H. Siddiqui (dead) by L.Rs.Vs A. Ramalingam [ALL SC 2011 March]

KEYWORDS:- Admission of document-Duty of appeal court-secondary evidenceEvidence All the means by which a matter of fact, the truth of which is submitted for investigation, is established or disproved. Bharatiya Sakshya (Second) Adhiniyam 2023 -

DATE:- 04-03-2011-

• Secondary evidence relating to the contents of a document is inadmissible, until the non production of the original is accounted for
• It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgmentJudgment The statement given by the Judge on the grounds of a decree or order - CPC 2(9). It contains a concise statement of the case, points for determination, the decision thereon, and the reasons for such decision - Order 20 Rule 4(2).  Section 354 of CrPC requires that every judgment shall contain points for determination, the decision thereon and the reasons for the decision. Indian Supreme Court Decisions > Law declared by Supreme Court to be binding on all courts (Art 141 Indian Constitution) Civil and judicial authorities to act in aid of the Supreme Court (Art 144) Supreme Court Network On Judiciary – Portal > Denning: “Judges do not speak, as do actors, to please. They do not speak, as do advocates, to persuade. They do not speak, as do historians, to recount the past. They speak to give Judgment. And in their judgments, you will find passages, which are worthy to rank with the greatest literature….” Law Points on Judgment Writing > The judge must write to provide an easy-to-understand analysis of the issues of law and fact which arise for decision. Judgments are primarily meant for those whose cases are decided by judges (State Bank of India and Another Vs Ajay Kumar Sood SC 2022) rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions.

(2011) 3 SCALE 290 : AIR 2011 SC 1492 : JT 2011 (3) SC 522 : (2011) 4 SCC 240

(SUPREME COURT OF INDIAIndia Bharat Varsha (Jambu Dvipa) is the name of this land mass. The people of this land are Sanatan Dharmin and they always defeated invaders. Indra (10000 yrs) was the oldest deified King of this land. Manu's jurisprudence enlitened this land. Vedas have been the civilizational literature of this land. Guiding principles of this land are : सत्यं वद । धर्मं चर । स्वाध्यायान्मा प्रमदः । Read more)

(Before : P. Sathasivam and B. S. Chauhan, JJ.)

Civil Appeal No. 6956 of 2004 : Decided On: 04-03-2011

Evidence Act, 1872—Section 65—Secondary evidence—Secondary evidence relating to contents of a document is inadmissible, until non-production of original is accounted for—Secondary evidence must be authenticated by foundational evidence that alleged copy is in fact a true copy of original—Mere admission of a document in evidence does not amount to its proof—Documentary evidence is required to be proved in accordance with law—Court has obligation to decide question of admissibility of a document in secondary evidence before making endorsement thereon.

Civil Procedure Code, 1908—Order 41, Rule 31—Appeal—It must be evident from judgment of appellate Court that Court has properly appreciated facts/evidence, applied its mind and decided the case considering material on record—It would amount to substantial compliance of the provisions if appellate Court’s judgment is based on independent assessment of relevant evidence on all important aspect of matter and findings of appellate Court are well founded and quite convincing.

Counsel for the Parties:

K.K. Mani, Abhishek Krishna and Mayur R. Shah, Advs.

Rajiv Dutta, Sr. Adv., G. Sivabalamurugan, Anis Mohd. and L.K. Pandey, Advs.

JUDGMENT

B.S. Chauhan, J—This appeal has been preferred against the judgment and order dated 3.2.2004 passed by the High Court of Karnataka at Bangalore in Regular First Appeal No. 265 of 1999.

2. facts:

(A) The Appellant who had been inducted as a tenant at an initial stage filed suit No. 30/1981 on 1.1.1981 for specific performanceSpecific performance The remedy of specific performance is special and extraordinary and is at the court’s discretion, which the court would only exercise “if, under all the circumstances, it is just an equitable to do so”. Factors affecting the court’s discretion include considerations such as: (a) whether damages would be an adequate remedy; and (b) whether the person against whom the relief of specific performance is being sought would suffer substantial hardship. of contractContract An agreement enforceable by law is a contract. All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Indian Contract Act. in the City Civil Court, Bangalore alleging that the power of attorney holder of the Respondent entered into the agreementContract An agreement enforceable by law is a contract. All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Indian Contract Act. dated 25.6.1979 to sell the suit property i.e. 1/3rd share of the Respondent in the property being No. 43, Mission Road, Shanti Nagar, Bangalore-27 to him for a consideration of ` 40,000/- by receiving an advance of ` 5,000/-.

(B) The said agreement was duly registered and according to the terms incorporated therein, the sale deed was to be executed on or before 30.12.1980. The Respondent failed to take necessary steps to act according to the agreement. Thus, the Appellant/Plaintiff issued notice to the Respondent on 5.3.1980 through his lawyer.

(C) The Appellant/Plaintiff allegedly paid the balance amount on 15.5.1980. As the timeTime Where any expression of it occurs in any Rules, or any judgment, order or direction, and whenever the doing or not doing of anything at a certain time of the day or night or during a certain part of the day or night has an effect in law, that time is, unless it is otherwise specifically stated, held to be standard time as used in a particular country or state. (In Physics, time and Space never exist actually-“quantum entanglement”) limit for the execution of the sale deed had expired, and the sale deed was not executed, the Appellant/Plaintiff filed the suit for specific performance.

(D) The Respondent denied the execution of any power of attorney in favour of his brother with regard to alienation of the property. In fact the power of attorney had been given only for management of the property and not creating any right to transfer the same.

(E) In view of the pleadings, the Trial Court framed issues and after conclusion of the trial decreed the suit vide judgment and decree dated 3.11.1998.

3. Being aggrieved, the Respondent preferred Regular First Appeal No. 265 of 1999 before the High Court of Karnataka which has been allowed by the impugned judgment and decree dated 3.2.2004. Hence, this appeal.

4. Shri K. K. Mani, learned Counsel appearing for the Appellant has submitted that as the Appellant had proved that the agreement to sell dated 25.6.1979 was not obtained by the Appellant through any kind of fraud, there was no justification for the High Court to set aside the judgment and decree of the Trial Court for specific performance on the grounds: the property was situated in Bangalore; the sale consideration was inadequate; and as a result of a long lapse of time on account of pendency of the case before the courts there has been a steep rise in the market value of the property. There can be no justification for not giving effect to the registered agreement to sell. The Appellant had paid a sum of ` 65,500/-, though the consideration as per the agreement had been only to the extent of Rs.40,000/-. The judgment and order of the High Court is liable to be set aside for the reasons that geographical location of the property or inadequate consideration and rise/escalation of price during the pendency of the case in court cannot be the grounds for reversal of the judgment and decree of the Trial Court.

5. On the contrary, Shri Rajiv Dutta, learned senior counsel appearing for the sole Respondent has vehemently opposed the appeal contending that the Respondent never executed the power of attorney in favour of his brother enabling him to transfer the suit property. Power of attorney had never been filed before the Trial Court nor had it been proved. The photocopy of the same was shown to the Respondent during the time of his cross-examination wherein he has admitted his signature thereon only. The Respondent had never admitted its contents or genuineness of the same. Therefore, the power of attorney itself had not been proved in terms of Sections 65 and 66 of the Indian Evidence Act, 1872 (hereinafter called Act 1872) and, thus the question of proceeding further by the Trial Court could not arise. More so, it is not probable that the Appellant paid a sum of Rs.65,500/- instead of ` 40,000/- as consideration fixed in the agreement to sell. The agreement dated 25.6.1979 contained Clause 11 according to which if the sale deed was not executed, the earnest money of ` 5,000/- received by alleged power of attorney holder would be refunded to the purchaser together with the like amount of ` 5,000/- as liquidated damage for breach of contract. Thus, at the most, the Appellant was entitled to receive a sum of ` 10,000/- but the question of decreeing the suit could not arise. The Appellant had been a tenant. He never paid any consideration. Earlier there has been a prior sale of 1/3rd share in the same property (share of the brother of the Respondent) in favour of D. Narendra and the Appellant had filed the suit against him also claiming that the said part of the property could have been sold to him. The alleged payment of ` 65,500/- or Rs.40,000/- as a sale consideration is nothing but mis-representation by showing forged receipts prepared by the Appellant in collusion with the son of the alleged power of attorney holder at the time of litigation with D. Narendra. The appeal lacks merit and is liable to be dismissed.

6. We have considered the rival submissions made by learned Counsel for the parties and perused the record.

7. Admittedly, there had been litigation between the Appellant and other co-sharers when 1/3rd share of the said property was sold in favour of D. Narendra by the brother of the Respondent. Appellant herein has lost the said case. Before the Trial Court, the Appellant while filing the suit has impleaded the Respondent and his brother, R. Viswanathan, the alleged power of attorney holder. In the First Appeal, before the High Court, both of them had been the parties. However, before this Court the alleged power of attorney holder, R. Viswanathan, has not been impleaded as Respondent for the reasons best known to the Appellant.

8. The Trial Court taking into consideration the pleadings had framed the following issues:

1. Whether the Defendants prove that the agreement of sale dated 25.6.1979 was taken by the Plaintiff by practicing fraud on the II Defendant as per the written statement of D1 and D2?

2. Whether the Plaintiff proves payment of amount as alleged in the plaint?

3. To what relief the Plaintiff is entitled to.

Additional Issues:

1. Whether the suit is bad for non-joinder of necessary parties?

2. Whether the agreement dated 25.6.1979 is unenforceable?

9. In view of the pleadings, as the Respondent has specifically denied the execution of a power of attorney in favour of R. Viswanathan, Defendant No. 2 in the suit (not impleaded herein), the main issue could be as to whether the power of attorney had been executed by the Respondent in favour of R. Viswanathan enabling him to alienate the suit property and even if there was such power of attorney whether the same had been proved in accordance with law.

10. Provisions of Section 65 of the Act 1872 provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where original documents are not produced at any time, nor, any factual foundation has been led for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. (Vide: The Roman Catholilc Mission and Anr. v. The State of Madras and Anr., AIR 1966 SC 1457; State of Rajasthan and Ors. v. Khemraj and Ors. AIR 2000 SC 1759; Life Insurance CorporationCorporation A legally established entity that can enter into contracts, own assets and incur debt, as well as sue and be sued—all separately from its owner(s). The term covers both for-profit and nonprofit corporations and includes nonstock corporations, incorporated membership organizations, incorporated cooperatives, incorporated trade associations, professional corporations and, under certain circumstances, limited liability companies. of India and Anr. v. Ram Pal Singh Bisen, (2010) 4 SCC 491; and M. Chandra v. M. Thangamuthu and Anr. (2010) 9 SCC 712.

11. The Trial Court decreed the suit observing that as the parties had deposed that the original power of attorney was not in their possession, question of laying any further factual foundation could not arise. Further, the Trial Court took note of the fact that the Respondent herein has specifically denied execution of power of attorney authorising his brother R. Viswanathan to alienate the suit property, but brushed aside the same observing that it was not necessary for the Appellant/Plaintiff to call upon the Defendant to produce the original power of attorney on the ground that the photocopy of the power of attorney was shown to the Respondent herein in his cross-examination and he had admitted his signature. Thus, it could be inferred that it is the copy of the power of attorney executed by the Respondent in favour of his brother (R. Viswanathan, second Defendant in the suit) and therefore, there was a specific admission by the Respondent having executed such document. So it was evident that the Respondent had authorised the second Defendant to alienate the suit property.

12. In our humble opinionOpinion A judge's written explanation of a decision of the court. In an appeal, multiple opinions may be written. The court’s ruling comes from a majority of judges and forms the majority opinion. A dissenting opinion disagrees with the majority because of the reasoning and/or the principles of law on which the decision is based. A concurring opinion agrees with the end result of the court but offers further comment possibly because they disagree with how the court reached its conclusion., the Trial Court could not proceed in such an unwarranted manner for the reason that the Respondent had merely admitted his signature on the photocopy of the power of attorney and did not admit the contents thereof. More so, the court should have borne in mind that admissibility of a document or contents thereof may not necessary lead to drawing any inference unless the contents thereof have some probative value.

13. In State of Bihar and Ors. v. Sri Radha Krishna Singh and Ors., AIR 1983 SC 684, this Court considered the issue in respect of admissibility of documents or contents thereof and held as under:

Admissibility of a document is one thing and its probative value quite another – these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and the weight of its probative value may be nil.

14. In Madan Mohan Singh and Ors. v. Rajni Kant and Anr., AIR 2010 SC 2933, this Court examined a case as a court of fifth instance. The statutory authorities and the High Court has determined the issues taking into consideration a large number of documents including electoral rolls and school leaving certificates and held that such documents were admissible in evidence. This Court examined the documents and contents thereof and reached the conclusion that if the contents of the said documents are examined making mere arithmetical exercise it would lead not only to improbabilities and impossibilities but also to absurdity. This Court examined the probative value of the contents of the said documents and came to the conclusion that Smt. Shakuntala, second wife of the father of the contesting parties therein had given birth to the first child two years prior to her own birth. The second child was born when she was 6 years of age; the third child was born at the age of 8 years; the fourth child was born at the age of 10 years; and she gave birth to the fifth child when she was 12 years of age.

Therefore, it is the duty of the court to examine whether documents produced in the Court or contents thereof have any probative value.

15. The Trial Court rejected the contention of the Respondent that the Appellant/Plaintiff had paid more than what had been agreed in the agreement to sell, and hence changed the terms of agreement unilaterally, observing that in such a fact-situation it cannot be said that the terms of the agreement had been unilaterally altered by the Appellant/Plaintiff. Such a remark/observation could not have been made without any explanation furnished by the Appellant, as under what circumstances the Appellant-purchaser, without being asked by the Respondent-seller, to enhance the consideration amount has paid more and it cannot be held to be natural human conduct in public and private business. Such conduct of the Appellant remains most improbable.

16. The High Court while dealing with the First Appeal has framed only the following two issues:

(a) Whether the findings and reasons recorded on issue Nos. 1 and 2 and Addl. Issue Nos. 1 & 2 by the Trial Court in holding that Defendants have not proved that they have not executed agreement of sale in favour of Plaintiff and the same has been obtained by the Plaintiff by making use of power of attorney holder of second Defendant which amounts to fraud and mis-representation warrant interference with the same by this Court in exercise of its Appellate power and jurisdictionJurisdiction Authority by which courts receive and decide cases. Limited Jurisdiction: the authority over only particular types of cases, or cases under a prescribed amount in controversy, or seeking only certain types of relief, the District Court is a court of limited jurisdiction. Original Jurisdiction: Jurisdiction of the first court to hear a case.?

(b) Whether the Trial Court was right in not exercising its discretionary power under sub- section (2) of Section 20 while granting judgment and decree for specific performance in favour of Plaintiff if it has not exercised its power under the above provisions of the Act, whether, this Court has to remand the case to the trial court after setting aside the judgment and decree for the consideration regarding this aspect of the case?

17. The High Court failed to realise that it was deciding the First Appeal and that it had to be decided strictly in adherence with the provisions contained in Order XLI Rule 31 of the Code of Civil Procedure, 1908 (hereinafter called CPC) and once the issue of alleged power of attorney was also raised as is evident from the point (a) formulated by the High Court, the Court should not have proceeded to point (b) without dealing with the relevant issues involved in the case, particularly, as to whether the power of attorney had been executed by the Respondent in favour of his brother enabling him to alienate his share in the property.

Order XLI, Rule 31 CPC:

18. The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance of the said provisions if the appellate court’s judgment is based on the independent assessment of the relevant evidence on all important aspect of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions. (Vide: Thakur Sukhpal Singh v. Thakur Kalyan Singh and Anr., AIR 1963 SC 146; Girijanandini Devi and Ors. v. Bijendra Narain Choudhary, AIR 1967 SC 1124; G. Amalorpavam and Ors. v. R.C. Diocese of Madurai and Ors., (2006) 3 SCC 224; Shiv Kumar Sharma v. Santosh Kumari, (2007) 8 SCC 600; and Gannmani Anasuya and Ors. v. Parvatini Amarendra Chowdhary and Ors., AIR 2007 SC 2380

19. In B.V. Nagesh and Anr. v. H.V. Sreenivasa Murthy JT (2010) 10 SC 551, while dealing with the issue, this Court held as under:

The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for re-hearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put- forth and pressed by the parties for decision of the appellate Court. Sitting as a court of appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 and Madhukar and Ors. v. Sangram and Ors., (2001) 4 SCC 756

20. More so, none of the courts below had taken into consideration Clause 11 of the agreement dated 30.6.1979 which reads as under:

11. In the event of any default on the part of the vendors in completing the sale the earnest money paid herewith shall be refunded to the purchasers together with a like amount of ` 5,000/- (Rupees five thousand only) as liquidated damages for breach of contract.

Thus, in case of non-execution of the sale deed, the Appellant could get the earnest money with damages.

21. So far as the issues of inadequate consideration and rise in price are concerned, both the parties have argued the same at length and placed reliance on a large number of judgments of this Court, including: Chand Rani (Smt.) (dead) by L.Rs. v. Kamal Rani (Smt.)(dead) by L.Rs., AIR 1993 SC 1742; Nirmala Anand v. Advent Corporation (P) Ltd. and Ors., (2002) 8 SCC 146; P. D’Souza v. Shondrilo Naidu, (2004) 6 SCC 649; Jai Narain Parasrampuria (dead) and Ors. v. Pushpa Devi Saraf and Ors., (2006) 7 SCC 756; Pratap Lakshman Muchandi and Ors. v. Shamlal Uddavadas Wadhwa and Ors., (2008) 12 SCC 67; and Laxman Tatyaba Kankate and Anr. v. Taramati Harishchandra Dhatrak (2010) 7 SCC 717.

22. In view of the above, as we are of the considered opinion that the courts below have not proceeded to adjudicate upon the case strictly in accordance with law, we are not inclined to enter into the issue of inadequate consideration and rise in price.

However, the judgment impugned cannot be sustained in the eyes of law.

23. In the facts and circumstances of the case, we remit the matter to the High Court setting aside its judgment and decree (impugned) and request the High Court to decide the same afresh in accordance with law, as explained hereinabove. As the case has been pending for three long decades, we request the High Court to decide it expeditiously. However, it is clarified that any observation made herein shall not adversely affect the cause of either parties.

24. With the above observations, the appeal stands disposed of. There shall be no order as to costsCosts Subject to any written law, costs are at the discretion of the Court, and the Court has the power to determine all issues relating to the costs of or incidental to all proceedings, including by whom and to what extent the costs are to be paid, at any stage of the proceedings or after the conclusion of the proceedings. Generally “Costs” includes charges, disbursements, expenses, fees, and remuneration. Costs in any matter are payable from the date of the order of the Court unless the parties otherwise agree. The costs of a third-party funding contract are not recoverable as part of the costs of, or costs..