Jagannath vs Kajoria and Others

Dave, J.—This is a second appeal by the plff. against the judgment & decree of the learned Additional District J., Alwar, dated 12-4-1949 reversing the decree of the Munsif, Rajgarh, dated 30-11-1948 decreeing the plff.''s suit.

The main question involved in this appeal it whether a court summoning a record of another suit between the parties under O. 13 R. 10, Civil P. C. can use any document from the latter record without putting it to the party against which it is to be used or without getting it proved formally.

The facts giving rise to the above question are that the plff-appellant filed a suit for possession of land situated in the village Achalpuri in the court of the Munsif at Rajgarh. It was averred by the plff. that the deft-respt. had taken unlawful possession of the disputed land on 15-7-1942. The deft, pleaded that it was his ancestral property & that it was in his & his ancestors'' possession for a long time. The trial court found that from the plff''s own admission the disputed land was proved to be in the possession of the deft, from 12-2-1935 & not from 15-7-1942. It was however held by that court that the deft''s possession was not adverse &, therefore, the suit was not barred. On appeal by the deft, the Additional Dist. J., Alwar, came to the conclusion that as the deft, was found to be, in possession of the property since 15-2-1935, Art. 142, Limitation Act, was applicable in the present case & the plff''s suit was time-barred.

The appellant''s counsel contends that the deft, had produced no evidence in the trial court to prove that he had got possession of the disputed property from 15-2-1935. It was pointed out that after both the parties had finished their evidence the trial court summoned the record of a previous case between the parties & on the basis of a plaint, which, in its opinion, was filed by the plff.-appellant in that case, the learned trial Judge came to the conclusion that the plff. had admitted the deft''s possession from 15-2-1935. The appellant''s Counsel contends that the trial court could summon the record of the previous suit between the parties but it could not use this document on the back of the plff. to his disadvantage. This argument is found to be correct.

The relevant portions of O. 13 R. 10, C.P.C., are as follows:

(1) the court may of its own motion, & 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, & inspect the same.

(2) 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.

According to sub-rule (1) the court has got the authority to send for the record of any other suit or proceeding & inspect the same, but sub-rule (3) makes it quite clear that it has no authority to use in evidence any document which under the law of evidence would be inadmissible in the suit. It was held in AIR 1943 54 (Oudh) that it is not permissible to raise any presumption of genuineness in respect of the plaint, which is only a private document, & that it must be proved by direct evidence. In AIR 1930 714 (Lahore) it was observed by Shadilal, C.J., & concurred by another Judge of the High Court that admissions cannot be used against a party unless they are put to him & an opportunity is afforded to him to explain them if they are capable of explanation. I respectfully agree with the views expressed in the above decisions & it was incumbent upon the trial Court to put the said plaint to the plff. & ask him in the first instance whether he admitted it. Then the portion which was sought to be used against him should also have been pointed out & he should have been asked if he had any explanation to offer about it. As long back as in ''Phullu v. Ghulam Nabi'', AIR 1927 Lah 69 (2), it was observed by Dalipsingh, J., that the mere sending of a record under O. 13, R. 10, C.P.C., does not bring it in evidence. The same view was expressed by Bhide, J., in AIR 1929 78 (Lahore) & by a Division Bench consisting of Coldstream & Tekchand, JJ., in AIR 1931 119 (Lahore)

Relying on these decisions, the Oudh Chief Court also took the same view in ''Gokul Prasad v. Made) Kuar'', AIR 1941 Oudh 341. The learned Advocate for the respt. has himself conceded that the trial Court ought to have taken proper proceedings to get this document proved according to law before bringing it on record & using it against the appellant.

It appears from the record that the parties have produced oral evidence also on this point. The trial Court has in its judgment referred to the statement of witnesses but it has not given any expression about its own opinion about them. The appellate Court does not seem to have gone through that evidence at all nor has it tried to touch other issues. The advocates for both the parties agree that the case should be remanded to the first appellate Court. The respt''s. advocate prays that the first appellate Court should be directed to give a chance to both the parties to bring their evidence if they so desire regarding the said document, i.e., the plaint in the previous case between the parties. The appellant''s advocate, on the other hand, says that it should be altogether excluded from evidence & the first appellate Court should simply rehear the parties & decide the case on the remaining evidence. I think that the contention of the appellant''s advocate in this connection is not reasonable. Both the Courts have considered this document to be an important piece of evidence. Apparently there is no inherent defect from its inadmissibility in evidence. All that is required is a formal proof to enable it to be brought on record. It does not seem proper to neglect this documentary evidence to which so much importance has been attached by the Courts below, simply because of the lack of formality.

The appeal is allowed & the order of the first appellate Court is set aside. The file be remanded to the Dist. J., Alwar, with the direction that after giving an opportunity to both the parties to prove & rebut this document & after hearing them again the case should be decided afresh.