SHRIRAM S/O NARAYANLAL AGRAWAL AND ANOTHER v. DEVENDRA AJMERA

2] The petitioners - original applicants in Mense Profit Case No. 03/2012 have challenged the orders at Annexures 6 and 10 whereby the learned trial Court refused to give exhibit to the rent receipts as well as the certified copy of leave and license agreement. The petitioners filed S.C.S. No. 82/2007 against the respondent for recovery of possession which was decreed and the respondent was directed to vacate and handover the possession of the suit house within 1 month from the date of the order i.e. from 28/06/2012. It was further directed that enquiry into mesne profit under Order 20 Rule 12 of the Code of Civil Procedure be held from the date of filing of the suit till the actual delivery of possession.

3] In pursuance of the above order, the petitioners on 21/07/2012 filed an application for enquiry of mesne profit under Order 20 Rule 12 of the Code of Civil Procedure. An affidavit of examination-in-chief of one Mr. Damodar Agrawal S/o Kisanlal Agrawal was filed wherein he claimed to be deposing on behalf of his wife Smt. Meena Damodar Agrawal who is a Pardanashin Lady and he placed on record the special power of attorney executed by Smt. Meena Damodar Agrawal. Along with the special power of attorney, Mr. Damodar Agrawal placed on record copies of rent receipts which the learned advocate for the petitioners / applicants requested the trial Court to mark as exhibit. The said request was objected by the learned advocate for the respondent / non-applicant. The learned trial Court refused to exhibit the rent receipts.

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4] The petitioners, thereafter, filed an application (Exh. 51) stating that the applicants had obtained certified copy of leave and license agreement dated 10/08/2017 executed between Girdharilal Bhojwani and M/s. Pace Tel Systems Pvt. Ltd. in respect of the property situated near the suit property, along with extract of Index-II register. Since these being the registered documents, a request was made to exhibit both the documents. The learned trial Court, vide order dated 02/12/2017, exhibited the Index - II being a public document, however, rejected the prayer to exhibit the leave and license agreement as the same is not a public document. Being aggrieved by the said order as well as refusal on the part of the learned trial Court to exhibit the rent receipts, the present petition is filed.

5] Heard learned advocate for the petitioners and learned advocate for the respondent. Perused the record of the petition and grounds raised in the same.

6] Learned advocate for the petitioners had placed reliance on Sections 51 and 57 (5) of the Registration Act, 1908 (for short "the said Act") to urge that the leave and license agreement being the certified copy in terms of Section 57 (5) of the said Act, in view of Section 74 of the Evidence Act, 1872 (for short "the Act of 1872") the same is a public document. In terms of Section 76 of the Act of 1872, the certified copies of the public documents

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are admissible in the evidence and as per Section 77 of the Act of 1872, the certified copies of the public documents can be produced in proof of the contents of the public document. It is submitted that since the leave and license agreement is required to be compulsorily registered under the said Act, a certified copy of the same can be treated as public document and is admissible in the evidence without formal proof of the same. He, therefore, contends that the learned trial Court has committed an error in refusing to exhibit the leave and license agreement. He further argues that since the power of attorney in favour of Mr. Damodar Agrawal executed by Smt. Meena Damodar Agrawal was filed after filing of the affidavit in lieu of examination-in-chief of Mr. Damodar Agrawal, Smt. Meena Damodar Agrawal has ratified the act of Mr. Damodar Agrawal of filing the affidavit in lieu of examination-in-chief. In that view of the matter, the principal i.e. Smt. Meena Damodar Agrawal is bound by the act of the power of attorney holder. It is argued that on conjoint reading of Section 57 (5) of the said Act and Sections 65 (f) and 76 of the Act of 1872, it is clear that the certified copy of the leave and license agreement which is compulsorily required to be registered and entered in the books and indexes maintained under the said Act, issued under the sign and seal of the registering officer is permitted to be given in evidence of the content of the document, so also the certified copy of public document can also be given in evidence under Section 65 (e) of the Act of 1872. In support of his contention, he relied upon the ratio in Jugraj Singh and another vs. Jaswant Singh and others 1970 (2) SCC 386, in

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Land Acquisition Officer & Mandal Revenue Officer vs. V.Narasaiah (2001) 3 SCC 530, in Cement Corpn. of India vs. Purya and others (2004) 8 SCC 270 and in Hindustan Paper Corporation vs. Kanta Manocha 2013 SCC OnLine Del 4232. He, therefore, contends that the learned trial Court has misconstrued the provisions of the said Act and the Act of 1872 and has committed an error in not exhibiting the documents. He, therefore, prays for setting aside of the impugned order and to exhibit the documents.

7] Per contra, learned advocate for the respondent has vehemently opposed the prayer contending that the leave and license agreement is not a public document and it is a private document. The documents sought to be exhibited by the petitioners were not connected with the suit property. Hence, the contents of these documents cannot be proved as they are private documents. He further argued that the bank statements of Smt. Meena Damodar Agrawal cannot be proved by this witness though a power of attorney holder and ratification of deposition cannot be there. The affidavit of Smt. Meena Damodar Agrawal does not refer to the power of attorney and the learned trial Court has rightly rejected the prayer of the petitioners to exhibit those documents. In support of his contention, he placed reliance in Kumarpal N. Shah (since deceased) through L.Rs. Mrs. Tarunbala Kumarpal Shah and others vs. Universal Mechanical Works Pvt. Ltd., Mumbai and others 2020 (1) Mh.L.J 442. He states that there is no merit in the writ petition and the same may be dismissed.

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8] There is substance in the argument of learned advocate for the respondent that the leave and license agreement is not a public document. It is necessarily a private document. Though it is required to be compulsorily registered under the said Act, that by itself does not make it a public document and its certified copy is not by itself admissible in evidence. Reliance placed by learned advocate for the petitioners on Sections 51 and 57 (5) of the said Act and Sections 65 (f), 74 and 77 is misconceived and misplaced. Merely because the leave and license agreement is required to be registered compulsorily, that by itself does not make it a public document as contemplated under Section 74 (2) of the Act of 1872. The fact remains that the said leave and license agreement is not connected with the suit property and is not in between the parties to the mesne profit. The Index-II copy being a public document was rightly exhibited by the learned trial Court. The leave and license agreement was not exhibited as the learned trial Court rightly held that it is a private document. It is further observed by the learned trial Court that there is no pleading by the applicants that the original of leave and license agreement is lost or destroyed.

9] So far as the five rent receipts are concerned, it is clear from the record that after filing affidavit of Mr. Damodar Agrawal, the power of attorney was executed by Smt. Meena Damodar Agrawal. The affidavit of Mr. Damodar Agrawal does not mention anything about the power of attorney, so

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also there are no signatures of Mr. Damodar Agrawal on the rent receipts. In these circumstances, I find that the learned trial Court has rightly rejected the prayer for exhibiting the said rent receipts.

10] The ratio relied upon by the learned advocate for the petitioners in Jugraj Singh (supra) is on the point of ratification of the earlier transaction by execution of subsequent power of attorney. It was held that "ratification is thrown back to the date of the act done, and the agent is put in the same position as if he had authority to do the act at the time the act was done by him." Land Acquisition Officer & Mandal Revenue Officer (supra) is the authority wherein the provisions of the Land Acquisition Act, Sections 23 and 51-A were considered. It is held that "under Section 51-A of the LA Act, it is open to the Court to act on the documents regarding the transaction recorded in such documents. However, this will not prevent any party who supports or opposes the said document or the transaction recorded therein to adduce other evidence to substantiate their stand regarding such transactions. But it is not possible to hold that even after the introduction of Section 51-A the position would remain the same as before." Cement Corporation of India Ltd. (supra) is also the case under the Land Acquisition Act wherein it was held as under:-

"The above view of the Court in Kurra Sambasiva Rao's case, in our opinion, is not the correct position in law. Even prior to the insertion of Section 51-A of the Act the provisions of the Evidence Act and the Registration Act did permit the production of a certified copy in evidence. This

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has been clearly noticed in the judgment in Narsaiah's case wherein the court relying on Sections 64 and 65 (f) of the Evidence Act read with Section 57(5) of the Registration Act held that production of a certified copy of a registered sale document in evidence was permissible in law even prior to insertion of Section 51-A in the LA Act. We are in agreement with the said view expressed by this Court in Narasaiah's case."

11] In Hindustan Paper Corporation (supra), the Hon'ble Supreme Court has observed that "judicial notice has to be taken of the difficulties in finding evidence of letting of similar premises, specially residential, and that the owner as well as the tenants of residential premises hesitate from disclosing the terms of occupation to strangers." It is further observed that

"strict rules of evidence and proof cannot be applied to 'enquiry' into mesne profits." There cannot be any dispute on the ratios laid down in the above referred judgments, but these judgments are rendered in the different facts and they do not help the petitioners.

12] Learned advocate for the respondent has rightly placed reliance in Kumarpal N. Shah (supra) to contend that the leave and license agreement is a private document. Learned Single Judge of this Court (Dama Seshadri Naidu, J.), after quoting Section 74 of the Act of 1872, in para nos. 25, 26, 20 and 41 observed as follows:-

" 25. And all other documents, as section 75 states, are private. To begin with, the public documents enjoy a statutory presumption under Section 114 of the Evidence

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Act. Public documents are prepared by a public servant in discharge of his public duties; and they are available for inspection to public, in public office, during appointed time, sometimes for a fixed fee. A certified copy of a public document can be admitted in judicial proceedings and is, usually, proved by secondary evidence. That said, the Court is bound to presume its genuineness from "the duly certified secondary copy".

26. On the other hand, if a document is private, it suffers from certain shortcomings. But once it is admitted in any judicial proceeding, it cannot be treated as inferior evidence. For getting a private document admitted, its original - the primary evidence - is the best choice, and its marking must be through its author. If it is secondary, without proving one of the conditions laid down under section 65 of the Act, the secondary evidence of a private document cannot be admitted in judicial proceedings.

40. In fact, this Court, in Vithoba Savlaram vs. Shrihari Narayan, AIR 1945 Bom. 319, has held that once a private document has been kept in official record with entry about their execution, say by a registering authority, that document per se does not become a public document. But the entry in the official record in relation

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to that document does. That said, I will note that under Order 18, Rule 4 of Civil Procedure Code, certain documents need not be placed before the Court as was contemplated either under Order 7, Rule 14 or under Order 8, Rule 1A of Civil Procedure Code, besides Order 13, Rule 1. Instead those could be produced for cross- examining a witness if the witness is its author or the originator, in the generic sense.

41. Here the alleged registered 'leave and license agreement' still remains a private document that its registration does not cure the mischief under section 74 of the Act. Its marking through PW1 does not amount to its proof, though. I reckon the other documents are public documents or private documents sought to be marked through PW1, from whom they originate. At any rate, over the documents 1 and 2, the petitioner's gave up their contention."

13] In the light of the observations quoted herein above, it is clear that merely because the leave and license agreement which is a private document is kept in official record with an entry about its execution by registering authority, that document by itself does not become a public document. The original entry in the official record of the said document is a

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public document and the leave and license agreement sought to be exhibited by the petitioners is a private document. It is to be noted here that the leave and license agreement sought to be exhibited by the petitioners is not connected with the suit property. The learned trial Court has by giving proper reasoning rejected the prayer of the petitioners for exhibiting the rent receipts and leave and license agreement. No fault can be found with the orders passed by the learned trial Court and no case is made out by the petitioners for exercise of the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India. Hence, the following order is passed:-

O R D E R

(a) The writ petition is dismissed.

(b) Rule is discharged.

(c) There shall be no order as to costs.

JUDGE

ANSARI

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