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Whether it is necessary to file application seeking permission to adduce secondary evidence?



Parasanbai Dhanraj Jain
Sunanda Madhukar Jadhav

DATED: 10th November 2017

1. I have heard Mr Govilkar for some time for the Applicants (“Obstructionists”; “the Jains”) on the Civil Revision Application, and, briefly, Mr Matkar for the Respondent, Sunanda Madhukar Jadhav (“Sunanda”).

2. The Civil Revision Application is directed against an appellate order dated 3rd November 2015 in Appeal No. 239 of 2008. This appeal was in turn against a judgment dated 8th January 2008 in Obstructionist Notice No. 68 of 2005. That Obstructionist Notice came to be taken out in execution of an appellate decree passed on 10th March 2005 in Appeal No. 94 of 2001; and that arose against an order and judgment dated 27th July 2000 dismissing Sunanda’s Ejectment Suit of 1992. Sunanda holds a decree from the appellate court in her eviction suit.

3. This is a three-cornered, or more accurately, four-cornered, contest. On the one hand, there are the landlords, one Bipinchandra Doshi along with two others (“landlords”; “Doshi and others”) who own the property: Block No. 6, Second Floor, Sanghavi Mansion, 267, Jagannath Shankarseth Road, Girgaon, Mumbai 400 004. Then there is Sunanda, who says that she was a tenant of these premises from the landlords. She claims she gave these premises to what was then Maratha Mandir Cooperative Bank Limited, later the Saraswat Cooperative Bank Limited (“the Bank”) on a subtenancy. Finally there are the present Civil Revision Applicants, Parasanbai Dhanraj Jain and others, the Obstructionists, who say it is they who are the direct tenants of the landlords since November 1984-January 1985.

4. At the heart of this dispute is one single document dated 21st November 1984. It is by this document that it is alleged by the Bank, the landlords and the Obstructionists, that the Bank surrendered its sub-tenancy to Sunanda, and Sunanda in turn surrendered her tenancy to the landlords. In the first round, a photocopy of this document was marked in evidence as Exhibit 10. In appeal, by a truly extraordinary judgment, that order came to be reversed. The document was held not to have been sufficiently proved. The suit was decreed. In other words, the Appellate Court found that the surrender or relinquishment of the sub-tenancy and tenancy by the Bank and Sunanda respectively were not proved. Sunanda thus acquired an ejectment decree against the bank. I will note in passing that the appellate court seemed wholly unconcerned that Sunanda had not an iota of evidence of having paid any rent to the landlords from November 1984 onwards, and that her own so-called transaction with the Bank and her case of a continued sub-tenancy beyond November 1984 were riddled with inconsistencies. Sunanda herself gave no evidence. It was only her husband, said to hold a Power of Attorney, who stepped into the witness box. He said Sunanda could not give evidence because she ‘suffered from blood pressure’. That Sunanda paid no rent at all to the landlords from 1984, the date of the disputed surrender, until the date of the suit in 1992 is undisputed. The terms of her sub-tenancy to the Bank are also unclear; for, her case said, she was a constituent of the Bank; had a loan from it; created the sub-tenancy either in lieu of the loan, or with some nexus to it; and even so received five years’ rent in advance. The Bank, for its part, said it had refunded the advance rent on surrendering the sub-tenancy, but this, too, was disputed. Sunanda claimed the Obstructionists were sub-sub-tenants, i.e., put into possession by the Bank. The Obstructionists were not parties to her ejectment action against the Bank.

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5. Thus, when Sunanda put the decree she obtained from the appellate court into execution, that execution was promptly obstructed by the Jains, the Obstructionists. They claimed that it was on account of the relinquishment of the bank’s sub-tenancy to Sunanda, and relinquishment of her own tenancy to the landlords, that they, the Obstructionists, were put into possession as direct tenants of the landlords. They said they took the tenancy from January 1985 and had paid rent to the landlords since then. The landlords confirmed this.

6. Obviously the Jains’ claim to a direct tenancy was on the basis that the landlords (Doshi et al) had obtained possession of the premises; this could only have been done by relinquishment of the sub-tenancy and tenancy. Whether or not the obstructions knew of this at that time is totally immaterial.

7. The original appellate decree was challenged by the bank in Writ Petition No. 6117 of 2005. By a separate order made today, accepting a statement made on behalf of Sunanda by her son, I have disposed of that Writ Petition.

8. Of immediate concern here are the two orders in the obstructionist proceedings. The Trial Court dismissed the obstructionist notice finding that the Obstructionists were direct tenants of the landlords. It also found that there was in fact a relinquishment by the bank and Sunanda in that sequence, of, respectively, the sub-tenancy and the tenancy, and that the document of 21st November 1984 was in play, and was proved.

9. In appeal, the order of which is impugned in this Civil Revision Application, the bulk of the discussion seems to have been on the fact that the obstructionists did not specifically seek “leave to lead secondary evidence”.

10. This, I regret to say, is a misconception that has now attained the proportions of an epidemic, especially in the Court of Small Causes and in the civil courts. Apparently, none of these courts seems to care that there is no provision in the Code of Civil Procedure 1908 or the Evidence Act for any such application. Nobody seems to care either that there are reported decisions starting from Indian Overseas Bank v Triokal Textile Industries Ors.,1 of Vazifdar J (as he then was) directly to the contrary and saying that no such application is maintainable, desirable or even necessary.

11. I have recently set out the law on this2 and I will say so briefly once again: either secondary evidence is led or it is not led. Either the provisions of Section 65 are met or they are not met. No permission of a Court is required to lead evidence of any kind. No judge in the subordinate judiciary to this High Court will hereafter will insist on any such application under any circumstances whatsoever. I do not think I can put it in any clearer terms than this. Any such order is wholly illegal and liable to be set aside. A copy of this order is now to be circulated to every Civil Judge in the State of Order dated 3rd November 2017 in Writ Petition No. 11151 of 2017, Karthik Gangadhar Bhat v Nirmala Namdeo Wagh Anr. See also: Anandji Virji Shah Ors v Ritesh Sidhwani Ors, Chamber Summons No. 1153 of 2015 in Suit No. 395 of 2007, decided on 27th June 2016.; Ajaykumar Krishnaprasad Seth v Maya Ramesh Belvetkar Anr, Chamber Summons No. 17 of 2016 in Testamentary Suit No. 18 of 2003 in Testamentary Petition No. 628 of 2001, decided on 13th October 2016.; MMTC Ltd v Samarth Auto Care Pvt Ltd, Suit No. 427 of 1995, order dated 1st October 2014.; Lajwanti v Jayshree P Madhwani Ors, Testamentary Suit No. 6 of 2004, order dated 14th December 2016.; Sumati Ors v Yashodhara Ors, 2016 (6) All MR 507 (per Shukre J). Maharashtra. To clarify: in an evidence affidavit under Order 18, a witness may well say of a given document that he cannot prove it by direct evidence and then proceed to adduce the secondary evidence in compliance with Section 65 of the Evidence Act. The trial court is to consider that evidence, viz., the reason given for not leading direct evidence, and the secondary evidence led, and is to then decide whether the secondary evidence led is sufficient. That is all. There is absolutely no question of an application, whether styled as an interim application or a ‘MARJI’ application, for ‘permission’ to lead secondary evidence. The Court cannot refuse that permission, and it cannot insist on an application for any such permission.

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12. The appellate order impugned here obviously cannot be sustained. Before the Trial Court in the Obstructionist Notice, as in the original ejectment suit, Sunanda herself gave no evidence; this time, the difference being that nobody from her side gave any evidence at all. This is conceivably against her interest simply because in setting aside the appellate order and restoring the Trial Court order the document dated 21st November 1984 will enter the record as an uncontested piece of evidence without it ever being put to Sunanda. The whole state of affairs is entirely unsatisfactory and neither of the parties has obtained a truly defensible order at any level.

13. At this stage, it is necessary to note the frame of Order XXI Rules 97 to 101 of the Code of Civil Procedure 1908. As these provisions make clear, all questions, including of title, as between an obstructionist and a decree-holder are to be decided in obstructionist proceedings and not by a separate suit. In order to prove title whether as tenants or otherwise, an obstructionist may well need to refer to a document that was in issue in the previous proceedings that resulted in a decree. An obstructionist may yet be able to prove a document that the original defendant or judgment debtor could not. An obstructionist is not bound by the evidence led (or not led) in a lis between the decree-holder and the judgment debtor and to which the obstructionist was not a party; he had no opportunity to meet the case. In the present case, for instance, matters might have stood very differently in regard to the 21st November 1984 document had the present Obstructionist been joined as defendants to the original ejectment suit. They would then be bound by the findings on that document, its admissibility and its evidentiary value. This is why it is sometimes said that although it is never necessary to join a sub-tenant to an ejectment proceeding, it is usually desirable. A sub-tenant may or may not be bound by the decree, but in execution can resist qua obstructionist on all available grounds if he was not made a defendant to the original ejectment action. This is a course of action unavailable to him had he been joined as a defendant to the original suit in the first place. As between the present Obstructionists, the Jains, and the decreeholder Sunanda, the document of 21st November 1984 is, therefore, very much at large. The ruling on admissibility and evidence as regards that document is confined to the lis between Sunanda as the original Plaintiff and the Bank as the original Defendant. The reason is plain. The Jains, the present Obstructionists, had no opportunity in the principal ejectment suit to lead any evidence on that document. Their evidence on the document cannot be shut out by the simple expedient of not joining them to the ejectment action.

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14. The Civil Revision Application is only of 2016, so perhaps all is not yet irredeemably lost if parties are sent back to a trial on the Obstructionist Notice. I am making it clear that if Sunanda wishes to give evidence, she will give evidence herself and not through any constituted attorney. Mr Matkar assures me on instructions that she is well enough to do so. The Court may permit her evidence to be taken on commission if thought necessary and if this is supported by an appropriate application.

15. I am also making it clear that the Court will not insist on any application for leave to lead additional evidence and no objection will be entertained that such leave has not been obtained. The Obstructionists will be at liberty to lead such secondary evidence as they deem fit and to summon such witnesses as they think appropriate in support of the case they have pleaded. If Sunanda desires to give evidence, she will do so before any other witness on her behalf; and no other witness is permitted to depose in her stead or on her behalf.

16. There will be no further pleadings to be filed before the Court.

17. The appellate order dated 3rd November 2015 is quashed and set aside. To balance equities, the order of the Trial Court dated 8th January 2008 is also set aside, though that order is not on the merits or on any fault being found with the Trial Court order.

18. The Obstructionist Notice No. 68 of 2005 is restored to file. Parties will appear before the Trial Court on 28th November 2017. The Trial Court is requested to record evidence, hear the parties and dispose of the Obstructionist Notice at its earlier convenience and preferably on or before 16th March 2018.

19. All contentions are specifically kept open except to the extent indicated above.

(G. S. PATEL, J)

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