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Code of Civil Procedure, 1908-Order XIII Rule 3 : Evidence Act, 1872- Section 65 : Civil suit-Production of secondary evidence-No objection raised against the evidence at trial stage-Objection to mode of proof at appellate stage- Permissibility of such objection-Held: Mode of proof falls within procedural law-Such objection can be taken before the document is marked as an exhibit and admitted to the record and not at appellate stage. Respondent-plaintiff filed a suit for declaration that the suit plot was his and his brother’s absolute property and sought injunction restraining the appellant-defendant from entering the suit property. According to the respondent the title came to him through the sons of `G’ vide a registered sale deed dated 14.11.1944 Exhibit P-1 and later on under Exbt. P-2 a gift deed. Appellant claimed title of only a portion of the suit property claiming to have title of the same through wife of `G’. Appellant did not challenge Exbts. P-1 (the certified copy of sale deed) and P-2. Trial Court decreed the suit inter alia holding that Exbt P-l was admissible as the document was 30 years old and hence presumption under Section 90 of Evidence Act applied to the same and that Exbt. P-2 stood proved. Lower appellate Court, dismissed the suit holding that Exbts. P-l and P-2 were not proved as original sale deed (Exbt. P-l) was not produced, that plaintiff had not laid foundation for admissibility of secondary evidence under Section 65(a) and (f). In second appeal High Court upheld the order of trial Court In appeal to this Court appellant contended that the certified copy of the sale deed being secondary evidence was not admissible as no steps were taken to produce the original sale deed nor any step was taken to prove the loss of the same.

High Court of Karnataka, Bangalore

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CASE NO.:
Appeal (civil) 2434 of 2000

PETITIONER:
SMT. DAYAMATHI BAI

RESPONDENT:
SRI K.M. SHAFFI

DATE OF JUDGMENT: 04/08/2004

BENCH:
ASHOK BHAN & S.H. KAPADIA.

JUDGMENT:
J U D G M E N T

KAPADIA, J.

 This appeal by special leave is filed by the original defendant 
against the judgment and order dated 18th December, 1998 passed by 
the High Court of Karnataka in R.S.A. No.802 of 1995. 

 Briefly, the facts giving rise to this appeal are as follows:

 K.M. Shaffi, respondent herein instituted a suit bearing O.S. 
No.451/84 in the Court of Principal Munsiff, Bellary (hereinafter for 
the sake of brevity referred to as "the trial Court") for a declaration 
that a portion of T.S. No.272-A and T.S. No.273-B admeasuring 
80'x120' (hereinafter for the sake of brevity referred to as "the suit 
plot") was his and his brother's absolute property. In the said suit, the 
plaintiff also sought an injunction restraining the appellant herein 
(defendant) from entering the suit plot.

 T.G. Sreenivasa Pillai, T.G. Vivekananda Pillai and T.G. 
Sathyanarayana Pillai sons of Gurunatham Pillai were the owners of 
suit land bearing S. No.635R (which was revised to T.S. 272) 
admeasuring 90 cents and S. No.635T (revised to T.S. 273) 
admeasuring 5 acres 38 cents. The sons of Gurunatham Pillai sold the 
above lands to Khan Saheb Abdul Hye vide sale deed dated 
14.11.1944 (Ex.P.1) for Rs.300/-. Khan Saheb Abdul died in 1947 
leaving behind him his two sons, Basheer and Muneer who in turn 
gifted the said lands to one Sattar (father of the plaintiff) and Rahiman 
(plaintiff's uncle) under gift deed dated 20.6.1966 (Ex.P2). Sattar and 
Rahiman got the above lands sub-divided. In the partition suit 
No.381/72 on the file of Principal Munsiff, Bellary the plaintiff herein 
and his brother got the sub-divided plot Nos.T.S. 272A and T.S. 273B 
which included the suit plot admeasuring 80'x120'. The present title 
suit was filed when the appellant herein tried to enter upon the suit 
plot. 

 In the written statement, the appellant herein pleaded that the 
suit plot admeasuring 80'x120' was a separate plot and that it was not 
a part of T.S. 272A and T.S. 273B as alleged. It was pleaded that the 
suit plot was separately assessed by the municipality. It was pleaded 
that on 19.7.1967, the husband of the appellant had bought the suit 
plot from one Rajarathnam. That the husband of the appellant had 
later on executed a deed of settlement in favour of the appellant on 
12.1.1973 and that the appellant had been in possession and in 
enjoyment of the suit plot. That Rajarathnam had purchased the suit 
plot in 1965 from the wife of Gurunatham Pillai. In the written 
statement, the appellant herein denied that the sons of Gurunatham 
had sold the lands to Khan Saheb Abdul as alleged. It was contended 
that sons had no right to sell the said lands. That the wife of 
Gurunatham was the owner. That she had not executed any 
conveyance in favour of Khan Saheb. In the written statement, 
appellant denied the gift by sons of Khan Saheb to Sattar and 
Rahiman.

 Two main points arose for determination before the trial Court. 
Firstly, whether the plaintiff is the owner of the suit plot. Secondly, 
whether the suit plot formed part of T.S.272A and T.S.273B. 
According to PW1 the title came to him through the sons of 
Gurunatham vide Ex.P1 which was a registered sale deed dated 
14.11.1944 and later on under Ex.P2 which is gift deed executed by 
sons of Khan Saheb in favour of Sattar and Rahiman.

 On the other hand, the appellant (defendant) claimed title only 
to the suit plot admeasuring 80'x120'. She claimed it to be a separate 
property. She traced her title to the wife of Gurunatham. She 
contended that the sons of Gurunatham had no right to sell.

 The trial Court found that when on 14.11.1944 the sons of 
Gurunatham Pillai had sold the above lands vide sale deed Ex.P1 to 
Khan Saheb Abdul for Rs.300/-, the wife of Gurunatham had no right 
to sell the suit plot in 1965 through her constituted attorney to 
Rajarathnam from whom the husband of the appellant claims to have 
purchased the suit plot. The trial Court further observed that before it 
there was no plea that the wife of Gurunatham was the absolute 
owner. The trial Court found from Ex.P1 that the sons of Gurunatham 
had sold the lands for family necessity. In the circumstances, the trial 
Court held that no title had vested in Rajarathnam. The trial Court 
further found that Ex.P1 was more than 30 years old document and 
the presumption under Section 90 of the Evidence Act applied to the 
said documents. Before the trial Court Ex.P2 stood proved by the 
plaintiff who examined the constituted attorney of Basheer and 
Muneer as PW2. Further, execution of Ex.P2 was not challenged. 

 At this stage, it may be mentioned that the appellant did not 
object to the registered sale deed Ex.P1 dated 14.11.1944 being 
marked and admitted in evidence. The appellant also did not challenge 
the execution of Ex.P2. Hence the trial Court decreed the suit.

 Being aggrieved by the decree passed by the trial Court, the 
appellant herein preferred Regular Appeal no.36 of 1988 in the Court 
of Civil Judge, Bellary (hereinafter for the sake of brevity referred to 
as "the lower appellate Court"), who took the view inter alia that the 
plaintiff had failed to prove Ex.P1 and Ex.P2 as neither the executant 
nor the donor had been examined. That Ex.P1 and Ex.P2 could not be 
acted upon as the original deed dated 14.11.1944 (Ex.P1) had not been 
produced. The lower appellate Court found that the plaintiff had not 
laid the foundation for admissibility of secondary evidence under 
Section 65(a) and (f) and in the circumstances the sale was not 
proved. The lower appellate Court observed that although the original 
deed was available in the collateral proceedings the plaintiff took no 
steps to produce it before the trial Court in the present suit. The lower 
appellate Court further found that the power of attorney in favour of 
PW2 was duly registered. That the plaintiff could have summoned it 
from the office of the sub-registrar. This was not done. In the 
circumstances, the lower appellate Court came to the conclusion that 
both the Exhibits P1 and P2 were not proved. Consequently, the 
lower appellate Court allowed the appeal and dismissed the suit filed 
by the plaintiff.

 Aggrieved by the decision of the lower appellate Court, K.M. 
Shaffi, the original plaintiff preferred Second Appeal under section 
100 of CPC before the High Court. At the time of admission of the 
second appeal, following substantial question of law was formulated 
by the High Court:
"As to whether the lower appellate Court has erred in 
holding that the certified copies of the sale deed and the 
gift deed being Exs.P1 and P2 respectively are not 
admissible in evidence and as such the plaintiff had failed 
to substantiate his title over the suit schedule property?"

 The High Court on consideration of various authorities came to 
the conclusion that since the copy of Ex.P1 was a certified copy and 
since it is more than 30 years old document, the trial Court was right 
in invoking the presumption under Section 90 of the Evidence Act. 
Consequently, the appeal was allowed. Hence, this civil appeal.

 Ms. Kiran Suri, learned counsel appearing on behalf of the 
appellant submitted that once the document becomes incapable of 
being proved for want of primary evidence, the foundation of 
secondary evidence must be laid, without which, such secondary 
evidence was inadmissible. That in the present case, no steps were 
taken by the plaintiff to produce the original sale deed. That no steps 
were taken to prove the loss of the original sale deed. That no steps 
were taken to establish the source from which certified copy was 
obtained. She submitted that if the foundation is laid under section 65 
and if the plaintiff was able to prove that the original sale deed was 
lost then the secondary evidence was admissible but in the absence of 
such a foundation, the High Court erred in holding that the registered 
certified copy of the sale deed was admissible in evidence as the 
document produced was more than 30 years old. 

 We do not find merit in this civil appeal. In the present case the 
objection was not that the certified copy of Ex.P1 is in itself 
inadmissible but that the mode of proof was irregular and insufficient. 
Objection as to the mode of proof falls within procedural law. 
Therefore, such objections could be waived. They have to be taken 
before the document is marked as an exhibit and admitted to the 
record (See: Order XIII Rule 3 of Code of Civil Procedure). This 
aspect has been brought out succinctly in the judgment of this Court in 
R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. 
Temple & Another reported in [(2003) 8 SCC 752] to which one of 
us, Bhan, J., was a party vide para 20: 
"20. The learned counsel for the defendant-respondent 
has relied on Roman Catholic Mission v. State of 
Madras [AIR 1966 SC 1457] in support of his 
submission that a document not admissible in evidence, 
though brought on record, has to be excluded from 
consideration. We do not have any dispute with the 
proposition of law so laid down in the abovesaid case. 
However, the present one is a case which calls for the 
correct position of law being made precise. Ordinarily, 
an objection to the admissibility of evidence should be 
taken when it is tendered and not subsequently. The 
objections as to admissibility of documents in evidence 
may be classified into two classes: (i) an objection that 
the document which is sought to be proved is itself 
inadmissible in evidence; and (ii) where the objection 
does not dispute the admissibility of the document in 
evidence but is directed towards the mode of proof 
alleging the same to be irregular or insufficient. In the 
first case, merely because a document has been marked 
as "an exhibit", an objection as to its admissibility is not 
excluded and is available to be raised even at a later stage 
or even in appeal or revision. In the latter case, the 
objection should be taken when the evidence is tendered 
and once the document has been admitted in evidence 
and marked as an exhibit, the objection that it should not 
have been admitted in evidence or that the mode adopted 
for proving the document is irregular cannot be allowed 
to be raised at any stage subsequent to the marking of the 
document as an exhibit. The latter proposition is a rule 
of fair play. The crucial test is whether an objection, if 
taken at the appropriate point of time, would have 
enabled the party tendering the evidence to cure the 
defect and resort to such mode of proof as would be 
regular. The omission to object becomes fatal because 
by his failure the party entitled to object allows the party 
tendering the evidence to act on an assumption that the 
opposite party is not serious about the mode of proof. On 
the other hand, a prompt objection does not prejudice the 
party tendering the evidence, for two reasons: firstly, it 
enables the court to apply its mind and pronounce its 
decision on the question of admissibility then and there; 
and secondly, in the event of finding of the court on the 
mode of proof sought to be adopted going against the 
party tendering the evidence, the opportunity of seeking 
indulgence of the court for permitting a regular mode or 
method of proof and thereby removing the objection 
raised by the opposite party, is available to the party 
leading the evidence. Such practice and procedure is fair 
to both the parties. Out of the two types of objections, 
referred to hereinabove, in the latter case, failure to raise 
a prompt and timely objection amounts to waiver of the 
necessity for insisting on formal proof of a document, the 
document itself which is sought to be proved being 
admissible in evidence. In the first case, acquiescence 
would be no bar to raising the objection in a superior 
court."

 To the same effect is the judgment of the Privy Council in the 
case of Gopal Das & Anr. v. Sri Thakurji & Ors. reported in [AIR 
1943 PC 83], in which it has been held that when the objection to the 
mode of proof is not taken, the party cannot lie by until the case 
comes before a Court of appeal and then complain for the first time of 
the mode of proof. That when the objection to be taken is not that the 
document is in itself inadmissible but that the mode of proof was 
irregular, it is essential that the objection should be taken at the trial 
before the document is marked as an exhibit and admitted to the 
record. Similarly, in Sarkar on Evidence, 15th Edition, page 1084, it 
has been stated that where copies of the documents are admitted 
without objection in the trial Court, no objection to their admissibility 
can be taken afterwards in the court of appeal. When a party gives in 
evidence a certified copy, without proving the circumstances entitling 
him to give secondary evidence, objection must be taken at the time of 
admission and such objection will not be allowed at a later stage. 

 In the present case, when the plaintiff submitted a certified copy 
of the sale deed (Ex.P1) in evidence and when the sale deed was taken 
on record and marked as an exhibit, the appellant did not raise any 
objection. Even execution of Ex.P2 was not challenged. In the 
circumstances, it was not open to the appellant to object to the mode 
of proof before the lower appellate Court. If the objection had been 
taken at the trial stage, the plaintiff could have met it by calling for the 
original sale deed which was on record in collateral proceedings. But 
as there was no objection from the appellant, the sale deed dated 
14.11.1944 was marked as Ex.P1 and it was admitted to the record 
without objection. For the foregoing reasons, we do not find any merit in this civil 
appeal and the same is accordingly dismissed, with no order as to 
costs.

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