so, at what rate and
for what period ?
5. Are the plaintiffs entitled to any amount towards damages allegedly caused to the
suit property by the defendants ?
6. To what relief of any is the plaintiff entitled ?
5. PW-1, Mrs. Rita Roy, appeared as General Attorney for plaintiffs No. 1 and 2, She
proved General Power of Attorney executed by her mother (plaintiff No. 1) and her
sister (plaintiff No. 2) as exhibit PW-1/1 and exhibit PW-1/2; original perpetual lease
of the suit premises exhibit PW-1/3 and original completion certificate exhibit PW-
1/4. She stated that appellants had let out to the respondents ground floor of the suit
premises with the fittings and fixtures to the defendants @ Rs. 8,000/- and Rs.
4,000/- per month respectively, that the tenants had agreed not to make any
additions and alterations in the suit premises without their consent in writing. Since
the lease agreements between the plaintiffs and the respondent sought to be proved
were objected to, the same were marked as 'A' and 'B' respectively, with a note that
question of exhibiting documents will be decided at the later stage. She claimed that
on 28th August, 1993 respondent made extensive additions and alterations causing
damages to the suit property but restricting her claim, for damages to Rs.1,05,000/-
only. She also proved, a copy of the notice to quit given by appellants to the
respondent exhibited PW-1/7; postal receipts vide which the notice was sent exhibit
PW-1/8. Certificate/letter from the Post Office regarding the service of the said
notice on the defendant, exhibit PW-1/9. Mode of proof of this document also was
objected; she claimed that the defendant was unauthorisedly occupying the suit
premises from 1.2.94 and was liable to use and occupation charges pay @
Rs.20,000/- per month for the premises and Rs.10.000/- for the fittings and
fixtures. In the cross examination she admitted the power of attorneys in her favor
exhibits PW-1/2 were executed on 30.6.97 by the plaintiffs and the premises in
dispute were rented out to the respondent out on 10th August, 1993; she denied the
suggestion that the notice dated 9th December, 1993 was not served upon the
defendants.
6. DW-1 Mr. Raj Narain Bagle, Managing Director of the respondent while rebutting
the allegations, stated that "no notice dated 9th December, 1993 was ever served
upon them by the plaintiffs and that the defendant could not receive any notice sent
in the name of "Sandeep Foam Pvt. Ltd." However, he admitted in cross-examination
that the registered office of the defendant is at 45-B/2, site No. 4, District Sahibabad,
U.P. and the address was correctly mentioned at the notice, exhibit PW-1/7. He
denied the suggestion that the notice PW-1/7 was received by the defendant
company.
7. On the basis of the above evidence, trial court vide impugned judgment and decree
held that appellants have failed to prove the service of the notice dated 9th
December, 1993 exhibit PW-1/7 terminating the tenancy on the respondent. Issue
No. 2 was thus decided against appellants and in favor of the respondent. Since
findings on the other issues raised in the suit depended upon the proof of valid
termination tenancy by the said notice, findings on these issues were not recorded by
the trial court and the suit was dismissed by the impugned judgment and decree.
8. We have heard learned counsel for the parties and have been taken through the
record.
9. Learned counsel for the appellant argued that the trial court erred in not raising
presumption with regard to the service of notice merely on the ground that there was
no proof that the envelope containing the letter was not received back undelivered
and there was no postal acknowledgment due proved on record. It was argued that
learned trial court ought to have raised the presumption under section 27 of the
General Clause Act, 1897 and also under section 114(f) of the Evidence Act. Reliance
was placed on Apex Court decisions in Harcharan Singh Vs. Shiv Rani & Ors. AIR
1981 SC 1284; Madan & Co. Vs . Wazir Jaivir Chand MANU/SC/0313/1988 :
AIR1989SC630 , and Shimla Development Authority & Ors. Vs . Santosh Sharma
(Smt.) & Anr. MANU/SC/0416/1997 : (1995)3LLJ290SC .
10. Admittedly, in this case, the tenancy was for a period of more than a year. The
premises were rented out for residential purposes; the lease agreements marked A
and B were not registered Therefore, the tenancy in law had to be construed as the
tenancy on month to month basis. Therefore, the tenancy could be validly terminated
by a 15 days' notice ending with the end of the tenancy month, under section 106 of
the Transfer of Property. There is no dispute in this regard. The question which is
required to be determined in this appeal is as to whether the notice, Ex. PW-1/7
dated 9th December, 1993 stated to have been sent by appellants to the respondent
was served on the respondent and whether a presumption of service of notice could
be validly raised under the facts and circumstances of the case.
11. In order to appreciate the arguments of the parties section 27 of the General
Clauses Act, 1897 is reproduced herein below -
"Meaning of Service by post. Where any Central Act or Regulation made after the
commencement of this Act authorizes or requires any document to be served by post,
whether the expression "serve" or either of the expression "give" or "send" or any
other expression is used then, unless a different intention appears, the service shall
be deemed to be effected by properly addressing, prepaying and posting by registered
post, a letter containing the document, and unless the contrary is proved, to have
been effected at the time at which the letter would be delivered in the ordinary course
of post".
12. There cannot be any dispute about the proposition of law that a presumption of
due service can be raised if the document sought to be served is sent by properly
addressing, prepaying and posting by registered post to the addressee and such
presumption can be raised irrespective of the fact whether an acknowledgement due
is received back from the addressee or not.
13. However, in the present case the facts are quite different. No evidence was
adduced to the effect that the notice, Ex. PW-1/7 was actually sent through registered
post; nobody was examined from the office of the lawyer and even PW-1 did not state
that the notice dated 9th December, 1993 was sent by her or in her presence through
registered post. Admittedly PW- 1. Mrs. Rita Roy, became attorney of the plaintiffs
only on 30.6.97. There fore she could not possibly say anything about the notice sent
on 9th December, 1993. Her evidence in this regard has to be treated as hearsay; no
person from the post office was examined to state that notice was delivered at the
address of the respondent; no acknowledgement due has been produced on record.
Above all even the duplicate copy of the certificate issued by the postal authorities
with regard to the alleged delivery of the notice stated to have been sent vide postal
receipt No. 4564, marked as PW- 1/9 was not proved on record. It was ought to be
proved through PW-1, Mrs. Roy. Method and manner of proof of the same was
objected to on behalf of the respondent. Despite such objection appellant did not
make any effort at any stage of the trial of the suit to get the said document proved in
accordance with law by summoning appropriate witness. In fact, during the course of
arguments it was conceded by learned counsel for the appellant that document
marked as PW-1/9 has not proved in accordance with law and, Therefore, it can be
ignored from consideration. If Ex. PW-1/9 is ignored, in our considered view, there is
hardly any evidence to prove that notice copy of which is Ex. PW-1/7 was in fact ever
sent through registered post or was delivered to the respondent more so when it was
addressed in the wrong name. Admittedly, the correct name of the respondent is
"M/s.Sandeep Foam Industries Private Limited". The notice is purported to have
been sent in the name of "M/s.Sandeep Foam Private Limited". It is true on postal
receipts complete addresses are rarely mentioned. The receipt issued by the postal
authorities only carry the name of the addressee and the post office of destination.
However, on request in writing postal authorities normally issue a certificate
certifying that whether the document sent through registered post was or was not
delivered to the addressee. In this case, such a certificate marked as PW-1/9 was not
proved in accordance with law, in this case.
14. Now coming to cases cited by learned counsel for the appellant. the fact situation
in Harcharan Singh's case (supra) was different. In that case in addition to the
evidence of the party there was evidence of postman (Kund Ram PW2) who was
examined to prove the fact that the registered letter containing the notice was
tendered to the appellant and when he declined to accept the same the postman had
made endorsement in his hand on the envelope "Refused. Returned to the sender".
Under these circumstances it was held that the letter was duly served and delivered.
Similarly in Madan & Co.'s case (supra) in addition to the other evidence there was
categorical evidence of the postman and that there was no servant at the premises
which were locked. The postman had further deposed that the enquiries in the
neighborhood revealed that the tenant was not living in the premises for the last few
months. Under these circumstances, it was observed that the landlord did the best he
could do to serve the tenant. Shimla Development Authority's case (supra) was a case
in which a notice was sent by a Registry of the Supreme Court. Registered envelope
was not received back, Therefore, a presumption was raised under section 27 of the
General Clauses Act, 1897.
15. As observed earlier we would like to reiterate that in the present case
presumption under section 27 of the General Clauses Act, 1897 could have been
raised, had any person from the office of the Advocate been examined to prove copy
of the notice, Ex.PW-1/7 which was sent through registered post and was not
received back and that the acknowledgement due was also not received back.
Otherwise, the plaintiffs could have led some other evidence in this regard to show
that the notice was sent by registered post and the same was not received back. In
this case the evidence adduced is only hearsay. PW-1 was not the attorney of the
plaintiffs when the notice was sent. None of the plaintiffs appeared in witness box.
Certificate of the postal authorities regarding delivery of the notice was also not
proved in accordance with law. If the said certificate is excluded from consideration
there is no proof that any notice or letter was actually sent and if sent that the same
was not returned undelivered.
16. Presumption under section 114(f) of the Evidence Act is on the same footing, as a
presumption under section 27 of the General Clauses Act. Presumption under section
114(f) arises on proof the facts of posting of a letter in the ordinary post, whereas
presumption under section 27 of the Act is with regard to the letter sent through
registered post. There is no evidence of the notice having been sent through courier
also, Therefore the question of raising any presumption under section 114(f) of the
Evidence Act also does not arise.
17. Before we part with the judgment we would like to observe that when appellants
dated 23rd March, 1994 marked as PW-1/9 certifying that the letter sent vide postal
method and manner of proof was objected to by learned counsel for the
defendant/respondent. The objection was not decided by the trial court
immediately. The objection with regard to the proof of such vital
documents could not and ought not to have been kept pending. Had the
objection been decided by the trial court at an early stage of the
proceedings, the plaintiff appellant might have taken recourse to
remedial measures for proving the said document in accordance with
law. Even appellants did not ask that the objection with regard to proof
be decided in the first instance. Keeping the objections pending and
deciding the same only at the time of delivering final judgment, was not
appropriate. Such a practice has to be depreciated.
18. For the foregoing reasons we find no merit in the appeal. The appeal. The same is
dismissed with no order as to costs.
MANU/DE/1352/2001
Equivalent Citation: 96(2002)DLT131, 2002(3)RCR(Civil)239
CR No. 607/2000
Appellants: Shail Kumari

Vs.
Respondent: Saraswati Devi
Counsels:
For Appellant/Petitioner/plaintiff: Ravi Gupta, Adv
For Respondents/Defendant: Mohit Khanna, Adv.
Case Note:
a) The case focused on the maintainability of single revision petition

assailing two orders passed on separate and different subject matter - It
was ruled that generally, order on different subjects, even though
decided by a common order would be a subject matter of challenge in
different revision petition - Further, it was ruled that for the sake of
justice in certain cases, the Court may exercise power under Section 115
of the Civil Procedure Code, 1908
b) The case focused on the proper stage to decide the question of
admissibility of a document with respect to Order 13 Rules 1 and 2 of the
Civil Procedure Code, 1908 - It was ruled that question related to
admissibility of the document would be decided on tendering of the same
in evidence and was duly proved - Further, it was also ruled that it would
not be correct to defer the decision on the question of admissibility of
document at the stage of arguments
c) The case focused on the effect of marking of an exhibit on the
document with respect to Order 13 Rules 1 and 2 of the Civil Procedure
Code, 1908 - It was ruled that the marking of an exhibit would not form a
part of the evidence - It could only be referred for identifying the
document
JUDGMENT
1. ADMIT.
2. On the request of counsel for the parties arguments were heard for final disposal of
the matter.
3. This revision petition raises a simple as well as a question of great importance to the
subordinate courts as to whether in the trial of a civil suit during examination of a
witness when a document is tendered in evidence and it is sought to be proved the
question of admissibility of that document and marking of the exhibit thereon may be
deferred till the stage of hearing of final arguments.
4. The factual matrix of the case is that the petitioner/plaintiff filed a civil suit for
declaration that she was the sole and absolute owner of the disputed wall and also for
grant of permanent injunction restraining the respondent from raising any further
construction in the suit property. On contest by the respondent the trial court framed
the issues. The petitioner did not enter into the witness box herself. She examined her
daughter Ms. Geeta Rohtagi as PW-3 to prove her case. In her statement Ms. Geeta
Rohtagi stated that the petitioner had executed a power of attorney in her favor and she
identified the signatures of the petitioner on that document. The court put 'mark X' on
the document and recorded following observations in the statement:-
"The document is got marked because it has been filed at a belated stage. And there is
not photocopy of same is available on the record. Its admissibility to be decided at the
time of final arguments."
5. PW3 Ms. Geeta Rohtagi further stated that her mother, the petitioner, became owner
of the property by virtue of a registered settlement deed dated 5.9.1950. She has brought
the original deed of settlement, Hindi translation of which is 'marked Y'. Below it the
court recorded the following observations:-
The document has been marked because of the fact that there is not copy of the same
available on record in Urdu language. Though the Ld. Counsel for plaintiff submits that
the translation of the same is on record in Hindi. Whether should be exhibited or not is
to be decided at the stage of final argument.
6. Thereafter the petitioner filed an application under Order 13 Rule 1 & 2 read with
Section 151 CPC seeking permission of the court to produce photocopy of the settlement
deed dated 5.9.1950 in Urdu script and also photocopy of a registered general power of
attorney dated 31.7.1998. She moved another application under Section 151 CPC, inter
alia, praying that the objections with regard to the exhibition of the two documents be
decided at this stage rather than deferring them for decision at the stage of final
argument. She also moved an application for amendment of the issue No. 1. All these
three applications were disposed of by the learned Civil Judge by a common order dated
15.2.2000.
1|Page
7. The petitioner is aggrieved by the order of the learned Civil Judge by which he had
declined to allow her to file the subsequent power of attorney dated 31.7.1998 and has
deferred decision on the question of admissibility of the documents marked 'X' and 'Y'
and marking of exhibits on them at the stage of recording of evidence, to the stage of
hearing of final arguments.
8. At the outset a question was posed to the counsel for the petitioner whether one
revision petition assailing two orders passed on separate and distinct subject matter in a
civil suit is competent. The counsel for the petitioner relying upon the judgment in Nand
Ram v. Karnail Singh and Ors. MANU/PH/0066/1978 : AIR 1978 P&H 100 has argued
that a single petition may be filed for assailing two decisions if made by a common
order. I have considered the judgment cited by him and do not find that it supports his
argument. In the judgment the High Court has exercised its own powers suo motu for
dealing with the second matter observing that it was within the competence of the High
Court to set aside the second order if the second order seem to have been passed either
in excess or without jurisdiction or with material irregularity or illegality in exercise of
the jurisdiction by the trial court. The court also considered the second order because
the application for amendment was really not a serious matter. Therefore, I doubt that a
single revision petition challenging two separate and distinct orders dealing with
different subject matters is maintainable. Ordinarily orders on different subjects, even
though decided by a common order, should be subject matter of challenge in different
revision petitions. To do complete justice in certain cases if the court finds it appropriate
it may exercise its powers given by Section 115 CPC for revising an order on finding that
the second order is the result of an error of jurisdiction, illegality or material irregularity
in exercise of jurisdiction by the trial court. Like the case of nand Ram v. Karnail Singh
and Ors. (supra) second order is not of much consequence. It is that order by which the
trial court had refused permission to the petitioner to file a power of attorney executed
by the petitioner in favor of her daughter Ms. Geeta Rohtagi on 31.7.1998. The petitioner
had executed a power of attorney in the name of her daughter on 29.11.1998. A copy of
this power of attorney has been marked 'X' during the deposition of Ms. Rohtagi. The
trial court dismissed the application of the petitioner for filing the new power of
attorney observing that the old power of attorney and the new power of attorney were
similar and, Therefore, new power of attorney was not relevant. The argument of the
counsel for the petitioner is that the difference between the two power of attorneys is
that the petitioner has ratified all the acts and deeds of her daughter Ms. Rohtagi by a
power of attorney dated 31.7.1998 and in order to avoid any possible objection on any of
the action taken by Ms. Rohtagi on behalf of the petitioner in this suit, this power of
attorney becomes relevant to be filed and taken into consideration. This submission has
not been controverter on behalf of the respondent. therefore in my view of these facts
the trial court committed grave error in not allowing the petitioner to place new power
of attorney dated 31.7.1998 on record and prove it. The respondent could have been
adequately compensated by cost. The order of the trial court disallowing the filing of
power of attorney dated 31.7.1998 is unsustainable in law and should be set aside.
9. Now I pass on to the second question which needs examination in detail.
2|Page
10. The learned Civil Judge has relied upon heavily on the judgment in Sudir
Engineering Co. v. Nitco Roadways Ltd. MANU/DE/0414/1995 : 1995IIAD(Delhi)189 in
deciding that the question of admissibility and marking exhibit on the two documents
shall be considered by him at the stage of hearing of final arguments.
11. The short question here is whether the trial court was justified in postponing the
decisions on the admissibility and marking of exhibit on documents marked 'X' and
marked 'Y' when the statement of the witness Ms. Geeta Rohtagi PW-3 was being
recorded for tendering and proving them. Decision of this Court in Sudir Engineering
Co. (supra), to my view, will not be of much help in deciding this question. The question
of marking exhibit on documents during the recording of the statement of the witness,
who were examined to prove it, arose in a civil suit which was tried by the High Court in
exercise of its original jurisdiction. This Court decided it in the light of the Rules
applicable and practices followed by it while trying original suit. It is clear from the
following observation:
"I have looked into the provisions of Delhi High Court (Original Side) Rules 1967 also.
Chapter XIII Rule 3 provides for documents admitted in evidence being numbered in
such manner as the Court may direct......
.....There is an Original Side Practice Direction (No. 3 of 1974) which vide paras 6 and 7
provides..... A bare reading of this Practice Direction shows that it is not artistically
drafted 'Proved' as used in para 6, is nothing else except used loosely for 'put in'
'produced' or 'tendered'. After all the question of proof is not answered by the Court
during the statement of witnesses simultaneously with production of documents nor
does the Court Master decide upon proof of documents. Para 7 makes it clear that
endorsement by the Court Master of exhibit number on a document is 'admission in
evidence' and not proof of a document...... Every Court is free to regulate its own affairs
within the framework of law. Chapter XIII Rule 3 above said contemplates documents
admitted in evidence being numbered in such manner as the Court may direct. I make it
clear for this case and for all the cases coming up before me in future that the
documents tendered and admitted in evidence shall be marked with numerical serial
numbers, prefixed by Ext. P if filed by plaintiff or petitioner and prefixed by Ex.D if filed
by defendant or respondent."
12. Delhi High Court (Original Side) Rules and the Original Side Practice Directions of
this Court, on many matters, were materially different from the provisions of Punjab
High Court Rules and Orders as applicable to subordinate court in Delhi and the
practice prevailing in the Civil Subordinate Courts.
13. The practice in the Subordinate Civil Courts is that a document, which is tendered by
a party and is admitted in evidence by the court, is marked exhibit number (i) if it is
admitted by the opposite party, or (ii) its formal proof has been dispensed with by the
opposite party affected by it, or (iii) it is certified copies of public document or otherwise
admissible in evidence like certified copies issued under Bankers' Books Evidence Act
1891, or (iv) is 30 years old document or (v) it has been proved by judicial evidence in
accordance with the provisions of Indian Evidence Act. Sometimes the trial court also
3|Page
put exhibit number with note 'objected' by counsel of the plaintiff or defendant (the
affected party) or writing note 'subject to objection' or 'subject to objection of the
counsel' for the party affected by the document. The exhibit number put on a document
signifies its acceptance and admissibility in evidence and also that it has been proved by
judicial evidence or otherwise and that it will be read in evidence. Writing of words
'objected' by opposite party or 'subject to objection' by opposite party indicates that the
question of admissibility is kept open to be decided later or at the time of hearing of
final arguments and the marking of exhibit is only provisional or tentative.
14. In case a document is marked exhibit without an objection from the party which is
affected by that document ordinarily its admissibility cannot be questioned at a later
stage of the proceedings in the suit. But in cases where such document is marked exhibit
without due application of mind in violation of provisions of a statute requiring a
particular mode of proof etc., the opposite party may still show during the hearing of
final arguments that the document is inadmissible in evidence and should be excluded
from consideration because of statutory bar or non-compliance of statutory requirement
about mode of proof or otherwise. For instance a will is required to be proved by
examining at least one of the attesting witnesses in accordance with Section 68 of the
Evidence Act. A document which is in-admissible for want of registration or proper
stamp is in-admissible in evidence, unless use of it is permissible for collateral purposes
or extracts of accounts book without production of books of account and proof that they
were kept in ordinary course of business. Mere putting of exhibits number on these
documents in the absence of their proof in accordance with law does not make them
part of the evidence to be read for deciding the suit. In Sait Tarajee Khimchand and Ors.
v. Yelamarti Satyam and Ors. MANU/SC/0022/1971 : AIR1971SC1865 the Supreme
Court has laid down that mere marking of an exhibit does not dispense with the proof of
the document. All those document which are not proved in the view of the court by
judicial evidence are simply to be marked for the purpose of their identification.
Ordinarily this marking is done as A, B, C, OR X, Y, Z and if they are in a bunch then A1
to A5 etc. On the other hand, the documents which have been tendered in evidence and
have been admitted in evidence and in view of the court they have been proved by
judicial evidence or otherwise and/or admissible in law are marked exhibit number such
as Exhibit P1, P2, if they are documents of the plaintiff and Exhibit D1, D2 if they are
documents of a defendant. Sometimes they are even given exhibit mark writing the
number of witness which proved it like PW1/1 or DW1/1 etc. The distinctive feature of
the two marking is that while the marking exhibit on a document is regarded to be its
admissibility in evidence and its becoming part of evidence until the court at subsequent
stage considered it to have not been proved and legally admitted into evidence in view of
some statutory bar etc., a document on which a simple marking is put does not form
part of the evidence and it could only be referred for identifying that document.
15. Let me now examine the High Court Rules and Orders on this subject. Part-G of
Chapter-1 of Punjab High Court Rules and Orders deals with the documentary evidence.
Rule-1 of this part is relating to production of the documents by the parties. Rule-2 is
about filing of the documents with the list and the preservation of the documents. Rule-
3 requires the court to formally call upon the parties at the first hearing at the time of
the framing of the issues to produce their documents. Late production of the documents
4|Page
by the parties is dealt by Rule-4. Rule-5 requires a note to be made of defective
documents erased or underlined or which present suspicious appearance. Rule-6 says
that the court should be careful to distinguish between mere production of documents
and their "admission in evidence" after being either 'admitted' by the opposite party or
'proved' according to the law. It further provided that when documents are produced by
the parties they are only temporarily placed on the record subject to their being
admitted in evidence in due course and the only documents which are duly admitted in
evidence form part of the record while the rest must be returned to the parties
producing it. It states as under:
"6. Courts should be careful to distinguish between mere production of documents and
their 'admission in evidence' after being either 'admitted' by the opposite party or
'Proved' according to law. When documents are 'produced' by the parties, they are only
temporarily placed on the record subject to their being 'admitted in evidence' in due
course. Only documents which are duly 'admitted in evidence' form a part of the record,
while the rest must be, returned to the parties producing them (Order XIII, Rule 7).
16. Rule-7 deals with the tender of the documents in evidence. It provides that
document which the party intended to use as evidence against his opponent must be
formally tendered by him in the course of proving his case. If a document has been
placed on the record it may be referred to for the purpose and if it is not on the record it
must be called to be produced by the person in whose custody it was. The procedure to
be followed when the documents were admitted by the opposite party has been given in
Rule-8. It says that if the opposite party does not object to the documents being
admitted in evidence, an endorsement to that fact must be made by the Judge with his
own hand and if the document is not such as is forbidden by the Legislature to be used
as evidence, the Judge will admit it, read it or so much of it as the parties may desire to
be read. When the opposite party does not admit the document, the procedure to be
followed is given in Rule-9. It says if the opposite party objects to a document being
admitted in evidence, two questions commonly arise: first is whether the document is
authentic and second is whether it is legally admissible in evidence against the party
who is sought to be affected by it. The latter question in general, is a matter of argument
only; but the first must, as a rule, be supported by such testimony as the party can
adduce. It is followed by Rule 10 which says that all legal objections as to the
admissibility of a document should, as far as possible, be promptly disposed of, and the
court should carefully note the objection raised and the decision thereon. It further
provided that the court is bound to consider, suo-motu, whether any document sought
to be proved is relevant and whether there is any legal objection to its admissibility.
There may be certain classes of documents which are wholly inadmissible in evidence
for certain purpose owing to the defects such as want of registration etc. and there may
be others in which the defect could be cured, for example by payment of penalty in case
of certain unstamped or insufficiently stamped documents. To be precise it is
reproduced below:-
"All legal objections as to the admissibility of a document should, as far as possible, be

promptly disposed of, and the Court should carefully note the objection raised and the
decision thereon.
5|Page
The Court is also bound to consider, suo motu, whether any document sought to be
proved is relevant and whether there is any legal objection to its admissibility. There are
certain classes of documents which are wholly inadmissible in evidence for certain
purpose owing to defects such as want of registration, etc. There are others in which the
defect can be cured, e.g., by payment of penalty in the case of certain unstamped or
insufficiently stamped documents."
(Emphasis supplied)
17. Rule 11 is about the mode of proof. It says that the general rule is that the document
should be proved by primary evidence i.e. document itself should be produced in
original and proved. If secondary evidence is permitted, the court should see that the
conditions under which such evidence can be let in, exist. If an old document is sought
to be proved under Section 90, the court should satisfy by every reasonable means that
it comes from proper custody. Certain points which the courts should bear in mind
when the signature attestation of the document is sought to be proved are mentioned in
Rule 12. Rule 14 is regarding endorsements on the documents admitted in evidence.
Being relevant for the controversy, it is reproduced below:-
"Every document 'admitted in evidence' must be endorsed and signed or initialled by the
Judge in the manner required by Order XIII, Rule 4 and marked with an Exhibit
number. Documents produced by the plaintiff may be conveniently marked as Ex. P.1,
Ex. P.2, etc., - while those produced by the defendant as Ex. D1, D.2, D.3, etc. To ensure
strict compliance with the provisions or Order XIII, Rule 4 (...the importance of which
has been emphasized by their Lordships of the Privy Council, on more than one occasion
each Civil Court has been supplied with a rubber stamp in the following form:
Suit No......of .....19..... Title .. plaintiff ..... versus .... Defendant Produced by ..... On
the ..... day of ..... 19..... Nature of document..... Stamp duty paid Rs. ...is (is not) correct.
Admitted as Exhibit No...... On the ..... day of ..... 19.....
Judge
The entries in the above form should be filed in at the time when the document is
admitted in evidence under the signature of the Judge. This precaution is necessary to
prevent any substitution or tampering with the document. Details as to the nature of the
document and the stamp duty paid upon it are required to be entered in order that
Courts may not neglect he duties imposed on them by Section 33 of the Indian Stamp
Act, 1899. District Judges should see that all Court subordinate to them are supplied
with these stamps.
The above rule also applies to documents produced during the course of an enquiry
made on remand by an appellate court.
The endorsement and stamp will show that the document is proved. It is to be
remembered that the word "proved" used in the context here means "that judicial
evidence has been led about it", and does not imply "proof" in an absolute sense."
6|Page
18. There are other rules also which deal with how the endorsement is to be made at the
documents which are not admitted in evidence, the documents which are required to be
placed in strong cover, the consequences of not properly admitting documents etc.
However Rule 18 which has relevance to the controversy raised is necessary to be
noticed. It is as follows:-
"It is the duty of the Court, before hearing arguments, finally to revise the record which
is to form the basis of its judgment and to see that it contains all that has been formally
admitted in evidence and nothing else. Any papers still found with the file, which have
not been admitted in evidence, should be returned to the parties.
Appellate Courts should examine the records of cases coming before them on appeal
with a view to satisfying themselves that subordinate Courts have complied with the
provisions of the law and instructions of the High Court on the subject, and should take
serious notice of the matter when it appears that any Court has failed to do so."
(Emphasis supplied)
19. A careful reading of these rules showed that the trial court was duty bound to
consider the question of admissibility and the proof of the document which were
tendered or sought to be proved by judicial evidence promptly and not defer this
decision as to the admissibility or mode of proof, if objection raised, till the final
arguments are heard. At the stage of final hearing no document should remain on file
which has not been admitted to evidence. Rule 10 and 18 reproduced above clearly
enjoins on a court that question of admissibility should not be deferred but should be
decided immediately as and when it is raised and should be decided before the date of
hearing of final arguments.
20. In Baldeo Sahai v. Ram Chander and Ors. AIR (1931) Lah 546 it was held:
"There are two stages relating to documents. One is the stage when all the documents on
which the parties rely are filed by them in Court. The next stage is when the documents
are proved and formally tendered in evidence. It is at this later stage that the Court has
to decide whether they should be admitted or rejected. If they are admitted and proved
then the seal of the Court is put on them giving certain details laid down by law,
otherwise the documents are returned to the party who produced them with an
endorsement therein to that effect."
(emphasis supplied)
21. The Division Bench in this case clearly laid emphasis for deciding the question
whether document is admitted or rejected when document is tendered in evidence and
is sought to be proved by judicial evidence.
22. This question was dealt with by the Supreme Court in a slightly different context in
Javer Chand and Ors. v. Pukhraj Surana, MANU/SC/0036/1961 : [1962]2SCR333 . The
Apex Court was dealing with a question raised as to the admissibility of document on
7|Page
the ground that it has not been stamped or has not been properly stamped and the
impact of Section 36 of Stamp Act. It was observed:
"....Where a question as to the admissibility of a document is raised on the ground that it

has not been stamped, or has not been properly stamped it has to be decided then and
there when the document is tendered in evidence. Once the Court rightly or wrongly,
decides to admit the document in evidence, so far as the parties are concerned the
matter is closed. Section 35 is in the nature of a penal provision and has far-reaching
effects. Parties to a litigation, where such a controversy is raised, have to be circumspect
and the party challenging the admissibility of the document has to be alert to see that
the document is not admitted in evidence by the Court. The Court has to judicially
determine the matter as soon as the document is tendered in evidence and before it is
marked as an exhibit in the case..... It is not, Therefore, one of those cases where a
document has been advertently admitted, without the Court applying its mind to the
question of its admissibility. Once a document has been marked as an exhibit in the case
and the trial has proceeded all along on the footing that the document was an exhibit in
the case and has been used by the parties in examination and cross-examination of their
witnesses, Section 36 of the Stamp Act comes into operation. Once a document has been
admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a
Court of Appeal or revision to go behind that order. Such an order is not one of those
judicial orders which are liable to be reviewed or revised by the same Court or a Court of
superior jurisdiction."
23. The argument of the counsel for the respondent is that the observations of the
learned Civil Judge which were made during the recording of the statement of PW-3
Geeta Rohtagi for deferring the consideration of admissibility and marking of exhibit at
a later stage was not challenged and it had become final. The question whether the
document is admissible in evidence or it has been proved or not and required to be put
an exhibit mark may be raised by the party at any time after the document has been
tendered and judicial evidence to prove it has been led. In fact, this situation will not
arise if this matter is dealt with and it is disposed of by the trial court promptly. In
certain cases where the situation so warranted, indeed, the question may be deferred to
be considered at the final stage and or when the parties so request the court.
24. The question of admissibility of the document has to be decided at the

Deferring a decision on the question of admissibility of the document and
making it part of the evidence by marking exhibit mark on it may lead to
complication and in many cases result in grave injustice to the party, who
tenders the document. If the question of admissibility of the document and
making it part of the evidence by marking exhibit mark on it may lead to
complication and in many cases result in grave injustice to the party, who
tenders the document. If the question of admissibility of the document is
deferred to be decided at the time of hearing of final arguments in many
case a party may be deprived of an opportunity to cure a curable defect or
supply the deficiency. It is for this very reason that the High Court Rules and Order
discussed above lay emphasis on prompt disposal of the objection raised to the
8|Page
admissibility of the document and mode of proof. It may work great injustice in some
cases if left undecided till the arguments are heard for disposal of the suit. The
objection to the admissibility and the proof of the document should
ordinarily be not kept pending and this should be decided promptly as and
when they are raised, particularly if raised during the recording of the
evidence of a witness who is called to prove it. But the objection certainly be
disposed of before the date is fixed for hearing of final arguments. The view
taken by this Court finds support from the judgment of a Division Bench of
this court reported as Sunder Bala and Anr. v. Sandeep Foam Industries
Pvt. Ltd. MANU/DE/0848/2000 : AIR2000Delhi300 :-
"before we part with the judgment we would like to observe that when appellants
dated 23rd March, 1994 marked as PW 1/9 certifying that the letter sent vide postal
method and manner of proof was objected to by learned Counsel for the
defendant/respondent. The objection was not decided by the Trial Court immediately.
The objection with regard to the proof of such vital documents could not and ought not
to have been kept pending. Had the objection been decided by the Trial Court at an early
stage of the proceedings, the plaintiff-appellant might have taken recourse to remedial
measures for proving the said document in accordance with law. Even appellants did not
ask that the objection with regard to proof be decided in the first instance. Keeping the
objections pending and deciding the same only at the time of delivering final judgment,
was not appropriate. Such a practice has to be depreciated.
25. Having regard to the above discussion and the judgment of the Division Bench cited
above. I am of the considered view that the learned Civil Judge committed material
irregularity in the exercise of jurisdiction in not deciding the question of admissibility of
the document marked 'X' and 'Y' and of marking of exhibit mark on them immediately
when the dispute was raised or after at least the application was moved by the petitioner
making this request.
26. For the reason stated above, the petition is allowed. The order of the trial court by
which it has deferred the consideration of the question of admissibility of the documents
and marking of exhibit on the documents marked 'X' and marked 'Y' to the stage of final
argument is set aside. The trial court is directed to consider this question at an early
date. The filing of power of attorney of the respondent dated 31.7.1998 is allowed subject
to payment of Rs. 1000/- as costs. But in the circumstances of the case, the parties are
left to bear their own costs.
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10 | P a g e

Objection Not Decided in Final Judgment

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Objection Not Decided in Final Judgment

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A document admitted in evidence during trial under objection that was stated to be

I. It was incumbent upon the learned trial Court to decide the

II. Since the objections as to the admissibility of documents

V. The courts below had erred in relying on document without

VI. The question of admissibility of the document has to be decided at the

VIII. However, mere admission of a document in evidence does not amount

Before Syed Iftikhar Hussain Shah, J

Haji PEERAN DITTA and others----Petitioners

SHAMS-UD-DIN and others----Respondents

Before Raja Muhammad Khurshid, J

PROVINCE OF PUNJAB through Collector, District Gujrat and 2

MUHAMMAD BASHIR and another---Respondents

Before Ch. Ijaz Ahmad, J

FAZAL NOOR and others---Respondents

Equivalent Citation: 2010(3)MPHT38, 2010(1)MPLJ135, 2010(1)RCR(Rent)155

IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)

Decided On: 23.09.2009

Appellants: Mahesh Kumar Goyal and Ors.

Property - Admissibility - Sections 12(1) (a), (1) of M.P. Accommodation

Where a question as to the admissibility of a document is raised on the

In view of the aforesaid discussion, substantial question of Law No. 3 is

Substantial Question of Law No. 1:

Equivalent Citation: 96(2002)DLT131, 2002(3)RCR(Civil)239

IN THE HIGH COURT OF DELHI

Decided On: 02.08.2001

Appellants: Shail Kumari

Mahmood Ali Khan, J.

24. The question of admissibility of the document has to be decided at the

Equivalent Citation: 2000IVAD(Delhi)730, AIR2000Delhi300, 85(2000)DLT478

IN THE HIGH COURT OF DELHI

Regular First Appeal No. 350/99

Decided On: 16.03.2000

Appellants:Surender Bala and Ors.

Devinder Gupta, A.C.J. and Surinder Kumar Aggarwal, J.

Equivalent Citation: 2015(6)ABR822, 2015XII AD (S.C.) 29, 2016(1)ALD19(SC),

IN THE SUPREME COURT OF INDIA

Decided On: 06.11.2015

Appellants: Rakesh Mohindra

M.Y. Eqbal and C. Nagappan, JJ.

Equivalent Citation : (2003 )8SCC 752

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 10585 of 1996

Decided On: 08.10.2003

Appellants:R.V.E. Venkatachala Gounder

Ordinarily an objection to the admissibility of evidence should be taken when it is

The objections as to admissibility of documents in evidence may be classified into

Before Ch. Ijaz Ahmad, J

FAZAL NOOR and others---Respondents

Before Raja Muhammad Khurshid, J

PROVINCE OF PUNJAB through Collector, District Gujrat and 2

MUHAMMAD BASHIR and another---Respondents

Before Syed Iftikhar Hussain Shah, J

Haji PEERAN DITTA and others----Petitioners

SHAMS-UD-DIN and others----Respondents

Equivalent Citation: 2010(3)MPHT38, 2010(1)MPLJ135, 2010(1)RCR(Rent)155

IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)

Decided On: 23.09.2009

Appellants: Mahesh Kumar Goyal and Ors.

Property - Admissibility - Sections 12(1) (a), (1) of M.P. Accommodation

Substantial Questions of Law No. 2:

Substantial Question of Law No. 3:

Considered the submissions of both the Counsel.

Where a question as to the admissibility of a document is raised on the