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Ramjiban Bhuttacharjee Vs. Ahmed Khan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in5Ind.Cas.537
AppellantRamjiban Bhuttacharjee
RespondentAhmed Khan
Excerpt:
civil procedure code (act v of 1908), section 139, and order ix, rule 5 - evidence act (i of 1872), section 57, clause 7 - process, service of, proof of--affidavit of identifier sworn before pleader honorary magistrate--signature of magistrate--judicial notice. - .....that proof an affidavit sworn in the bar library by the identifier before a pleader who is also an honorary magistrate. the munsif refused to accept the affidavit and directed the petitioner to have an affidavit sworn before the officer of the court appointed for that purpose. thereafter on the same date the petitioner appeared again before the munsif with an affidavit of the identifier sworn before another pleader honorary magistrate. the munsif refused to accept the affidavit and dismissed the suit for default.2. on the 28th august, the petitioner made an application to this court and a rule was issued on the opposite party to show cause why the suit by the petitioner should not be restored and the munsif directed to accept the affidavit filed on behalf of the petitioner, as a, good.....
Judgment:

1. The present petitioner instituted on the 27th July, 1908, in the Court, of the 4th Munsif, Tamluk, a suit for the recovery of money due on a bond. On the 8th August 1909, the plaintiff appeared in the Munsif's Court to prove service of process on the defendant and filed in support of that proof an affidavit sworn in the Bar Library by the identifier before a pleader who is also an Honorary Magistrate. The Munsif refused to accept the affidavit and directed the petitioner to have an affidavit sworn before the officer of the Court appointed for that purpose. Thereafter on the same date the petitioner appeared again before the Munsif with an affidavit of the identifier sworn before another pleader Honorary Magistrate. The Munsif refused to accept the affidavit and dismissed the suit for default.

2. On the 28th August, the petitioner made an application to this Court and a rule was issued on the opposite party to show cause why the suit by the petitioner should not be restored and the Munsif directed to accept the affidavit filed on behalf of the petitioner, as a, good and proper one on the grounds stated in the petition.

3. The Munsif has held that, as the pleader was not acting as an Honorary Magistrate when the affidavit was sworn before him and, as it was not known whether the signature was genuine, it would not be safe to take judicial notice of the signature and accept the affidavit. He further pointed out that he was unable to accept the affidavit as the rule of the High Court regarding the registration and defacement of stamps on the affidavit could not be complied with. He also held that as the Honorary Magistrate had not been sitting as to Court, no seal of the Court had been attached to the document as a voucher of the authenticity of the signature.

4. It has been argued in support of the Rule (1) that the Munsif erred in law in dismissing the suit without waiting for a year to enable the plaintiff to take further steps as provided in Order IX, Rule 5, of the new Code of Civil Procedure; (2) that under the provisions of Section 139 of the new Code any Court or Magistrate may administer the oath on an affidavit to the person swearing it and (3) that under Section 57, Clause 7, of the Indian Evidence Act, the Munsif was bound to take judicial notice of the signature of the Honorary Magistrate without further proof.

5. As regards, the first contention we are of opinion that the argument cannot be maintained as Order IX, Rule 5, is, in our opinion, only an enabling provision enacted for a special purpose only.

6. As regards the two other points we are of opinion that the contentions advanced on behalf of the petitioner go too far. The law, no doubt, provides that any Magistrate may administer the oath to a person swearing on affidavit and is wide enough to include any Honorary Magistrate. The law must, however, be interpreted according to reason and common sense, and in this view we consider that the Munsif was right in holding that in the case of an Honorary Magistrate the law contemplates that at the time when he administers the oath, he shall be acting in his official capacity as a Magistrate. We hold too that the provisions of Section 57, Clause 7, of the Indian Evidence Act must be interpreted in the same way. A Court is to take judicial notice of the signature of a person filling a public office because the circumstances surrounding the signing of the document are ordinarily such as in themselves to afford reasonable evidence of its authenticity. A signature of as Honorary Magistrate appearing on the record of a cots tried by him, or vouched for by the seal of the Court in which he had been sitting at the time he signed the document, fulfils all the ordinary conditions necessary to justify a Court in accepting it as authentic. But a signature by an Honorary Magistrate when not acting in his public capacity affixed to an affidavit bears none of these safe-guards and, in our opinion, the Munsif was perfectly right in holding that he was not justified in accepting it as genuine without further proof. We think, therefore, that the Munsif's attitude throughout was quite right.

7. We regret that we are not able to express the same opinion with regard to the petitioner. We are, however, inclined to believe that he was acting under the influence of his legal advisers, and the circumstances of this case seem to disclose a want of proper courtesy and respect to the Bench which merits, in our opinion, an expression of our disapproval. Apparently a practice of permitting affidavits to be sworn before pleader Honorary Magistrate has been allowed to grow up at the Munsifi. The Munsif in refusing to recognise that practice has, in our opinion, only endeavored to interpret the law correctly and to comply with the order of the High Court and in this endeavour he ought to have received assistance instead of opposition from the legal profession.

8. Had we been satisfied in this case that the petitioner had been acting on his own initiative in refusing to comply with the directions of the Court, we should not have felt inclined to, interfere with the order of the Court on this rule. But as it seems to us not impossible that the petitioner has been made use of' for the purpose of bringing to an issue the state of friction between the legal profession and the Bench we are inclined to think that he should not be made to suffer, provided that he now takes advantage of the opportunity which we propose to give him in complying with the directions of the Bench.

9. Accordingly we make the following conditional order in disposing of the rule. We direct that the rule be made absolute and the suit restored to the file provided that the petitioner do within one week of receipt of the record in the Munsif's Court put in a proper affidavit sworn in accordance with the direction of the Munsif before the officer of the Court appointed on that behalf. Should the petitioner fail to comply with this condition the rule will stand discharged.

10. We make no order as to costs.


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