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Smt. Taqdirunisa v. A.D.J. - WRIT - A No. 3455 of 1980 [2006] RD-AH 2286 (30 January 2006)


This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).


(Court No. 51)

Civil Misc. Writ Petition No. 3455 of 1980

Smt. Taqdirunnisa and another Versus I Additional District Judge, Allahabad and others.

Hon'ble S.U.Khan J

S.C.C Suit No. 486 of 1971 filed by landlords petitioners against tenants respondents was decreed by JSCC Allahabad on 30.11.1973. Relief of eviction from the tenanted accommodation as well as for recovery of arrears of rent was granted to the petitioners through the said judgment and decree. Tenants filed Civil Revision No. 97 of 1974, against the said judgment and decree. I Additional District Judge, Allahabad allowed the revision through judgment and order dated 4.8.1978 with the result that suit for ejectment and recovery of arrears of rent was dismissed. Said judgment and order of the revisional court is under challenge in this writ petition.

Revisional court allowed the revision only on the ground that notice of termination of tenancy and demand of rent was not properly proved. According to the landlord the said notice had been refused to be accepted by the tenants. The envelope containing the original notice and endorsement of refusal made by the Postman was filed before JSCC. Apart from it a copy of the said notice was also filed. During evidence before trial court only copy of the notice was proved by the landlord plaintiff. The revisional court was of the opinion that the proper course was to open the envelope before the trial court and prove the original notice. Revisional court further expressed the opinion that the copy of the notice which was proved was only secondary evidence and grounds mentioned under section 65 of Evidence Act to bring on record secondary evidence did not exist as original was very much in the file of the court. This point had not been taken by the tenant before the trial court. Even in the grounds of the revision the said point was not taken. While earlier allowing the writ petition on 5.7.004 (after hearing both the parties), I held that objection regarding admissibility of secondary evidence shall be taken at the earliest opportunity before the trial court otherwise affected party is debarred from raising the same before appellate or revisional stage. The reason for this proposition being that in case objection is taken before the trial court at the first opportunity then the other side may with the permission of the court if necessary adduce or formally prove the original document. For the said proposition, I placed reliance upon the following 19 authorities :-

1. AIR 1936 Calcutta 164

2. AIR 1980 (NOC) 7 (Alld)

3. AIR 1955 H.P 37

4. AIR 1953 Assam 80 (DB)

5. AIR 1951 Punjab 223

6. AIR 1946 Bombay 193

7. AIR 1917 Madras 671 (DB)

8. AIR 1924 Lahore 273 (DB)

9. AIR 1925 Lahore 347

10. AIR 1933 Lahore 601 (DB)

11. AIR 1972 Orissa 200

12. AIR 1953 Mysore 49

13. AIR 1922 Patna 565 (DB)

14. AIR. 1990 Rajasthan 90

15. AIR 1991 A.P 31 (F.B)

16. AIR 1964 A.P 53

17. (1907) 34 Calcutta 1059 (P.C)

18. AIR 1915 PC 111

19. AIR 1954 SC 139.

Learned counsel for the respondent tenant has cited the following authorities:-

1 S.T.Khimchand Vs. Y.Satyam, AIR 1971 SC 1865

2 M.Kumhar Vs. B.G.Ganeshpuri, 2000(6) SCC 735

3 Sir Mohd Yusuf Vs. D and another AIR 1968 Bom. 112

4 S.M.Mathur Vs. A.D.J 1983 Raj. 167

In the first authority the only thing, which has been said by the Supreme Court is that mere marking of a document as exhibit does not dispense with its proof. In the second authority of the Supreme Court circumstances under which secondary evidence may be adduced have been enumerated. Third authority of the Bombay High Court deals with proof of contents of document. The last authority of Rajasthan High Court states that High Court will not interfere in exercise of writ jurisdiction against order of the court below refusing permission to lead secondary evidence. None of the authorities cited by learned counsel for the respondents tenant have got direct bearing on the question involved in this case. In the instant case as the tenant respondent failed to raise the objection regarding admissibility of the secondary evidence at the stage of the trial court hence it was not permissible for the revisional court to upset the entire judgment only on the said point.

In respect of the point involved in this writ petition a comparatively recent judgment of the Supreme Court reported in R.V.E.V. Gounder Vs. A.V.V.P. Temple 2004(1) ARC 137 (SC) is worth noticing. In the said judgment photocopy of a certified copy of a decision was filed which was marked as exhibit without any objection by the other side. Photocopy of rent note was also produced in the said case.

Para 18 of the said judgment is quoted below: -

"The learned counsel for the defendant respondent has relied on the Roman Catholic Mission Vs. The State of Madras & Anr. AIR 1966 SC 1457 in support of his submission that a document not admissible in evidence, though brought on record, has to be exclude from consideration. We do not have any dispute with the proposition of law so laid down in the above said 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 can not 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 mode 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 herein above, in the latter 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."

The above authority of the Supreme Court clinches the issues involved in this writ petition.

Accordingly writ petition is allowed. Judgment and order passed by the revisional court is set-aside. Judgment and decree passed by the trial court is restored.

It was stated by learned counsel for the tenant respondent that in the execution application, which was filed after the earlier decision of this writ petition through judgment and order dated 5.7.204, signatures of petitioner No.7 who had already died were forged. This statement has not been substantially denied on behalf of the petitioners.

Accordingly in order to penalize the petitioners for the said fault, it is directed that they are not entitled to recover the arrears of rent provided that within one month from today respondents file an undertaking before the JSCC to the effect that on or before the expiry of six months from today they will willingly vacate and handover possession of house in dispute to the landlord petitioner.

However in case possession is not delivered within six months from today then arrears of rent may be recovered and respondent shall be evicted through process of court and since after six months till actual vacation they shall be liable to pay rent/ damages for use and occupation to the landlord at the rate of Rs. 1000/- per month.




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