Maj. Gen. A.K. Luthra v. Malkit Mamrath

Dalveer Bhandari, J.:— The plaintiff has filed a suit for possession and for recovery of Rs. 1,50,000/-, as 1. damages/compensation for use and occupation. After pleadings were complete, the court framed issues and recorded the evidence in this case and thereafter the suit was placed for final arguments before the court. During the course of the final arguments the plaintiff has moved an application under Order 7 Rule 18 and Order 13 Rule 2 read with Section 151 of the Code of Civil Procedure.

2. In this application, the plaintiff has prayed that leave be granted to him to produce and/or file certified copy of the letter dated 27th June, 1989 written by Assistant Commissioner of Income Tax, Investigation Circle-II(1), New Delhi, to the plaintiff, and a copy thereof marked to the defendant herein. By the said letter, Income tax authorities have revoked the notice under Section 226(3) of the Income Tax Act, 1961 by lifting the attachment of Rs. 6 lakhs which was lying deposited in the plaintiff bank at Chandigarh.

3. It is prayed that certified copy of this order be taken on record as evidence in accordance with the provisions of Section 77 of the Indian Evidence Act, 1872. It has been further averred in the application that letter dated 27th June, 1989 was not in power and possession of the plaintiff when the suit was instituted because the said letter (dated 27th June, 1989) was received by the plaintiff after the filing of the suit and recording of the evidence. Therefore, the said letter could not be produced by the plaintiff at the time of the institution of the suit or during the trial.

4. The plaintiff has also averred in the application that he reasonably and bona fide believe that the defendant could not dispute the actual date of revocation of attachment of Rs. 6 lakhs inasmuch as this is an act of a public officer and is within the knowledge of the defendant. However, during the course of submissions, the defendant, at the bar disputed the date of revocation of the attachment. Therefore, the plaintiff felt that it is imperative that the said letter dated 27th June, 4989 be produced and taken on record as evidence.

5. It has been further mentioned in the application that for an effective and proper adjudication of the case, the said letter dated 27th June, 1989 is an essential piece of evidence and in the interest of justice, the same be taken on record.

6. Reply to this application has been filed by the defendant. The defendant has taken preliminary objection that such an application is not maintainable when the final arguments are being heard. It is further submitted that the applicant cannot be allowed to take advantage of his own wrong in not producing the alleged documents sought to be placed on record at this stage without affording an opportunity to the defendant. It is further mentioned that the provisions of order 7 Rule 18 of the Code of Civil Procedure are not applicable to the present set of facts and hence reference to the same is misconceived and not sustainable. It has been further submitted in reply that the documents sought to be placed on record is not a document referred to under Section 76 of the Indian Evidence Act,"1872 and as such the document cannot be allowed to be taken on record, nor can be read in evidence until and unless the document is formally proved in accordance with provisions of law. It has been further submitted in reply that the letter sought to be placed on record was allegedly available with the applicant as on 27th June, 1989 which for the reasons best known to the plaintiff, was not placed on record nor the witness was confronted in the cross-examination. In the reply, it is also submitted that the genuineness of the documents, the context in which the same has been written and the manner or the tenor in which the said document came to be written and is sought to be placed on record at the time of final arguments leads to a presumption that in case the document was sought to be proved formally by calling the signatory of the letter, the same would have gone against the applicant and as such the aforesaid document cannot be allowed to be taken on record for the purposes of supporting the case of the applicant at this stage and the application is liable to be dismissed. It has been further mentioned in the reply that reasons have not been given for non-production of the document at the relevant time as contemplated under Order XIII Rule 2 of the Code of Civil Procedure. The defendant while replying on merits submitted that the defendant is bound to be prejudicially and adversely affected in case the letter dated 27th June, 1989 is permitted to be placed on record or for that matter read in evidence or is considered in the context in which it has been brought without the signatory of the letter being subjected to the test of cross-examination.

7. In reply, it is also mentioned mat the applicant ought to have placed the document as and when it came into his hand or when the evidence was going on. Consequently, at this stage, the plaintiff cannot be permitted to place the said document on record. It is also submitted that the plaintiff ought to have taken steps to prove his case that lacuna, if any, in this case cannot be filled in now. The matter has been argued at length. Learned counsel for the plaintiff submitted that letter dated 27th June, 1989 is a certified copy of the letter of the Income Tax Department which according to the provisions of the Indian Evidence Act, 1872 ought to be taken on record. Mr. Kapur, learned counsel for the plaintiff submitted that the document in question being a certified copy of the public document is not required to be proved. He further submitted that the public document has been certified in accordance with the provisions of Section 76 of the Indian Evidence Act, 1872. Section 74 of the Act defining public documents reads as under:—

“Public documents.—The following documents are public documents—

(1) documents forming the acts or records of the acts—

(i) of the sovereign authority

(ii) of official bodies and tribunals, and

(iii) of public officers, legislative, judicial and executive {of any part of India or of the Commonwealth}, or of a foreign country;

(2) public records kept {in any State} of private documents”

8. Learned counsel submitted that according to the definition of “public document”, the instant letter dated 27th June, 1989 is fully covered in the said definition of the public document and the same has been certified as envisaged according to the provisions of Indian Evidence Act.

9. Mr. Kapur, learned counsel for the plaintiff has also drawn my attention to Section 76 and 77 of the Indian Evidence Act, 1872. Both these sections are reproduced as under:—

“76. Certified copies of public documents.- Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document of part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorised by law to make use of a seal; and such copies so certified shall be called certified copies.

Explanation.- Any officer who, by the ordinary course of official duty, is authorised to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.

77. Proof of documents by production of certified copies.—Such certified copies maybeproducedinproofofthecontentsof the public documents or parts of the public documents of which they purport to be copies.”

10. Learned counsel for the plaintiff submitted that no injustice or prejudice would be caused to the defendant if the document in question is taken on record. To strengthen his arguments, learned counsel has placed reliance on Katikineni Venkata Gopala Narasimha Rama Rao v. Chitluri Venkataramayya, A.I.R 1940 Madras, 768. The Full Bench of Madras High Court has observed that “profit and loss statement and statement showing details of net income filed in support of return of income furnished under S.22, Income-tax Act, are public documents with reference to Section 74, Indian Evidence Act, 1872, of which certified copies would be admissible under Section 65(e) Evidence Act.

11. Learned counsel has also placed reliance on Banamali Das v. Rajendra Chandra Mardaraj Harichandan and others, (1976) 1 S.C.C p.54 at p.57 In para 12 of the said judgment, the Supreme Court has held that,

“Section 76 provides that every public officer having the custody of a public document which any person has a right to inspect shall give that person a copy of it together with the certificate that it is a true copy of the document. By Section 77, such certified copies may be produced in proof of the contents of the documents of which they purport to be copies. The check memo which is required to be maintained by the officer-in-charge of the counting table is a document forming record of the acts of a public officer and therefore a certified copy thereof given by the Collector in whose custody the document is kept, can be admitted in evidence in proof of the contents of the original document.”

12. The Learned counsel has also placed reliance on Balwant Singh Bhagwan Singh and another v. Finn Raj Singh Baldev Kishen, AIR 1969 Punjab and Haryana, 197. In this case, the court held as under:.

“Promptitude and despatch in the dispensation of justice is a desirable thingbutnotatthecostofjustice. All rules of procedure are nothing but handmaids of justice. They cannot be construed in a manner which would hamper justice. As a general rule, evidence should never be shut out. The fullest opportunity should always be given to the parties to give evidence if the justice of the case requires it. It is immaterial if the original omission to give evidence or to deposit process fee arises from negligence or carelessness. However, negligent or careless may have been the first ommission to give evidence or to deposit process-fee, it should be allowed if that can be done without injustice to the other side. There is no injustice if the other side can be compensated by costs.

13. Learned counsel for the plaintiff submitted that the fullest opportunity should be given to the parties to give evidence if the justice of the case requires it and any negligence or delay in filing the documents must be condoned. There is no injustice if the other side can be compensated by costs.

14. Mr. Kapur, Learned counsel for the plaintiff in the rejoinder mentioned that the plaintiff being assessee in default has a right to inspect the record and obtain certified copy, therefore, he further submitted that by the order of the Income tax department, the amount of the plaintiff was attached and remained under attachment for several years.

15. He further submitted that the document in question came into existence only in 1989 much after the suit was filed. The plaintiff could not have placed this document on record at the time of filing of the suit or recording of the evidence. Mr. Kapur reiterated his prayer that in the interest of justice, the document may be taken on record, particularly, when no injustice or prejudice is caused to the defendant.

16. Mr. P.N Lekhi, learned counsel appearing for the defendant opposed the application and submitted that at this stage this document ought not to be taken on record. The document has been in possession of the plaintiff at least immediately after 27th June, 1989 and there was no justification for the plaintiff for not producing that document immediately thereafter. Mr. Lekhi further submitted that the relief claimed by the plaintiff is not a matter of right. The court has to exercise discretion according to law.

17. Mr. Lakhi has also placed reliance on Section 76 of the Indian Evidence Act, 1872, and submitted the public document is one which any person has a right to inspect and under the Income tax Act, no one has a right to inspect except the assessee and unless the ingredients of Section 76 are fulfilled, the documents cannot be termed as public document and when the document is not a public document, then merely filing certified copy without proving the same in accordance with the provisions of the Indian Evidence Act, 1872 cannot be taken on record.

18. According to Learned counsel for the defendant, the document could not be obtained legally because income tax proceedings are privileged.

19. Mr. Lekhi, has placed reliance on Prakash Rai v. J.N Dhar AIR 1977, Delhi, 73. This judgment has been cited to demonstrate that mere production of a certified copy of a public document does not prove the same as the question of its admissibility involves that the contents must relate to a fact in issue or a fact relevant under the various sections of the Evidence Act and that if the contents are statements of such facts and are not acts forming such facts, the statement must be relevant under Sections 35 to 38 of the Evidence Act. In this judgment, the court has also observed that Section 77 of the Indian Evidence Act, 1872 cannot be read in isolation. It has to be given harmonious interpretation in the light of the other provisions of the statement, otherwise, it would render those provisions nugatory.

20. Mr. Lekhi also placed reliance on Smt. Kunti Devi and others v. Radhey Shyam, AIR 1978 Allahabad, 185. In this case, it has been held that “mere fact that the documents are forthcoming from a Government department and bear its seal will not dispense with the necessity of formally proving those documents.”

21. I have considered rival contentions of the parties. In view of the law which has been crystalized by large number of judgments, the position which emerges is clear that the parties must be granted fullest opportunity to lead evidence in the interest of justice even if there has been delay in filing the documents, particularly when no injustice or prejudice is caused to the other side.

22. All rules of procedure have been made to serve the interest of justice. In dispensation of justice, it is imminently desirable that courts must keep doors open and permit light coming from any quarter at any stage, so long as no prejudice or injustice is caused to the other side.

23. I have considered the nature of the document which the plaintiff wants to bring on record in the background of the facts and circumstances of this case. In my opinion, since the document is a certified copy of the order of the Income Tax Department, no formal proof is required according to the provisions of the Indian Evidence Act, 1872. In my considered view, no real prejudice or injustice is likely to be caused to the other side if the document in question is taken on record at this stage.

24. Mr. Lekhi, Learned counsel for the defendant is fully justified in making the grievance that there is no justification for not producing the document on record immediately after 27th June, 1989. Undoubtedly, the plaintiff has been negligent and careless. However, in the interest of justice, I allow this application subject to costs of Rs. 5500/- to be paid by the plaintiff to the defendant for causing avoidable delay and inconvenience to the defendant. The application is accordingly disposed of.