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Bhaba Sundari Devi Vs. Taira Nasya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in6Ind.Cas.369
AppellantBhaba Sundari Devi
RespondentTaira Nasya
Cases ReferredMahomed Mahmood v. Safar Ali
Excerpt:
evidence act (i of 1872), sections 32, 34 - collection papers, admissibility of. - .....be for the lower appellate court to determine, with regard to the several individuals by whom the papers were prepared, whether they are dead or cannot be found; and, so far as that is the case, it will be right for the lower appellate court to take into consideration those papers under section 32 and not to reject them. we are, however, unable to say anything as to the weight to be attributed to them. that is a matter for the determination of the lower appellate court which is the final court of fact, and it will be for that court, on consideration of the documents, if admissible, to determine whether or not they established the plaintiff's case, either alone or along with the rest of, the evidence adduced.2. we must reverse tbe decree of the lower appellate court and send back the.....
Judgment:

Lawrence Jenkins, C.J.

1. This is a second appeal preferred by the plaintiff. The only point, with which we are concerned, is his objection that certain documents were improperly excluded. These documents are collection papers said to have been prepared by Hari Mohan Kar, Dhanulla Patwari, Radha Charan Mojumdar and Mohiny Chandra Ganguly. The plaintiff proposed to use these documents in evidence and as he could not call the individuals by whom they had been prepared as witnesses, he tendered them under Section 32 of the Indian Evidence Act. It was objected to this that these papers could only be used under Section 34 and that in the absence of those by whom they were prepared, the provisions of that section could not be called in aid by the plaintiff. This view has found favour with both the lower Courts, and it seemed to the lower appellate Court that the matter was concluded by the decision of this Court in Mahomed Mahmood v. Safar Ali 11 C. 407. There was also cited to the learned Judge of the lower appellate Court a decision of the Bombay Hitch Court, Rampyarabai v. Balajl Shridhar 28 B. 294 but he apparently thought that there was a conflict between this decision of the Bombay High Court and that of the Calcutta High Court in Mahomed Mahmood v. Safar Ali 11 C. 407, and, in that view he determined that he must be bound by the Calcutta decision. But his appreciation of the two cases was erroneous. There is really no conflict between them, because the Bombay case proceeded upon the proof of circumstances which brought Section 32 into play, while there were no facts in the Calcutta case that could have had that effect. In our opinion the fact that papers may be admissible under Section 34 of the Evidence Act does not pre-vent their also being admissible under Section 32 of the Act, if the conditions prescribed by Section 32 are established. There are expressions in the judgment of both the lower Courts which point to the view that such conditions have been established in this case, and. in that view we must send back the case, it will be for the lower appellate Court to determine, with regard to the several individuals by whom the papers were prepared, whether they are dead or cannot be found; and, so far as that is the case, it will be right for the lower appellate Court to take into consideration those papers under Section 32 and not to reject them. We are, however, unable to say anything as to the weight to be attributed to them. That is a matter for the determination of the lower appellate Court which is the final Court of fact, and it will be for that Court, on consideration of the documents, if admissible, to determine whether or not they established the plaintiff's case, either alone or along with the rest of, the evidence adduced.

2. We must reverse tbe decree of the lower appellate Court and send back the case for re-hearing in the light of these remarks.

3. The costs of this appeal will abide the result.

4. The judgment will govern the analogous appeals.

Doss, J.

5. I agree.


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