Permissibility of document marked by consent without being proved by witness.

VENKATASWAMI

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 of the same, the learned counsel for the petitioner canvassed the correctness of. the ruling in Manicka Mudaliar v. Shanmugasundara Mudaliar, reported in (1982) 95 Mad LW 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 from 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. A. 1 to A. 24 on the side of the plaintiff and Exs. B. 1 to B. 12 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 document 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 sides, the plaintiff has filed as many as 24 documents, which are marked as Exs. A 1 to A. 24, and the defendant has filed as many as 12 documents which are marked as Exs. B.1 to B. 12." *

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. 321 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 23-12-1982, 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 Mad LW 297 it is held that the documents should be proved and marked by examining the 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 petition 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 fre