Venkataswami, J.
1. The above civil revision petition was taken up for final disposal by one of us (the Hon'ble the Chief Justice). At the time of hearing the same, the learned counsel for the petitioner canvassed the correctness of the ruling in Manicka Mudaliar v. Shanmttgasundara Mudaliar 95 L.W 297.. Finding substance prima facie in the argument of the learned counsel for the petitioner, my Lord, the Chief Justice directed the civil revision petition to be posted before a Division Bench, and the matter is thus before us. We shall first set out the facts leading to the filing of the civil revision petition before considering the proposition of law laid down in Manicka Mudaliar's case supra.
2. The petitioner is the defendant in O.S 252 of 1981, on the file of the Court of the District Munsif of Tiruchengode. The respondent herein filed the said suit for declaration of his right to continue in possession of the suit property, as lessee and for permanent injunction restraining the petitioner herein and his adherents fro n forcibly evicting him except under due process of law. It is not necessary for our purpose to set out the details of the facts of the case. The suit was resisted on various grounds by the petitioner herein. Before the trial court, no oral evidence was let in by either side. However, both sides filed documents and they were admitted and exhibited as Exs. A1 to A24 on the side of the plaintiff and Ex. B1 to B12 on the side of the defendant. We may at once state that from the papers produced before us, there is nothing to show that the parties to the suit made any endorsement to the effect that the documents were marked subject to admissibility, proof and relevancy. There is also nothing to show that they made any endorsement to the effect that they admit the contents in the respective documents marked as exhibits. The trial court in paragraph 9 of the judgment has stated as follows:—
“No oral evidence was let in on both the tides, the plaintiff has filed as many as 24 documents, which are marked as Exs. A1 to A24, and the defendant has filed as many 12 as documents which are marked as Exs. B1 to B12”.
Thereafter, the trial court went into the nature of the documents and the contents therein, and on an appreciation of the same dismissed the suit accepting the case of the defendant. Aggrieved by the dismissal of the suit, the plaintiff preferred A.S 80 of 1982, on the file of the Court of the District Judge, Salem. Before the learned District Judge, the respondent herein who was the appellant—plaintiff before him, preferred I.A 32 of 1982. That application was for permission to withdraw the suit with liberty to file a fresh suit on the same cause of action. That application, namely I.A 321 of 1982 was stoutly opposed by the petitioner herein who was the respondent-defendant before the lower appellate court.
3. The learned District Judge, taking up the appeal as well as I.A 321 of 1982, passed a common judgment on 23rd December, 1982, and disposed of the appeal and the interlocutory application in the following manner:—
“A perusal of the judgment would go to show that either party did not let in any oral evidence and both the parties marked documents and argued the case. But in the latest decision in (1982) 95 L.W 297, it is held that the documents should be proved and marked by examining witnesses and documents marked by consent without examining witnesses cannot be looked into. So, as per the above decision it is clear that the present suit has to be remanded for fresh disposal after examining witnesses and proving the documents through the witnesses. So in my view the petitior has to be allowed. The point is found in favour of the appellant.
In the result, the appeal is allowed setting aside the judgment and decree of the trial court and permitting the plaintiff to withdraw O.S 252 of 1981, on the file of the District Munsif, Tiruchengode, with liberty to file a fresh suit on the same cause of action and the costs in the suit would abide and follow the result of the suit to be filed.”
It is against the above disposal of the appeal and I.A by the learned District Judge, the present civil revision petition has been filed.
4. The argument of the learned counsel for the petitioner is that the principle of law laid down in Manicka Mudaliar's case, supra, is too wide and requires reconsideration. In any event, it is the contention of the learned counsel for the petitioner that the lower appellate Court ought not to have allowed the appeal by setting aside the judgment and decree of the trial court on the only ground that the documents marked in the trial court by consent could not be relied on as there was no oral evidence to prove the contents of the documents exhibited. The learned counsel contended that when documents were marked by consent, not only there was no further need for a formal proof of the documents, but also it would amount to proof of whatever the documents contained. In support of his contention, he has relied on the following cases, Jainab Bibi Saheba v. Hyderally Sahib 43 Madras. 609., Latchayya v. Seetaramayya A.I.R 1925 Mad. 257., Narasayya v. Krishnamurthi A.I.R 1928 Mad. 1255., Purushothama Reddiar v. Peruamal A.I.R 1972 S.C, 609, Kanchanganga Co., Ltd. v. State A.I.R 1973 Cal. 325., and Harnath v. Dhanoo Devi A.I R. 1975 Cal. 98.. Contending contra, the learned counsel for the respondent-plaintiff submitted that the lower appellate Court is right in applying the law laid down in Manicka Mudaliar's case supra, and allowing the application as well as the appeal. According to the learned counsel, even though documents were marked in the trial court by consent, that will not absolve the respective parties from proving the contents of the documents so exhibited. According to him, the consent given for marking the documents will only absolve the parties from formally proving the documents and nothing beyond that. In support of this submission, the learned counsel relied on the following judgments. Palaniappa Chettiar v. Bombay Life Assurance Co., Ltd. 1947-2-MLJ 535, S.T Khimahand v. Satyam A.I.R 1971 S.C 1865., and Karuppanna Thevar v. Rajagopala Thevar 1971. 2-MLJ 260.
5. After going through the various citations given by the learned counsel on both sides, we find that both the learned counsel have put their respective propositions in the extremes. The correct proposition of law, we find, has already been laid down at least by two Division Bench judgments of this Court to which we will make referenct immediately. Therefore, the issue is not res integra. In our view, the principle of law laid down in Manicka Mudaliar's case is not wholly erroneous, but requires modification in the light of the earlier Division Bench judgments of this Court. In our view, it is unnecessary for us to refer to the views of other High Courts on this matter as the Division Bench judgments of this Court are binding on us and we are also in respectful agreement with those two Division Bench judgments. The principle laid down by the Supreme Court in P.C Purushothama Reddiar v. S. Perumalrespondent, supra relied on by the learned counsel for the petitioner, has been correctly appreciated in one of the Division Bench judgments of this Court. We do not, therefore, propose to discuss the matter elaborately except to refer to relevant passages from the two Division Bench judgments of this Court which succinctly lay the proposition of law. The two Division Bench judgments of this Court are R.M.Y.R.M Paianiappa Chettiar and others v. The Bombay life v. Assurance Co., Ltd., etc. supra and Karuppanna Thevar (died) and athers v. Rajagopal Thevar and others supra. In K.M.Y.R.M Palaniappa Chettiar and other v. The Bombay Life Assurance Co., Ltd., etc. the learned Judge, while rejecting an argument similar to the one advanced by the learned counsel for the respondent-plaintiff herein, held as follows:—
“It is futher argued that both these documents were properly admitted in evidence, because the plaintiffs permitted them to be marked by consent. Permitting a document to be marked by consent only means that the party consenting is willing to waive his right to have the document in question proved i.e the plaintiffs were prepared to admit that Ex. D-7. C Was what it purported to be; a certificate by Dr. Natarajan sent to the defendant company in response to the letter of the Company to the plaintiff asking for such a ceitificate, and that Ex. P. 2 was the reply of Dr. Natarajan to the questionnaire sent by the Company to the doctor. Agreeing to the document being marked by consent certainly did not mean that the plaintiff accepted the correctness of every statement made by Dr. Natarajan in Ex. P2 and D.-7C. If the plaintiff had expressly or impliedly said at any stage of the suit that they would accept the statements made by Dr. Natarajan in Ex. P2 and D-7C, as evidence of the correctness of the allegations contained therein, the case of the defendant company would have been very much stronger, though no decision that we have seen has gone so far as to say that even with the consent of the other side, such documents as Ex. P2 and D7-C could be accepted is evidence of the correctness of the statements made therein. The nearest approach to that is the decision reported in Jainab Bibisaheba v. Hyderally Sahib in which the learned Judges had to consider whether deposition made in a prior proceeding could be used as evidence by consent of parties in a later proceeding and they held that although S. 33 did not expressly permit this to be done, yet, they considered that in a civil action the party could waive his right to have such evidence excluded in the absence of Strict compliance with all the terms of S. 33. All the teamed Judges did not, however, base their decisions on the same grounds. There are certain observations in the judgment of Krishnan, J.—and perhaps also in the judgment of Courts Trotter, J which suggest that in a civil action a statement by a party on any relevant matter could be admitted with the consent of the other side. That question, however, does not arise in this case; for, we are satisfied that the plaintiffs did not agree to accept the statements as evidence of the correctness of the matters contained therein. All that can be said is that they did not object during the hearing of the suit to their being admitted in evidence.”
The later Division Bench judgment duly noticed not only the earlier Division Bench judgment of this Court, but also the judgment of the Supreme Court in P.C Purushothama Reddiar v. Perumal supra. The later Division Bench judgment, while rejecting a contention similar to the one advanced by the learned counsel for the respondent has held as follows:—
“The learned counsel for the respondents relied on the fact that this document was marked by consent on 14th February 1968. The learned counsel sub-mitted as a proposition of law that when a document is marked by consent not only there was no further need for a formal proof of the document but also it would amount to proof of whatever the document contains. In support of this contention, the learn, ed counsel relied on the decision of the Supreme Court in P.C Purushotham v. Perumal, That was a case in which the point in controversy was as to whether the respondent in that case held four election meetings admitted by him in his counter affidavit in the election petition. It was found that the practice in Pondicherry was that before every meeting the person who wants to hold that meeting will have to apply to the Inspector of Police for permission to hold the meeting mentioning the date, place and time of the meeting. The unsuccessful candidate who filed the election petition marked four applications by the respondent for grant of permission for the meetings and the orders made thereon by the Inspector of Police granting such permissions. The Inspector of Police was examined as a witness and he spoke to the factum of filing of those applications and the grant of permission by him. He also stated that when such a permission was given by him, he used to depute a Head Constable to cover that meeting and report about the same. The reports of the Head Constable received with reference to the four meetings were filed as evidence through the Inspector of Police. The Supreme Court relied on these reports as evidencing the holding of the meeting on those particular days. It was argued before the Supreme Court that the reports of the Head Constable were inadmissible in evidence on the ground that the head constable who covered those meetings had rot been examined. The Supreme Court pointed out that the reports were marked by consent, and, therefore, it is not open to the respondent to object to their admissibility. With reference to the argument that though the reports in question are admissible because of the consent, the court cannot look into the contents of those documents, the Supreme Court observed that once the document is properly admitted the contents of that document are also admitted in evidence though those contents may not be conclusive evidence. It could be seen from the facts that so far as the reports of the Head Constable are concerned, the Inspector of Police himself spoke to the fact that he deputed the Head Constable to cover the meetings and report about the same. He produced the original reports submitted to him by the Head Constable. The Inspector had also spoken to the fact that those reports disclosed that as per the permission granted the meetings were held. It has to be noted that only with reference to the factum of holding the meeting that those reports were relied on by the Supreme Court and not for any of the other statements as to what transpred or what was spoken to in that meeting. Since the reports themselves were filed through the Inspector at whose instance the head constable covered the meeting, the Supreme Court considered that would be admissible to prove the holding of the meeting on those days. Even here, the Supreme Court hastened to add that those contents may not be conclusive evidence. (Para 5)… — … The consent given by a party for that king a document does not dispense with either the proof of contents of the document or the truth or otherwise of the contents. In this connection we may refer to the decision of a Division Bench of this Court reported in Palaniappa Chettiar v. Bombay Life Assurance Co. Ltd., which considered the effect of marking a document by consent. That was an appeal from a suit filed against an insurance company for payment of an amount insured on the death of the insured. The Insurance company produced the documents, one was a report given by the Doctor who attended on the deceased at the time of his death and the second was the answers given by the same doctor for a questionnaire sent by the Insurance Company. These two documents contained some materials as to the ailments of the Insured which are of such a nature that if they hid been disclosed at the time when the policy was issued, the Company would not have accepted the proposal. These two documents were marked by consent. The Doctor who issued the certificate was not examined. The question for consideration was whether the contents of the documents could be relied on by the Company against the plaintiff. This Court held that permitting a document to be marked by consent only means that the party consenting is willing to waive his right to have the document in question proved, that is the plaintiff was prepared to admit that the documents were what they purported to be, namely, a certificate given by the Doctor and sent to the defendant and a reply given by the Doctor to the questionnaire sent by the company But agreeing to the document being marked by consent did not mean that the plaintiff accepted the correctness of every statement made by the Doctor in those two documents. The correctness of the allegations contained in the certificate given the doctor and in his reply would have to be proved only in the recognised ways as contemplated in the Evidence Act. With great respect, we are in entire agreement with this view of the learned Judges.” (supra)
6. In Manicka Mudaliar's case supra, the learned Judge has held as follows:—
“By merely marking the documents by consent, the court is not obliged to look into the contents unless those documents are formally proved in accordance with the provisions of the Indian Evidence Act.
(Emphasis supplied)
We think, with respect to the learned Judge, the above proposition is too wide and needs modification. The correct position as found by the earlier Division Bench approved by the later Division Bench is as follows:—
“Permitting a document to be marked by consent only means that the party consenting is willing to waive his right to have the document in question proved.”
The learned single Judge, in Manicka Mudaliar's case, supra, has taken the view that formal proof also is required notwithstanding the fact that the document was marked by consent. To that extent, the learned single Judge with respect, is not right.
7. Applying the principles laid down by the two earlier Division Bench judgments of this Court, we find that the order of that lower appellate court cannot be sustained, I There are many documents marked by consent which relate to earlier proceedings which are between the same parties In the list of exhibits, at the end of the judgment of the trial court, there may also be documents which can be relied upon applying the principles laid down in the earlier two Division Bench judgments of this Court.
8. In so far as the application for withdrawal of the suit is concerned, it was not possible for the plaintiff to show how the requirements of P23, R. 1(3) of the Civil Procedure Code were satisfied to enable him to withdraw the suit with liberty to file a fresh suit on the same cause of action. The order of the lower court permitting withdrawal of the suit is therefore unsustainable.
9. For these reasons, the revision petition is allowed, we set aside the judgment of the lower appellate court, and the appeal is remanded for fresh disposal by the lower appellate Court in accordance with the above discussion. There will be no order as to costs.
VCS.