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
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