1. This petition is directed against the order dated the 6th of November 1969 by which the trial Court dismissed the petitioner's application preferred under Order 13. Rule 2 and Section 151 of the Civil Procedure Code praying that the original agreement dated the 6th of April 1959, which was filed with the application be permitted to be produced in Court and be received in evidence.
2. The application was contested. In paragraph 1 of the application it was stated that the plaintiff had purchased the house in suit from Shri Ganga Sahai son of Shri Katara in April, 1959 by a writing. The document sought to be produced with the application was that writing. The trial Court after hearing the parties came to the conclusion that the document like the one sought to be produced could be easily procured. It was observed:--
'Such a back dated document on a white paper could be prepared at any time with the actual thumb impression of the witnesses and the executant'.
Proceeding a little further the trial Court again found:--
'It is unregistered and unstamped. I find that such a document could be prepared at any time, just to show that the house existed in the year 1959.'
The trial Court did not allow the application on the finding that a document, the authenticity whereof was doubtful, could not be allowed to be placed on the record. The Court below was constrained to record:--
'I find that in this case there is every chance of the document having been concocted.'
On that basis the document was not allowed to be produced as evidence and proved on the record of the case.
3. According to Order 13, Rule 1 of the Civil Procedure Code (hereinafter called 'the Code') it is required of the parties to produce at the first hearing of the suit all the documentary evidence of every description in their possession or power on which they may intend to rely. The Court below was dealing with the petitioner's application in terms of O. 13, R. 2 which is :--
Order 13, Rule 2:--
'2. No documentary evidence in the possession or power of any party which should have been but has not been produced in accordance with the requirements of Rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non/production thereof and the Court receiving any such evidence shall record the reasons for s doing.'
The Court is given discretion by the aforequoted provision to allow the production of documents which may not have been produced in accordance with the provisions of Order 13, Rule 1. but when receiving such documents as evidence, the Court has to record reasons for doing that. It was open to the trial Court to refuse to receive the documents in terms of Rule 2 and if it was to receive it as evidence, the trial Court was to show reasons for allowing the production of the document as evidence.
4. I have perused the document, which bears the date 6th of April 1959. It has been urged by the learned counsel appearing for the petitioner that the document had been mentioned by the petitioner in the course of his statement recorded in Court earlier and that as stated at the time it was customary to execute such documents evidencing the transfer of property. It is also urged that the document in a receipt and not a sale-deed. The terms employed in the concerned document, however, are that Ganga Sahai representing himself as the owner of the property stated that he had received Rs. 6,000/- towards its sale price and after the execution of the document no rights whatsoever where left with him. The document in its total effect is a sale-deed. It is covered by Section 17(1)(b) of the Registration Act and I hold that as the sale deed pertaining to immovable property sold for Rs. 6,000/-. It was compulsorily registerable. According to section 49 of the Registration Act no document required by Section 17 to be registered can be received as evidence of any transaction affecting the property unless it has been registered. Mr. Sikri appearing for the petitioner placed reliance on the proviso contained in Section 49 of the Registration Act 1908, which is:--
'Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under chapter Ii of the Specific Relief Act, 1877 or as evidence of part performance of a contract for the purposes of Section 53A of the Transfer of property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument.'
The learned counsel urges that the document was sought to be produced as evidence of a collateral transaction and being protected by the proviso could be allowed to be proved.
In order to support himself, he has cited (Karnam) Kandaswamy Pillay v. Chinabha Air 1921 Mad 82. In that case it was observed:--
'Applying this principle to the case before us the transaction of 1885, by whatever name it be called, cannot be set up as a transaction having effect of itself to transfer any interest in the property: but it is permissible to consider it, as showing the nature of defendant's subsequent possession-that it was not a mortgagee, but al full owner.'
In the case in hand the petitioner had come to court stating in paragraph 1 of the plaint:--
'(1) That the plaintiff is the owner of House No. 123, Opp. Electrical Police (sic) No. 47, Badarpur, Delhi, which was built about twelve years back'.
The nature of the possession asserted was that of an owner and no collateral transaction is sought to be proved in terms of the provision in order to establish any different nature of the plaintiff's possession of the property.
The next case cited for the petitioner is Padma Vithoba Chakkayya v. Mohd. Multani Air 1963 Sc 70. In paragraph 8 of the judgment it was observed:--
'The result of it is only that there was no re-transfer of title by Rajanna to the second defendant, and the family would in consequence continue to be the owner, and that is why the appellant is entitled to redeem. But the endorsement, taken along with the sale deed by the second defendant in favor of the first defendant is admissible in evidence to show the character of possession of the latter.'
In this case the document is not sought to be adduced in evidence in order to prove any collateral transaction establishing a variation in the character of the plaintiff's right to hold the property. The plaintiff's plea throughout remains that he was holding the property as an owner.
The document is a sale deed and being unregistered is inadmissible in evidence.
5. in order to assail the finding by the court below that the document on a white piece of paper could have been prepared at any time and was of a doubtful nature, on petitioner's behalf reliance is placed upon the observations contained in Har Ram Goenka v. Lachmi Singh : AIR1928Pat537 . The Patna High Court while dealing with order 13 Rule 2 of the Code observed:
'Now no doubt Rule 2 gives a discretion to the trial Court either to receive the document or to reject it if filed after the date of the first hearing of the suit; but is appears to me that if the Judge comes to the conclusion that the document so filed should not be received he should at once pass an order rejecting the document. Now this procedure was not adopted by the learned Subordinate Judge in this case. The result was that, the document remained in the custody of the court, from the 6th December, 1923 up till the 17th January, 1924 on which latter date the Court rejected the document. In my opinion the effect of not rejecting the document when produced for the first time by a party is that the court has in effect received it and it no longer lies in the power of the Court afterwards to reject the document on the ground that it was not produced in time.'
I am in respectful disagreement with the view expressed by the Patna High Court. There is no warrant in Order 13 Rule 2 of the Code to support the view that a document produced in the course of the trial of a suit will merely by lapse of time be deemed to have been permitted to be taken on record. Documents are required to be produced in terms of Rule 1 of Order 13 of the Code and Rule 2 gives an exceptional power to receive them later on but only on the court's recording the reasons for doing that. No lapse of time can be equated with the recording of reasons by the court. The interpretation relied upon by the petition's counsel is contrary to the statute.
6. Some observations made in Gyaniram v. Gulab Chand, , are also relied upon. In paragraph 6 it was observed by that High Court:
'Taking up the appeal so far as Gyani Ram is concerned, it was strenuously urged that the trial Court did not exercise sound discretion and consequently erred in preventing the defendants from bringing on record important documents, which were not such as could be concocted and about whose genuineness there was no doubt. Firstly, to support the case of partition, the defendant-appellant Laxminarain wanted to produce in court the registered deed of partition between the appellants, during his examination as a witness on 21-5-1954 but the court rejected the document on the ground that it was not produced at an earlier stage and was not included in the list of documents.'
There the court had to deal with the documents the genuineness whereof was beyond doubt. The Courts in that case were concerned with a registered deed of partition. In terms of the observation, quoted above. it remains open to a court to consider whether the document sought to be produced is genuine or of a suspicious nature. It can be legitimately considered as to whether the document is coming from an authentic source or is such as could have been easily prepared for purposes of the litigation.
7. Considering the scope of Section 115 of the Code, the Supreme Court observed in D.L.R. Housing and Construction Co. (P.) Ltd. v. Sarup Singh, : 2SCR368 .
'The position thus seems to be firmly established that while exercising the jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself'.
In this case the trial Court had the jurisdiction to try the dispute. It had the jurisdiction to reject a document or impound it as also the jurisdiction to receive it on recording reasons showing as to why its receipt as evidence was justified. The trial Court took the view that the document concerned could have been easily procured for purposes of litigation and that its genuineness was not beyond suspicion.
8. The impugned order does not call for any interference within Section 115 of the Code. The petition is dismissed.
There will be no order as to costs.
9. Petition dismissed.