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Dol Govinda Das Vs. Makbul Sekh's Infant heir and Ors. (08.04.1935 - CALHC) - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported inAIR1936Cal164,162Ind.Cas.91
AppellantDol Govinda Das
RespondentMakbul Sekh's Infant heir and Ors.
Excerpt:
evidence act (i of 1872), section 65 - document per se inadmissible can be objected to at any time--objection relating to method of proof, should be taken at earliest point of time--document not per se inadmissible--secondary evidence sought to be tendered--proper time to object--document alleged to have been lost--hearsay evidence to show loss--admissibility. - .....before the document ex. 1 was not objected to. at the time of the argument it was urged that the loss of the original being not proved, because the evidence of loss given by the witness umesh chandra mandal was only hearsay, the document ex. 1 cannot be received in this case.2. this objection has been given effect to by both the courts. i do not think that it was open to the defendants at the time of argument to object to ex. 1. it is an undoubted principle of law that a document which is per se inadmissible in evidence can be objected to at any time. if however the objection relates to the method of proof, that is, if secondary evidence, is sought to be put in instead of the original, the objection must be taken at the earliest point of time. if the document is not inadmissible per se.....
Judgment:

R.C. Mitter, J.

1. This appeal is on behalf of the plaintiff in a suit for recovery of arrears of rent with cesses and damages for the years 1334 to the Pous Kist of 1337 B.S. and also for enhancement of rent under Section 30 (b), Ben. Ten. Act. It is admitted that the plaintiff would be entitled to claim arrears of rent if he is able to prove that the Dar Putni interest under Touzi No. 1152 of the Murshidabad Collectorate, under which the tenancy is admittedly held, has vested in him. For the purpose of proving the purchase of the said Dar Putni interest, the plaintiff proved the certified copy of the conveyance dated 13th November 1929 by which he purchased the property. At the time when the certified copy of the conveyance was put in, no objection was taken to its going in. In fact, neither in the deposition nor in the list of documents admitted into evidence nor on the back of the document is there any note that the document was objected to. For the purpose of proving the conveyance the plaintiff examined a man of the name of Umesh Chandra Mandal, a Gomasta of the plaintiff's Koolgachi Kutchery who was an attesting witness to the original conveyance. In his examination-in-chief he said that the original was lost from the Mianpur Kutchery, that he attested the Kobala written by Raghu Nath and executed by Purna Babu who had signed it in his presence. 'The original of Ex. 1 was to this effect'. In the course of the cross-examination, the witness stated that 'the original of Ex. 1 is lost'. I heard that from Khajaddi Gomasta. He lives within the jurisdiction of this Court and is alive.' As I have stated before the document Ex. 1 was not objected to. At the time of the argument it was urged that the loss of the original being not proved, because the evidence of loss given by the witness Umesh Chandra Mandal was only hearsay, the document Ex. 1 cannot be received in this case.

2. This objection has been given effect to by both the Courts. I do not think that it was open to the defendants at the time of argument to object to Ex. 1. It is an undoubted principle of law that a document which is per se inadmissible in evidence can be objected to at any time. If however the objection relates to the method of proof, that is, if secondary evidence, is sought to be put in instead of the original, the objection must be taken at the earliest point of time. If the document is not inadmissible per se and if secondary evidence of it is sought to be tendered, the right time to object would be at the time when the document is put in and not either at the appellate stage or at the time of the argument. In this case if the objection had been taken at the proper time and in the proper form, the party who had put that document in, would have been able to adduce other evidence for the purpose of establishing that secondary evidence could be taken. With regard to the observation made by the Courts below that the loss has not been proved as the evidence of loss is merely hearsay, the following passage in Taylor on Evidence, Edn. 11, Vol. 1, p. 323, para. 430, is relevant. The learned author summarises the case law in England in these terms:

Indeed, it has been held that, in order to show that search has been made for a document so as to let in secondary proof of its contents, hearsay evidence of the answers given by persons who were likely to have it in their custody ought to be received.

3. On the above principle also I think that the lower Courts were not right in rejecting Ex. 1 from consideration. I hold therefore that it must be taken that the plaintiff has proved the devolution of title on him and he is entitled to the arrears of rent claimed. As the plaintiff has also prayed for enhancement of rent under Section 30 (b), Ben. Ten. Act, and as that question has not been investigated by any of the Courts below having regard to the view taken by them that the plaintiff's suit was liable to be dismissed as he had failed to prove his title, I think there should be a remand of the case to the Court of first instance in order that this further claim, namely, the claim for enhancement under Section 30 (b) may be considered, and I direct accordingly. The plaintiff is entitled to his costs of this Court. Further costs are left to the discretion of the Court of first instance.


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