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Sham Lal and anr. Vs. Muni Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 374 of 1971
Judge
Reported inAIR1972P& H199
ActsEvidence Act, 1872 - Sections 35, 56 and 57; Punjab Municipal Act, 1911 - Sections 188 and 199; Code of Civil Procedure (CPC), 1908 - Sections 115
AppellantSham Lal and anr.
RespondentMuni Lal and ors.
Cases ReferredMazhar Ali v. Hakimuddin
Excerpt:
.....only legislative enactments but also regulations or orders which have the force of law provided they are in their nature legislative and not executive; the court must take judicial notice thereof which means that the court is itself duty-bound to hunt them up and apply them to the facts of this case even though the parties or their counsel fail to produce them. by rejecting the copy of the relevant extract from the birth register the learned trial judge not only failed to exercise jurisdiction vested in him by law but also acted in the exercise of his jurisdiction with material irregularity inasmuch as he followed a procedure which was not warranted by law and which resulted in an erroneous decision. had he regarded the bye-laws as a 'law' within the meaning of section 57 of the indian..........of december, 1970, that the earlier order of this court did not stand in the way of the learned trial judge accepting the said application which should be disposed of on merits. the learned trial judge then heard the parties in relation to the application but rejected the application by means of the impugned order on the ground that the copy above mentioned was inadmissible in evidence in as much as its original was not shown to be an entry falling within the ambit of section 35 of the indian evidence act which runs thus:--'35. an entry in any public or other official book, register of record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty, specially enjoined by the law of.....
Judgment:
ORDER

1. This petition for revision of the order dated the 1st of April, 1971, passed by Shri. N. S. Bhalla, Senior Subordinate Judge, Jullundar in a preemption suit pending in his Court has arisen in these circumstances. In pursuance of an agreement of sale dated the 19th of December, 1966, Om Parkash respondent No. 5 sold a house situated at Jullundur to respondents Nos. 1 to 4 by means of a sale deed dated the 6th of March, 1967. At the time of the sale the petitioners were in occupation of the ground-floor of the house as tenants and instituted the said suit for possession of the whole house on the basis of preemption. The case set up by respondents Nos. 1 to 4 in their written statement was that on the 1st of October, 1966, respondent No. 5 had rented out the upper storey of the house to them, that they had been in occupation thereof as tenants over since and that, therefore, the petitioner's right of pre-emption was not superior to their own. These facts were controverted by the petitioners in their replication with the statement:--

'It is absolutely wrong that the vendee-defendants were the tenants of the vendor at any time.'

On the 1st of January, 1968, the trial Court framed the issues in the case and the main issue was: --

'Whether the plaintiffs have a superior right of pre-emption over defendants Nos. 1 t 4.'

On the 11th of January, 1968, the petitioners placed on the file a copy of an extract from the register of births maintained by the Municipal Committee, Jullundur, according to which a daughter was born in the house in dispute to the wife of respondent No. 5 on the 21st of November, 1966. The case lingered on at the evidence stage for one reason or the other till, on the 1st of January, 1970, the petitioners made an application to the Court praying that the said copy be admitted in evidence as it required no formal proof. That application was originally rejected by the learned trail Judge on the ground that an order of the High Court passed in revision on the 23rd of July, 1969, precluded him from accepting any evidence other than the depositions of two witnesses. The petitioners came up in revision to this Court and Sodhi, J., directed on the 18th of December, 1970, that the earlier order of this Court did not stand in the way of the learned trial Judge accepting the said application which should be disposed of on merits. The learned trial Judge then heard the parties in relation to the application but rejected the application by means of the impugned order on the ground that the copy above mentioned was inadmissible in evidence in as much as its original was not shown to be an entry falling within the ambit of Section 35 of the Indian Evidence Act which runs thus:--

'35. An entry in any public or other official book, register of record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty, specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact.'

It was contended before the learned trial Judge that the register of births, of a portion of which the document sought to be admitted in evidence was a copy, had been maintained by municipal officials in pursuance of bye-laws framed under Cl.(c) of Section 188 read with Section 199 of the Punjab Municipal Act, 1911 (hereinafter referred to as the Act) but the contention did not find favour with him for the reason that the existence of such bye-laws had not been proved.

2. The relevant portion of Section 188 of the Act runs thus:--

'188. A Committee may, and shall if so required by the State Government by bye-laws,

* * * * * * * * * (c) provide for the proper registration of births, marriages and deaths, and for the taking of a census; * * * * * * * *'

It transpires that bye-laws under this clause read with Section 199 of the Act were actually framed by the Municipal Committee and that after they had been confirmed by the Local Government under Section 201(1) of the Act, they were published in the Punjab Government Gazette dated the 12th of September, 1919, in the form of notification No. 19700 dated the 9th September, 1919. This is now admitted on all hands and a copy of the Gazette has been produced on behalf of the petitioners for the inspection of the Court. Learned counsel for the vendees-respondents, however, urges that the Gazette notification cannot be taken into consideration at this stage as the same would amount to the introduction of additional evidence. With this submission I do not find myself at all for agreement for the reasons which hereafter appear.

3. Clause (1) of S. 57 of the Indian Evidence Act, 1872 states that the Court shall take judicial notice of 'all laws in force in the territory of India' and Section 56 thereof lays down that no fact of which the Court will take judicial notice need be proved. Now if the bye-laws above-mentioned constitute a 'law' within the meaning of Clause (1) of Section 57 of that Act, the Court will take judicial notice thereof and they need not be proved. The word 'law' has not been defined in the Indian Evidence Act but it is by now well settled that it includes not only legislative enactments but also regulations or orders which have the force of law provided they are in their nature legislative and not executive; so that an order of a legislative character which is made by an authority in exercise of the power conferred by a legislative provision owes its legal efficacy to that provision and in the eye of law, therefore, it has the force of a law made by the legislature itself (Edward Mills Co. Ltd., Beawar v. State of Ajmer, AIR 1955 SC 25; The State of Bombay v. F. N. Balsara, AIR 1951 SC 318 & State v. Gopal Singh, AIR 1956 Madh Bha 138 (FB)).

In the present case the bye-laws were framed by the Municipal Committee in exercise of the powers conferred on it by Cl.(c) of Section 188 of the Act. They have thus the same force as that section itself and, being provisions of a legislative character, must be held to constitute a 'law' within the meaning of Section 57 of the Indian Evidence Act; and no question of the petitioners being asked to 'prove' them arises. The Court must take judicial notice thereof which means that the Court is itself duty-bound to hunt them up and apply them to the facts of this case even though the parties or their counsel fail to produce them. In this connection see Mazhar Ali v. Hakimuddin, AIR 1965 Pat 489.

4. The bye-laws above mentioned lay down the mode in which registers of births and deaths are to be maintained. They must, therefore, be regarded as the record of official acts performed by public servants in the discharge of their official duties and if that be so, they at once become admissible under Section 35 of the Indian Evidence Act and in proof of their contents certified copies thereof may be produced as laid down in Section 77 thereof. The result is that the copy sought to be introduced in evidence by the petitioners should have been admitted by the trial Court without proof and assigned an exhibit mark without further proof.

5. Mr. Jain has raised a contention that even if the conclusion arrived at by the learned trial Judge is erroneous in law, this Court has no jurisdiction to rectify the error on the revisional side. This contention must also be turned down. By rejecting the copy of the relevant extract from the birth register the learned trial Judge not only failed to exercise jurisdiction vested in him by law but also acted in the exercise of his jurisdiction with material irregularity inasmuch as he followed a procedure which was not warranted by law and which resulted in an erroneous decision. Had he regarded the bye-laws as a 'law' within the meaning of Section 57 of the Indian Evidence Act, as he was duty-bound to, he would have not insisted on any proof thereof but would have hunted them out himself and applied them to the controversy before him even though the parties and their counsel had failed to produce them. In this view of the matter the petitioners must be held entitled to have the erroneous orders set aside under Section 115 of the Code of Civil Procedure.

6. In the result the petition is accepted, the impugned order is set aside and the learned trial Judge is directed to admit in evidence the document in question and to assign it an exhibit mark without further proof of its contents. It will, of course, be open to respondents Nos. 1 to 4 to produce such evidence in rebuttal of the contents of the document as they may choose to. In the circumstances of the case the parties are left the bear their own costs.

7. Petition allowed.


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