HONOURABLE SRI JUSTICE A.SANTHOSH REDDY
C.R.P.No.2100 OF 2019
ORDER:
This civil revision petition is directed to set aside the order dated 01.02.20219 in I.A.No.892 of 2018 in O.S.No.787 of 2012 on the file of XIII Additional Chief Judge (Fast Track Court), City Civil Court, Hyderabad.
2. Heard the learned counsel for the petitioners and learned counsel for the respondent Nos.1, 2, 3 and 5. Perused the record.
3. The petitioner-plaintiff filed suit for recovery of an amount of Rs.47,12,682/- along with interest against the respondents- defendants. While so, the trial was in progress in the suit, respondent Nos.1 to 3-defendant Nos.1 to 3 filed application in I.A.No.892 of 2018 under Section 65 of the Indian Evidence Act, 1872 to receive the documents;- Xerox copies of debit, credit notes dated 20.10.2010 and undertaking, dated 21.10.2010, as secondary evidence and to mark the same as exhibits. The petitioners filed counter affidavit resisting the same. However, on consideration of the material on record, the trial Court allowed the application and passed the following order:
2
" 1. This is the petition filed under Section 65 of the Indian Evidence Act praying the Court to receive the documents as secondary evidence.
2. The petitioner contended that they entered into terms with the plaintiffs and they exchanged debit and credit notes and entered into memorandum of understanding and now the same was in dispute. The petitioner further averred that the suit is filed on the basis of debit and credit notes and memo of understanding dated 20.10.2010 but those documents were not marked. The petitioner herein bonafide cross examined the witnesses of the plaintiff and he refused. Hence, those documents are necessary to mark.
3. Defendant No.4 and 5 reported no counter and plaintiff has not filed counter inspite of several adjournments. Hence, treated as no counter.
4. Heard, perused the record.
5. Admittedly, the documents sought by the petitioner herein are filed along with the suit and existence of originals of those documents are not disputed. Therefore, those documents can be received under Section 65 of Indian Evidence Act.
IN THE RESULT, petition is allowed."
4. Learned counsel for the petitioners submits that the counter affidavit was filed by the petitioners on 22.09.2018, but the trial Court erroneously passed the impugned order by observing that the petitioners have not filed counter-affidavit, inspite of several adjournments and treated as 'no counter'. He further submits that the trial Court has not decided the application on merits. He prays to set aside the impugned order. 3
5. Per contra, learned counsel for the respondents submits that the petitioners herein have claimed the benefit of payment of Rs.1,05,82,934/- towards full and final settlement as against the claim of Rs.1,38,38,041/- from respondent Nos.1 to 3 and again filed the present suit for recovery of the amount. He further submits that the petitioners derived benefit from the documents, which was sought to be received as secondary evidence. The petitioners having received the benefit estopped from resisting to receive the documents on record. He has placed reliance on the judgment of Union of India v. N.Murugesan Etc.1
6. Thus, on hearing the submissions of both the counsel on record, the point for consideration is; whether the impugned order is sustainable in law?
7. A perusal of the record would disclose that though the counter affidavit was filed by the petitioners on 22.09.2018 resisting the said application, the trial Court has stated that inspite of granting several adjournments, the petitioners have not filed counter affidavit. Thus, it is evident that the trial Court has not 1 2022 2 SCC 25 4 considered the objections raised by the petitioners in their counter affidavit and has not decided the application on merits.
8. In Union of India's case (1 supra) the Apex Court held at para No.26 as under:
APPROBATE AND REPROBATE:
" 26. These phrases are borrowed from the Scott's law. They would only mean that no party can be allowed to accept and reject the same thing, and thus one cannot blow hot and cold. The principle behind the doctrine of election is inbuilt in the concept of approbate and reprobate. Once again, it is a principle of equity coming under the contours of common law. Therefore, he who knows that if he objects to an instrument, he will not get the benefit he wants cannot be allowed to do so while enjoying the fruits. One cannot take advantage of one part while rejecting the rest. A person cannot be allowed to have the benefit of an instrument while questioning the same. Such a party either has to affirm or disaffirm the transaction. This principle has to be applied with more vigour as a common law principle, if such a party actually enjoys the one part fully and on near completion of the said enjoyment, thereafter questions the other part. An element of fair play is inbuilt in this principle. It is also a species of estoppel dealing with the conduct of a party. We have already dealt with the provisions of the Contract Act concerning the conduct of a party, and his presumption of knowledge while confirming an offer through his acceptance unconditionally."
9. The petitioners have filed counter-affidavit resisting the claim of respondent Nos.1 to 3 to receive the subject documents as secondary evidence. However, respondent Nos.1 to 3 in their affidavit filed along with the application clearly stated that the petitioners herein along with suit filed Xerox copy of debit and 5 credit notes and undertaking dated 21.10.2020, but the same were not marked in their evidence. However, respondent No.1 in his cross-examination disputed the correctness of the said settlement. Respondent Nos.1 to 3 further stated that originals of the subject documents were not traceable in their office. As such, they are constrained to file the copies of the subject documents and sought leave of the Court to lead secondary evidence.
10. It is not in dispute that it is evident from the material papers filed at page No.44 of this revision, the petitioners shown the subject documents at list of documents para at Sl.Nos.61, 62 and 63 along with the plaint filed by them in the main suit. Since the petitioners have not relied on the said documents and adduced evidence, the respondents filed the present application in order to prove the case that there was understanding between the parties on the debit and credit note and intended to rely on the subject documents.
11. Learned counsel for the respondents issued notice on 13.08.2018 to the petitioners to produce the debit and credit note as well as original undertaking bond executed by them and others 6 on non-judicial stamp paper to enable respondent Nos.1 to 3 to mark them as exhibits. The said documents were referred to by the petitioners in the plaint pleadings as well as filed along with other documents along with plaint.
12. Though, the trial Court has not considered the objections raised by the petitioners in their counter affidavit and passed the impugned order in cryptic manner, but, having regard to the fact that the suit pertains to the year of 2012, I am inclined to dispose of the revision petition on merits, instead of remanding the matter to the trial Court for decision on merits.
In the judgment of Union of India's case relied on by the learned counsel for the respondents, the principle of approbate and reprobate as enunciated by the Apex Court is rightly applicable to the facts and circumstances of the present case. In the instant case, the petitioners are estopped from denying the validity or binding effect of the subject documents, which are received as per the impugned order. As the subject documents were referred to by the petitioners in the plaint pleadings as well as list of the documents enclosed along with the plaint, they cannot be permitted to 7 approbate and reprobate now denying the admission of the same in evidence.
13. For the foregoing reasons, I am of the view that the impugned order of the trial Court in allowing the application for receiving the subject documents as secondary evidence needs no interference.
14. In the result, the civil revision petition is dismissed. There shall be no order as to costs. Pending miscellaneous petitions, if any, stand closed.
_______________________ A.SANTHOSH REDDY, J 04.01.2023 Nvl