IMPORTANT POINT
In an evidence affidavit under Order 18, a witness may well say of a given document that he cannot prove it by direct evidence and then proceed to adduce the secondary evidence in compliance with Section 65 of the Evidence Act. The trial court is to consider that evidence, viz., the reason given for not leading direct evidence, and the secondary evidence led, and is to then decide whether the secondary evidence led is sufficient.

G.S. Patel, J.—I have heard Mr Govilkar for some time for the Applicants (“Obstructionists”; “the Jains”) on the Civil Revision Application, and, briefly, Mr Matkar for the Respondent, Sunanda Madhukar Jadhav (“Sunanda”).

2. The Civil Revision Application is directed against an appellate order dated 3rd November 2015 in Appeal No. 239 of 2008. This appeal was in turn against a judgment dated 8th January 2008 in Obstructionist Notice No. 68 of 2005. That Obstructionist Notice came to be taken out in execution of an appellate decree passed on 10th March 2005 in Appeal No. 94 of 2001; and that arose against an order and judgment dated 27th July 2000 dismissing Sunanda’s Ejectment Suit of 1992. Sunanda holds a decree from the appellate court in her eviction suit.

3. This is a three-cornered, or more accurately, four-cornered, contest. On the one hand, there are the landlords, one Bipinchandra Doshi along with two others (“landlords”; “Doshi and others”) who own the property: Block No. 6, Second Floor, Sanghavi Mansion, 267, Jagannath Shankarseth Road, Girgaon, Mumbai 400 004. Then there is Sunanda, who says that she was a tenant of these premises from the landlords. She claims she gave these premises to what was then Maratha Mandir Cooperative Bank Limited, later the Saraswat Cooperative Bank Limited (“the Bank”) on a subtenancy. Finally there are the present Civil Revision Applicants, Parasanbai Dhanraj Jain and others, the Obstructionists, who say it is they who are the direct tenants of the landlords since November 1984-January 1985.

4. At the heart of this dispute is one single document dated 21st November 1984. It is by this document that it is alleged by the Bank, the landlords and the Obstructionists, that the Bank surrendered its sub-tenancy to Sunanda, and Sunanda in turn surrendered her tenancy to the landlords. In the first round, a photocopy of this document was marked in evidence as Exhibit 10. In appeal, by a truly extraordinary judgment, that order came to be reversed. The document was held not to have been sufficiently proved. The suit was decreed. In other words, the Appellate Court found that the surrender or relinquishment of the sub-tenancy and tenancy by the Bank and Sunanda respectively were not proved. Sunanda thus acquired an ejectment decree against the bank. I will note in passing that the appellate court seemed wholly unconcerned that Sunanda had not an iota of evidence of having paid any rent to the landlords from November 1984 onwards, and that her own so-called transaction with the Bank and her case of a continued sub-tenancy beyond November 1984 were riddled with inconsistencies. Sunanda herself gave no evidence. It was only her husband, said to hold a Power of Attorney, who stepped into the witness box. He said Sunanda could not give evidence because she ‘suffered from blood pressure’. That Sunanda paid no rent at all to the landlords from 1984, the date of the disputed surrender, until the date of the suit in 1992 is undisputed. The terms of her sub-tenancy to the Bank are also unclear; for, her case said, she was a constituent of the Bank; had a loan from it; created the sub-tenancy either in lieu of the loan, or with some nexus to it; and even so received five years’ rent in advance. The Bank, for its part, said it had refunded the advance rent on surrendering the sub-tenancy, but this, too, was disputed. Sunanda claimed the Obstructionists were sub-sub-tenants, i.e., put into possession by the Bank. The Obstructionists were not parties to her ejectment action against the Bank.

5. Thus, when Sunanda put the decree she obtained from the appellate court into execution, that execution was promptly obstructed by the Jains, the Obstructionists. They claimed that it was on account of the relinquishment of the bank’s sub-tenancy to Sunanda, and relinquishment of her own tenancy to the landlords, that they, the Obstructionists, were put into possession as direct tenants of the landlords. They