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Prakash Cotton Mills Pvt. Ltd. Vs. Municipal Commissioner for Greater Bombay and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberSpl. Civil Appln. Nos. 1331 and 1946 of 1978
Judge
Reported inAIR1982Bom387; 1982(1)BomCR819; 1982MhLJ840
ActsEvidence Act, 1972 - Sections 5, 64 and 67
AppellantPrakash Cotton Mills Pvt. Ltd.
RespondentMunicipal Commissioner for Greater Bombay and anr.
Appellant AdvocateB.G. Vaidya, Adv. i/b., H.V. Mehta & Co. and;Bachubhai Munim & Co.
Respondent AdvocateV.T. Walavalkar,;M.V. Shetty,;N.V. Kamat and;P.B. Karhadkar, Advs.
Excerpt:
the case dealt with the proof of the contents involved in a sale deed under sections 5, 64 and 67 of the evidence act, 1872 - it was found that the executant of the sale deed was not examined, however, the proof of signature of the executant was being offered - it was held that it could not prove the truth related to the contents of the document, which could only be proved by the executant - hence, the sale deed would be inadmissible in evidence in view of the failure to examine the executant - - in the result this petition must fail rule is discharged with no order as to costs......passed by the additional chief judge of small cause court at bombay disallowing the exhibition of sale-deed on which the petitioner wanted to rely. since, however, the petition has been admitted and rule granted on the same and since arguments have been advanced before me on the interpretation of a judgment of this court i have proceeded to hear and dispose of this petition on merits.2. before the learned additional chief judge of the small cause court reliance had been placed by the petitioners on a sale deed but the executant of the sale-deed but the executant of the sale-deed was not examined. the proof of the signature of the executant, however, was offered but that itself could not prove that contents of the sale-deed or the truth of the contents of the sale-deed. on this ground.....
Judgment:

1. Normally I would have discharged the rule in this petition on the threshold itself because it challenges an interlocutory order passed by the Additional chief Judge of Small Cause Court at Bombay disallowing the exhibition of sale-deed on which the petitioner wanted to rely. Since, however, the petition has been admitted and rule granted on the same and since arguments have been advanced before me on the interpretation of a judgment of this Court I have proceeded to hear and dispose of this petition on merits.

2. Before the learned Additional Chief Judge of the Small Cause Court reliance had been placed by the petitioners on a sale deed but the executant of the sale-deed but the executant of the sale-deed was not examined. The proof of the signature of the executant, however, was offered but that itself could not prove that contents of the sale-deed or the truth of the contents of the sale-deed. On this ground the learned Judge refused to exhibit the sale-deed. While so doing he relied upon a judgment of Division Bench of this Court 'In the matter of Mr. D, and Mr. S ' (1968) 68 Bom LR 226 in which it was held.

'To conclude this part of the discussion, we hold, in the first place that what has been formally proved is the signature of Abreo and not the writing of the body of the document of Exh. 26 and secondly, that even if the entire document is held formally proved, that does not amount to a proof of the truth of the contents of the document. The only person competent to give evidence on the truthfulness of the contents of the document was Abreo.'

This view in fact confirms the view taken by Bhagawati J. , as he then was , in Madholal Sindhu v. Asian Assurance Co. Ltd : (1954)56BOMLR147 . Both the judgements were noticed by Vimadalal J. In Bhima Thima Dhotre v, Pioneer Chemical Co. : (1968)70BOMLR683 . In this latter judgement Vimadalal J. Has made himself bold to say that he, sitting as a single judge, did not agree with the view which the Division Bench has taken and thereafter proceeded to express his own views on the question of the proof of the contents of a document . Obviously the views expressed by Vimadalal J. Cannot be binding upon a judge of this court or any judge of the subordinate court because they are only his personal views and they are contrary to the binding decision given by the Division Bench as vimadlal J. Himself has mentioned.

3. Further the matter is no longer in doubt because in the decision of the supreme court in Bishwanath Raj v. Sachhidanand singh, : AIR1971SC1949 , it has been held that the correctness of the contents of the letter can only be proved by examining the writer of that letter. In this state of law the view taken by the learned Additional chief judge of small cause court is correct and cannot be interfered with.

In the result this petition must fail Rule is discharged with no order as to costs. Rule is discharged in civil Application No. 1846 of 1978.

4. Petition dismissed.


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