ORDER
S.P. Srivastava, J.
1. Feeling aggrieved by the order passed by the first Appellate Court remanding the suit with a direction to the trial Court to get the certified copy of the registered sale deed executed on 24th July, 1973, and registered on the same date, exhibited and after affording sufficient opportunity to the appellant to lead evidence and permitting the plaintiff to cross-examine him; decide the suit afresh on merits; the defendant/tenant has now approached this Court seeking redress praying for reversal of the impugned order.
2. I have heard the learned counsel for the defendant/tenant-appellant as well as the learned counsel representing the landlord/respondent, and have carefully perused the record.
3. The facts in brief shorn of details and necessary for the disposal of this appeal lie in a narrow compass. The plaintiff/landlord-respondent had filed the suit on 13th December, 1989, seeking a decree for recovery of possession over the accommodation in dispute under the tenancy of the defendant and for arrears of recovery of rent, etc. The plaintiff had alleged that he was the owner of the house of which the accommodation in dispute formed a part, which was under the tenancy of the defendant, who had defaulted in the payment of rent. It was also alleged that the total accommodation in his house which was at the disposal of the plaintiff was too short to satisfy the needs of his large family, and in particular a son, Ghanshyam and his family members were suffering a lot on account of the paucity of accommodation. The assertion was that the accommodation in dispute was genuinely and bona fide required as there was no other reasonably suitable alternative accommodation available to the plaintiff within the municipal limits of Gwalior which could satisfy his need.
4. It may be noticed at this stage that although the plaintiff in paragraph 1 of the plaint had referred to the entire premises as a house No. 6/613 (Old) and 44/115 (new) disclosing the same to be in his ownership and possession yet in paragraph 8 of the plaint, he had clarified that he was the owner of only a portion of the aforesaid building, the details whereof were specified in the said paragraph.
5. From a reading of paragraphs 1 and 8 of the plaint together, it is apparent that the plaintiff claimed to be the owner of only a portion of the house No. 6/613 (old) which was re-numbered as 44/115.
6. The defendant had contested the claim of the plaintiff denying the plaint allegations asserted that the accommodation available to the plaintiff in his house was much more than the accommodation required to satisfy his alleged need.
7. During the pendency of the suit, the plaintiff had moved an application on 17th of October, 1992, asserting that the original sale deed of the year 1962, through which the building in question had been purchased by him in the said year, had already been filed and brought on record. It was further asserted that half portion of the house in question had been sold by him to Kamalabai in the year 1973, clearly demarcating the portion sold in the building plan of the same attached to the sale deed which plan was the building plan attached with the sale deed of the year, 1962. It was prayed that the registered document along with the building plan may be permitted to be brought on record as evidence.
8. The aforesaid application had been disposed of by the trial Court vide the order dated 27th February, 1993. The trial Court found that the aforesaid documents were necessary to be brought on record. The application under Order XIII Rule 2 of the Civil Procedure Code, 1908 (hereinafter referred to as the Code) was allowed granting permission for taking on record the aforesaid documents imposing Rs. 20/- as costs. Subsequently, on 17th November, 1993, the plaintiff had moved an application indicating that he had sold half portion of the entire building in favour of Kamalabai in the year 1973, through a registered sale deed, and since the original sale deed was in the possession of Kamalabai, a certified copy of the same had been obtained from the Office of Sub-Registrar, and since it was not possible for the plaintiff to file on record the original and the certified copy thereof had already been brought on record, the said certified copy of the sale deed be admitted in evidence with the permission to exhibit the same. This application was disposed of by the trial Court vide the order dated 9th December, 1993.
9. The trial Court under its aforesaid order accepted the request of the plaintiff and directed that the aforesaid certified copy of the sale deed shall be treated as admissible as a secondary evidence, and posted the case for plaintiffs evidence on 13th January, 1993.
10. The plaintiff was examined as a witness in support of his case on 5th November, 1993. In paragraph 12 of his statement, he proved the execution of the registered sale deed in the year 1973, through which he had transferred the half portion of the building. When the counsel for the plaintiff requested to exhibit the said sale deed, the trial Court refused the permission on the ground that the plaintiff had not moved any application seeking to admit on record the certified copy of the sale deed as secondary evidence.
11. Obviously, the refusal of the permission to exhibit the certified copy of the sale deed of the year 1973, on the ground that no application had been filed for admitting the same in evidence as secondary evidence was patently erroneous as the trial Court itself had in fact not only allowed the bringing on record of the certified copy of the sale deed but the application for admitting it as secondary evidence also had already been allowed by the trial Court itself as has been noticed hereinbefore.
12. The Trial Court after considering the evidence and materials brought on record accepted the evidence led by the plaintiff to be reliable and worthy of credit. Holding that the need set up by the plaintiff was bona fide, and genuine; and further that no reasonably suitable alternative accommodation was available for satisfying his need; it granted a decree in his favour; as prayed for.
13. Feeling aggrieved by the aforesaid decree, the defendant by means of an appeal approached the lower Appellate Court.
14. The lower Appellate Court came to the conclusion that the trial Court was not justified in not accepting the certified copy of the registered sale deed of the year 1973, in evidence. The lower Appellate Court was of the view that the certified copy of the sale deed was admissible in evidence and ought to have been accepted as such. The Court below placed reliance upon a decision of this Court in the case of Vasudev v. Tikaram, reported in 1994 (Part-1) MPWN 198.
15. However, instead of deciding the appeal itself on merits, the Appellate Court remanded the case with the direction to the trial Court to permit the plaintiff to get the certified copy of the sale deed exhibited and permit the defendant to lead evidence on that aspect allowing the plaintiff the opportunity of cross-examination, and thereafter decide the suit on merits.
16. The learned counsel for the defendant/applicant has strenuously urged that the certified copy of the sale deed was inadmissible in evidence and has strongly relied upon a decision of this Court in Gopal Sharma v. Savitri Devi Ojha, M. P. No. 89 of 1994 (G); Decided on 23rd March, 1994 reported in 1994 (I) MPWN SN 192.
17. The learned counsel for the plaintiff/respondent has however urged that the certified copy of the sale deed was admissible in evidence and has tried to draw support from the decision of this Court in the case of Vasudev v. Tikaram, C. Revn. No. 120 of 1992 (G); Decided on 22nd February, 1994 reported in 1994 (I) MPWN SN 198.
18. A perusal of the judgment in the case of Vasudev (supra) indicates that the certified copies of the sale deeds which had been filed by the plaintiff in that case were not the basis of their suit or their title and had been filed for some collateral purpose.
19. The learned Single Judge in his decision in the aforesaid case placing reliance upon a decision of the Gauhati High Court in the case of Md. Saimuddin v. Abedjuddin Sheikh, reported in AIR 1979 Gau. 14, held that if the documents were not the basis of the suit or the basis of the title to which the plaintiffs relied then certainly certified copies of any sale deed could be used only for collateral purposes and it did not require that strict proof and the documents were not private documents.
20. In the case of Gopal Sharma (supra) a certified copy of the sale deed was not allowed to be brought on record as secondary evidence as the requisite conditions for admitting such evidence were not satisfied.
21. This Court in its decision in the aforesaid case observed that when the original documents were not only existing but were also available, the allowing of the prayer to admit certified copy of the document only on the ground that summoning of the original document in evidence would be time consuming, could not be held to be a valid ground for accepting the document as secondary evidence. It was also noticed that the Courts below had not found that the documents were public documents, and as such they were not required to be proved by summoning the originals.
22. The learned Single Judge in his decision in the aforesaid case did not choose to place reliance upon the decision in the case of Md. Saimuddin Sheikh v. Abejuddin Sheikh, AIR 1979 Gauhati 14, in view of the decision of this Court in the case of Jagannath Prasad Nigam v. Visheshwar Prasad, 1977 (1) MPWN 210, wherein it was held that such documents were not public documents, and the certified copies could not be accepted in evidence unless further evidence is given to prove execution and even attestation if so required by law.
23. In the case of Gurnam Singh and Ors. v. Surjit Singh and Ors., decided by the Apex Court and reported in AIR 1974 SC 2367, the plaintiffs based their claim on a sale deed dated 10-5-1955, which sale deed was duly registered. The respondents to the appeal had purchased the land in dispute through the sale deed dated 16th April, 1957, registered on 19th March, 1958. The plaintiffs claimed that even after that sale, they still retained co- ownership rights in some area and were entitled to the decree of pre-emption prayed for. The High Court had pointed out that the plaintiffs had not produced the sale deed by and under which they had sold their co-ownership rights and the decree was reversed on the ground that it had not been established by the plaintiffs that they had on the date of the decree any land in which they were co-sharers with the vendors in the land sold to the respondents no. 1 to 6.
24. The Apex Court in its aforesaid decision had observed that the plaintiffs had not filed any document in their power and possession in the High Court and they had not produced the sale deed even at the stage of the Supreme Court indicating that the registered sale deed was a public document and could have been easily looked into if they were being asked for it to be admitted at the appellate stage. However, since the plaintiffs had failed to do so, the appeal was dismissed maintaining the decree of the High Court, observing further that the suppression of the document justified the drawing of an adverse inference that if it was produced, it would have established that the appellants had no lands left after they sold them and as they had not established that they were co-owners in the land sold on the relevant date they were not entitled to a decree of pre-emption.
25. It is contended by the learned counsel for the plaintiff/respondent on the strength of the observations of the Apex Court in its aforesaid decision that the sale deed which was duly registered is a public document and as such the certified copy was admissible in evidence.
25-A. The Gujarat High Court in its decision in the case of Jagdishchandra Chandulal Shah v. State of Gujarat and Ors., reported in 1989 Cri.L.J. 1724, had observed after taking into consideration various provisions of the Registration Act, that a certified copy of the sale deed duly registered under the provisions of the Registration Act, would be a public document, and therefore, admissible for the purpose of proving the contents of the original document. Clarifying further that whenever the question of execution of that document arises, it will be required to be proved according to law.
26. It may be noticed that under the provisions contained in Section 64 of the Indian Evidence Act, 1872, the documents must be proved by primary evidence except in the cases provided under Section 65 of the said Act. It is, therefore, obvious that where written documents exist, they have to be produced as being the best evidence of their own contents. Secondary evidence may be given of the existence condition or contents of the document in the contingencies enumerated in Section 65 of the aforementioned Act and the conditions specified therein may have been safeguarded.
27. In the present case, as has already been noticed hereinabove, the original of the sale deed executed in the year 1973, was not in the possession of the plaintiff who had executed the same and in the normal course also it ought to be in the possession of the vendee who was not a party to the proceedings.
28. Considering the circumstances as brought on record, what I find is that the plaintiff had succeeded in establishing the requisite conditions which permitted the bringing on record of the secondary evidence and for admitting in evidence the certified copy of the sale deed of the year 1973, the application for which purpose had been rightly allowed by the trial Court. The plaintiff was himself the vendor and had proved the execution of the sale deed. The trial Court, therefore, should have allowed the plaintiff to mark the certified copy of the sale deed brought on record as an exhibit. This, in the peculiar circumstances of the present case, could have been even done by the lower Appellate Court as it would have prejudiced none.
29. In its decision in the case of Bhairab Chandra Nandan v. Randhir Chandra Dutta, reported in AIR 1988 SC 596, the Apex Court had clarified that the condition that a landlord should not be in possession of any reasonably suitable accommodation may not be strictly applied where a landlord is occupying a portion of the house and wants possession of the leased portion only by way of additional accommodation as otherwise it would lead to a landlord being asked to disrupt the family and provide accommodation for the members of his family at different places.
30. The lower appellate Court in the present case has remanded the suit for permitting the defendant/tenant to lead evidence on the aspect of the sale deed of the year 1973, and permitting cross-examination by the plaintiff. Thus, additional evidence was allowed to be brought on record even though the parties had closed their evidence led.
31. The certified copy of the sale deed of the year 1973, had been brought on record in the year 1993. The defendant/tenant had led his evidence in the year 1996. He was fully aware of the plea raised by the plaintiff also that he was the owner of that portion of the house, the details whereof had been given in paragraph 8 of the plaint. The parties were alive to the real issue about the requirement of the plaintiff for an additional accommodation to satisfy his need and further his claim that he did not have in his possession any other reasonably suitable alternative accommodation. The parties had gone to the trial and adduced the evidence with this issue in mind.
32. In the circumstances, therefore, there could be no justification for permitting the defendant to lead additional evidence on the aspect indicated in the impugned judgment especially when no request had been made in this regard and further no additional evidence could be permitted to be brought on record simply to provide an opportunity to the defendant to fill in lacuna in his defence or make up any deficiency in the evidence led by him in the trial Court.
33. Considering the facts and circumstances brought on record and the conclusions indicated hereinabove, sufficient ground has been made out for interference in the impugned order.
34. In the result, this appeal succeeds. The impugned order passed by the lower Appellate Court is set aside with the direction that the appeal of the defendant be restored to its original number and be heard and disposed of finally on merits in the light of the observations made hereinabove.
35. Since the suit had been filed in the year 1989, the lower Appellate Court shall ensure that the appeal is finally disposed of within a period not later than three months from the date of production of certified copy of this order before it.
36. There shall, however, be no order as to cost.