Malekben Mahmmadbhaikeshwani vs Hajibhai Mahmadbhia Keshwani ...
2021 Latest Caselaw 2934 Guj

       C/SCA/13703/2018                               JUDGMENT




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/SPECIAL CIVIL APPLICATION NO. 13703 of 2018

FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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     Whether Reporters of Local Papers may be allowed
 1                                                               YES
     to see the judgment ?

 2 To be referred to the Reporter or not ?                       YES

     Whether their Lordships wish to see the fair copy
 3                                                               NO
     of the judgment ?
   Whether this case involves a substantial question
 4 of law as to the interpretation of the Constitution           NO
   of India or any order made thereunder ?

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             MALEKBEN MAHMMADBHAIKESHWANI
                              Versus
         HAJIBHAI MAHMADBHIA KESHWANI WADIVALA
=======================================
Appearance:
S M KIKANI(7596) for the Petitioner(s) No. 1
DELETED(20) for the Respondent(s) No. 5
MR UMANG R VYAS(5595) for the Respondent(s) No. 1,2,3,4,6
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CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                          Date : 20/02/2021

                          ORAL JUDGMENT

1. This petition under Articles 226 and 227 of the Constitution of India is filed by the petitioner - original plaintiff seeking to quash and set aside the order dated 10.10.2017, passed by the learned Principal Senior Civil Judge, Mahuva, District: Bhavnagar, below application exh. 55 in Special Civil Suit No. 138 of 2012 /

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22 of 2017, whereby, the learned trial Judge has rejected the said application exh. 55 which was filed by the present petitioner - plaintiff with a specific prayer to forward the document, exh. 35 (disputed document in the suit) to the handwriting expert for its verification and report.

2. Rule. Learned advocate Mr. Umang Vyas waives service for the respondents. With the consent of the learned advocates for the respective parties, the matter is taken up for final hearing today.

3. Heard, learned advocate Mr. S. M. Kikani for the petitioner and learned advocate Mr. Umang Vyas for the respondents.

3.1 The learned advocate for the petitioner - plaintiff has, vehemently and fervently argued that the petitioner - plaintiff has filed aforesaid suit for declaration qua the suit property. It is submitted that during the pendency of the said suit, the petitioner - plaintiff preferred an application exh. 55 on 03.02.2017 with a specific prayer to forward the document, exh. 35 (disputed document in the suit) to the handwriting expert for its verification and report. It is submitted that the petitioner - plaintiff has neither signed and/or executed any document declaring waiving of her right in the property shown in Entry No. 807, nor has issued any such document declaring waiver of her right in the suit property being land bearing revenue survey Nos. 145 paiki and 116 paiki. It is submitted that on the basis of such documents, land shown in Partition Entry No. 1313, Account (Khata) No. 17 is distributed amongst her four brothers. It is submitted that she has never waived her right in the property and the document is disputed and hence, she preferred the

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aforesaid application exh. 55 before the trial Court concerned under O.26 R.10A of the Civil Procedure Code, 1908 (CPC), however, the learned trial Judge rejected the said application on two counts, firstly, that the document in question is lying with the revenue authority and what is produced before the the (trial) Court is only xerox copy of the same, and secondly, in the given circumstance, the plaintiff has failed to show any provision of law to call for the report of the handwriting expert on the basis of a xerox copy of a document.

3.2 In this regard, the learned advocate for the petitioner drew attention of the Court to O.13 R.10 of the CPC, which reads thus:

"10. Court may send for papers from its own records or from other Courts.--(1) The Court may of its own motion, and may in its discretion upon the application of any of the parties to a suit, send for, either from its own records or from any other Court, the record of any other suit or proceeding, and inspect the same.

(2) Every application made under this rule shall (unless the Court otherwise directs) be supported by an affidavit showing how the record is material to the suit in which the application is made, and that the applicant cannot without unreasonable delay or expense obtain a duly authenticated copy of the record or of such portion thereof as the applicant requires, or that the production of the original is necessary for the purposes of justice.

(3) Nothing contained in this rule shall be deemed to enable the Court to use in evidence any document which under the law of evidence would be inadmissible in the suit."

3.3 Relying upon the aforesaid O.13 R.10 CPC, the learned advocate for the petitioner distressed his argument that even a Court can suo motu call for such document, in form of production, so as to meet the ends of justice as well as to inspect such

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document and therefore, the learned trial Court has committed serious error in not observing such provision of law.

3.4 The learned advocate for the petitioner, further, relied upon O.16 R.6 of the CPC and submitted that any person can be summoned to produce a document and accordingly, submitted that the learned trial Judge has failed to appreciate the said provision of law.

3.5 In support of his submissions, the learned advocate for the petitioner relied upon following decisions rendered by Rajasthan High Court:

i) Snehlata v. Parasmal, (1994) DNJ 74, more particularly, paragraphs 2 and 7 thereof;

ii) Jai Singh v. Jagdish and Another, (2002) 2 DNJ 838, more particularly, paragraphs 12, 14, 17 and 18 thereof.

3.6 Thus, making above submissions, it is urged that the petition may be allowed and the impugned order may be set aside.

4. Per contra, learned advocate Mr. Vyas for the respondents, at all vehemence at his command, submitted that the aforesaid entry was made prior to about 25 years of filing of the suit and none has raised any objection to that. Further, no provision of law, as is asserted herein, was shown before the learned trial Court and no application is made upon the so-called provisions of law before the trial Court. He, further submitted that the learned trial Judge has rightly questioned and observed as to how expert opinion can be sought for or given on the basis of a copy of the

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document. It is also submitted that without there being any prayer to that effect, the trial Court cannot go beyond what is prayed for. In support of his submissions, the learned advocate for the respondents relied upon a decision of the Hon'ble Apex Court in Siddu Venkappa Devadiga v. Rangu S. Devadiga, 1977 (0) AIJEL-SC 26634 and submitted that decision of the case cannot be based outside the plea of parties. Making such submissions, eventually it is prayed that present petition may be dismissed with cost being bereft of any merits.

5. Regard being had to the submissions advanced and considering the facts and circumstances of the case, the issue in the present writ petition, which lies in a very narrow compass that is to say, the petitioner who is original plaintiff in Special Civil Suit No. 138 of 2012, which is filed for declaration and permanent injunction, preferred an application exh. 55 with a specific prayer to forward the document, exh. 35 (disputed document in the suit) to the handwriting expert for its verification and report. The said document exh. 35 which consists disputed signature of the petitioner - plaintiff goes to the root of the controversy between the parties. It is the say of the petitioner that the petitioner has not signed the said document by which, right to share in the ancestral property stated to have been waived by the petitioner - plaintiff. It is this document, which was prayed to be forwarded to the handwriting expert and for its verification and report. Indisputably, the said document is lying on the record of the suit in question in the form of 'xerox copy' and original of which, is stated to have been lying with the concerned revenue authority. It is this document (xerox copy of exh. 35), which the petitioner - plaintiff had sought to be referred to the handwriting expert and his report.

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5.1 In this regard, it would be apt to refer to sections 63, 65, 74 and 77 of the Evidence Act, 1872, which read thus:

"63. Secondary evidence. -- Secondary evidence means and includes --

(1) certified copies given under the provisions hereinafter contained;

(2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;

(3) copies made from or compared with the original;

(4) counterparts of documents as against the parties who did not execute them;

(5) oral accounts of the contents of a document given by some person who has himself seen it.

Illustrations

(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.

(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.

(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.

(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine- copy of the original, is secondary evidence of the original. "

"65. Cases in which secondary evidence relating to documents may be given.-- Secondary evidence may be given of the existence, condition or contents of a document

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in the following cases: --

(a) when the original is shown or appears to be in the possession or power --

of the person against whom the document is sought to be proved,

of any person out of reach of, or not subject to, the process of the Court, or

of any person legally bound to produce it,

and when, after the notice mentioned in section 66, such person does not produce it;

(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;

(d) when the original is of such a nature as not to be easily movable;

(e) when the original is a public document within the meaning of section 74;

(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in 1[India] to be given in evidence;

(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court and the fact to be proved is the general result of the whole collection.

In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.

In case (b), the written admission is admissible.

In case (e) or (f), a certified copy of the document, but no

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other kind of secondary evidence, is admissible.

In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents. "

"74. Public documents. -- The following documents are public documents: --

(1) documents forming the acts or records of the acts --

(I) of the sovereign authority,

(ii) of official bodies and tribunals, and

(iii) of public officers, legislative, judicial and executive, 3[of any part of India or of the Commonwealth], or of a foreign country;

(2) public records kept 4[in any State] of private documents. "

"77. Proof of documents by production of certified copies. -- Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies."

5.2 Thus, considering section 63 of the Evidence Act, the document in question is, undoubtedly, a document which falls under the criteria of secondary evidence as it being a copy of original. Further, the original of this document is stated to have been lying with the concerned revenue authority and accordingly, as per the tenor of section 74(2), it is a public document and by virtue of section 77, to prove the contents of a public document, it may be proved by certified copy of the same.

5.3 Thus, considering the aforesaid provisions of law vis-a-vis the facts and circumstances of the case on hand, it appears that the copy of the document produced on the records of the suit, which admittedly is not a certified copy, is not admissible in the

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evidence. The petitioner - plaintiff has, requested the said document (exh. 35) be referred to the handwriting expert, which, cannot be acceded to in view of settle position of law.

5.4 If the decisions: i) Snehlata v. Parasmal and ii) Jai Singh v. Jagdish and Another (supra), upon which the learned advocate for the petitioner - plaintiff has placed reliance are perused, they do not apply to the facts of the present case inasmuch as the facts are different. In the case of Snehlata v. Parasmal (supra), common order of the learned Court below was challenged by which, applications under O.13 R.10 of the CPC for calling the records relating to the income tax assessments of the defendant- non-petitioner from the Income Tax Office, Jodhpur were dismissed on the ground that a document can be summoned under O.13 R.10 of the CPC from a Court and not from an office. The Court, while allowing such revision petitions, has observed in paragraph 7 that, 'when the defendant did not choose to file reply to the application in any suit, the learned Additional District Judge No. 3, Jodhpur should have allowed the application and summoned the desired record from the Income-tax Officer, Jodhpur. He has committed material irregularity in the exercise of his jurisdiction while rejecting the applications. It would be better that the plaintiffs may move applications under Order 11 Rule 12, CPC for the discovery of the required documents in the suits or may serve interrogations under Order 11 Rule 1, CPC upon the defendant with the prior permission of the trial Court. If the defendant Parasmal denies the filing of copies of the balance- sheet under his signature showing the plaintiffs' deposits plaintiffs' khatas, the relevant record of the Income-tax Officer, Jodhpur may be called for'. Here, in the case on hand, the application preferred by the present petitioner - plaintiff was

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under O.26 R.10A of the CPC with a specific prayer to forward the document, exh. 35 (disputed document in the suit) to the handwriting expert for its verification and report. There is no prayer or plea to summon such a document from the concerned authority. And, accordingly, in the considered opinion of this Court, this decision would be of no avail to the petitioner - plaintiff. This Court may reiterate that in the aforesaid case (Snehlata v. Parasmal), the High Court has reserved liberty in favour of the plaintiffs to move appropriate applications under the provisions as enumerated therein.

5.5 So far as case of Jai Singh v. Jagdish and Another (supra) is concerned, in the said decision an order passed below an application under O.13 R.10 of the CPC was the subject matter of challenge. In that case, the plaintiff had moved an application under O.13 R.10 of the CPC and prayed that a partnership deed executed between the defendants dated 28.03.1986 may be summoned from the Income-tax department, upon which, the learned trial Court allowed the application of the plaintiff-non- petitioner by an order dated 30.03.2001 against which, the petitioner moved the revision petition before the High Court. At the cost of repetition, it may be observed that in the case on hand, the application preferred by the present petitioner - plaintiff was under O.26 R.10A of the CPC with a specific prayer to forward the document, exh. 35 (disputed document in the suit) to the handwriting expert for its verification and report. There is no prayer or plea to summon such a document from the concerned authority. Thus, this decision also would not be of any help to the petitioner - plaintiff.

5.6 The Court has also gone through the decision relied upon

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by the learned advocate for the respondents in Siddu Venkappa Devadiga v. Rangu S. Devadiga (supra) of the Hon'ble Apex Court in which, it is observed that, 'the High Court therefore went wrong in ignoring this basic principle of law, and in making out an entirely new case which was not pleaded and was not the subject matter of the trial'.

5.7 Thus, the ratio of the aforesaid decision of the Hon'ble Apex Court if applied to the case on hand, it is an admitted that the petitioner - plaintiff has prayed for to forward a document (exh.

35) to the handwriting expert for his report and the said application has been rejected by the learned trial Judge for the reasons as cited in the preceding paragraph of this judgment. Thus, when, by the application in question, the petitioner has made certain prayer and outcome of which is challenged on the basis which was not the subject matter of the application, in the considered opinion of this Court, this writ petition lacks merits.

5.8 From the provisions of the Evidence Act, as enumerated herein above, xerox copy of a public document is inadmissible in evidence unless and until it is proved in a way as provided under the law and hence, on such a document, the prayer which is made by the petitioner - plaintiff, cannot be acceded to.

5.9 There cannot be any ambiguity as regards the powers of the Court under O.13 R.10, O.16 R.6 & 14, O.7 R.14 and O.11 R.12 of the CPC but for the fact that proper plea is to be made or at proper stage, the same should be exercised by the Court concerned.

6. Thus, in the aforesaid backdrop, present writ petition fails

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and is dismissed accordingly. Rule is discharged with no order as to costs.

6.1 However, liberty is reserved in favour of the petitioner - plaintiff to move appropriate application before the learned trial Court taking all such plea/contentions available to him under the law, which shall be considered by the trial Court concerned, in accordance with law, without being influenced by any order, giving opportunity of hearing to both the parties.

[ A. C. Joshi, J. ] hiren