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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
MANISH PITALE, J.
SUSHILKUMAR MANDANLAL GANEDIWAL - Appellant
Versus
VIJAYKUMAR MANDANLAL GANEDIWAL - Respondent
Writ Petition No. 79 of 2017
Decided on : 31-01-2019
Indian Evidence Act, 1872 - Section 74/ 77 – Claim of compensation – Tenant – Trial court - Along with said application certified copy of bailiff report without calling for say response of petitioner trial Court allowed application for production of documents including certified copy of said bailiff report - On same day trial Court passed an order on which was an application filed on behalf of respondent for exhibiting said documents including certified copy of bailiff report - By said order trial Court recorded that since said documents were public documents they were directly admissible in evidence and there was no need to file application for exhibiting said documents - It was further recorded in said order that all public documents be marked as exhibited - It is relevant that say response of petitioner was not called by trial Court while passing said order – Held, Thus it becomes clear that burden to prove clearly was on respondent in facts of present case - Only contents of summons issued by Court consisting of name of Court name of parties, seal of the Court and returnable date stated in summons could be said to be a public document - Report written by bailiff on reverse of said document could certainly not be said to be a public document under Section 74 of said Act - Yet trial Court passed order allowing production of documents including bailiff report by respondent and passed impugned order below holding said documents to be directly admissible in evidence as public documents and marking them as exhibits - Trial Court also erred in passing impugned order rejecting application of petitioner for de-exhibiting said documents including bailiff report - It is also surprising that trial Court did not even call for say response of petitioner while passing order whereby production of documents was allowed and while passing impugned order whereby documents including said bailiff report were treated as public documents and accepted - This was clearly erroneous thereby rendering impugned orders unsustainable and liable to be quashed and set aside - In light of above present writ petition is allowed and impugned orders are quashed and set aside - Application is allowed - It is held that bailiff report sought to be placed on record and exhibited as public document cannot be treated as a public document and that it will have to be proved by respondent in accordance with law - Burden could not be said to be discharged by respondent by merely producing certified copy of said bailiff report written on reverse of summons but it was for respondent to have examined bailiff to prove existence of fact of service of summons on petitioner on strength of said bailiff report - Petitioner could then cross-examine said witness - Petition is allowed
MANISH PITALE, J.
1. Rule. Rule made returnable forthwith. Heard finally with the consent of the learned counsel appearing for the parties.
2. An interesting question arises in the present writ petition, as to whether the report of bailiff on a summons issued by a Court could be said to be public document under Section 74 of the Indian Evidence Act, 1872 and consequently placing certified copy of the same would amount to proof of contents thereof under Section 77 of the said Act.
3. The petitioner herein was the original defendant no.1 in a suit filed for declaration and possession. The respondent no.4 herein was added as defendant no.7 in the said suit but the suit abated against him. A counter claim had been filed on behalf of respondent no.4 in the suit about which the petitioner had no intimation or knowledge, as a result of which he failed to file any written statement to the same. The Court of Civil Judge, Senior Division, Amravati (trial court), allowed the counter claim filed by respondent no.4 and passed a decree against the co-defendants, including the petitioner herein.
4. It was the case of the petitioner that he came to know about passing of decree on counter claim filed by respondent no.4 on 21.11.2009 and consequently on 28.11.2009 he moved an application under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure, 1908 (CPC), along with an application for condonation of delay. The petitioner led evidence in support of his case before the trial Court and he was also cross-examined at length. After the evidence of the petitioner and his witnesses was over, when the proceeding before the trial Court was posted for evidence of the respondents, without filing any affidavit on record, the respondent no.4 filed an application for production of document marked Exh.38. Along with the said application, certified copy of bailiff report dated 01.03.2006 was filed and on 26.08.2015, without calling for say/response of the petitioner, the trial Court allowed the application for production of the documents including the certified copy of the said bailiff report. On the same day, the trial Court passed an order on Exh.40, which was an application filed on behalf of respondent no.4 for exhibiting the said documents, including certified copy of the bailiff report. By the said order, the trial Court recorded that since the said documents were public documents, they were directly admissible in evidence and there was no need to file application for exhibiting the said documents. It was further recorded in the said order that all public documents be marked as exhibited. It is relevant that the say/response of the petitioner was not called by the trial Court while passing the said order dated 26.08.2015 on Exh.40.
5. The petitioner filed an application marked as Exh.44 for de-exhibiting of the said documents, contending before the trial Court that the bailiff report could not be said to be a public document and that the burden was on the respondent no.4 to prove that there was valid service of summons on the petitioner and further that exhibiting the said document unfairly placed the burden on the petitioner to prove that he was not served with the summons.
6. By the impugned order dated 21.07.2016, the trial Court rejected the said application of the petitioner holding that the report of the bailiff was a public document, as it was in the prescribed proforma of the Court and it had seal and signature of the issuing authority as also the process server. It was further held that the copy on record was a certified copy issued by the trial Court itself and there was nothing wrong in the earlier order dated 26.08.2015 whereby the said bailiff report and the other documents, being public documents, had been directed to be exhibited. The petitioner has filed the present writ petition challenging the said order passed by the trial Court. The order dated 26.08.2015 passed by the Trial Court on Exh.40 is also challenged in
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