IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : CIVIL PROCEDURE CODE
RFA NO. 872/2003
DATE OF DECISION: MAY 16th, 2005
ALACS FINANZ LTD. ………Appellant
Through Mr. Arjun Bhandari, Advocate.
M/S.OKSH TECHNOLOGIES …….Respondent
Through Mr. Anupam Srivastava, Advocate
REKHA SHARMA, J:
1 The suit has been dismissed on the short ground that it is not proved to have been signed, verified and instituted by a duly authorised person. This point was the subject matter of the first issue framed by the Trial Court. Two other issues were also framed. They were touching the merits of the case. The Trial Court left them open by not discussing the merits or de-merits of the claim set up in the suit or the defence taken in the written statement. The Court felt that there was no need to go into to the said two issues since the suit deserved to be dismissed on account of finding on the first issue.
2 The plaintiff in the suit who is appellant before us, has taken the plea that the Trial Court was wrong in its finding on the first issue and that, in any case, it was prepared to lead additional evidence to prove that the plaint had actually been signed and verified and the suit had actually been instituted by a duly authorised person. In that regard, an application under Order 41 Rule 27 has been filed before us. We feel that we need not decide that application one way or the other since the finding returned by the Trial Court is not sustainable.
3 Before we proceed to deal with the points in question as referred to above, we may mention that the suit was for the recovery of Rs. 4,95,000/- along with interest and cost and the issues framed were as under :-
“1.Whether the plaint has been signed and verified and the suit has been instituted by a duly authorised person for and on behalf of the plaintiff ? OPP
2.Whether the plaintiff is entitled to recover Rs.4,95,000/- from the defendants ? OPP
3.Whether the plaintiff is entitled to recover interest from the defendants ? If so, at what rate, on what amount and for what period ? OPP
4.Whether the suit of the plaintiff is liable to be rejected u/o. 7 rule 11 clause (d) (e) of the CPC? OPD
4 The appellant in support of its case on merits as well as on issue no.1 had examined Shri S.P. Aggarwal as PW I. He happens to be the Director of the Appellant Company. A little peep into his statement recorded in examination-in-chief and so also the assertions made by him in cross-examination would reveal that in support of issue no.1, he had placed on record a certified copy of the Resolution passed by the Board of Directors and the same was accepted and taken as evidence and was marked as Exhibit PW 1/C. What is of significance is that when this document was produced in evidence and was marked as an exhibit, no objection was raised by the defendants, who are respondents before us either with regard to its admissibility or to its mode of proof. The cross-examination of this witness further reveals that in fact, the defendant admitted exhibit PW 1/C to be the correct copy of the Resolution. This is borne out from the suggestion given to the witness in cross-examination. That particular part of the cross-examination is as follows:-
5. It is correct that exhibit PW 1/C is the Resolution of the plaintiff company in my favour. I identify the signature at marked `A’ that is Mr.Achal aggarwal. Mr. Achal Aggarwal is at present the Director of the plaintiff company. It is correct that the contents of the Resolution were written in front of me. My consent is there for the said Resolution, which was in my favour.”
6 What further needs to be noticed is that even in the cross-examination, there was no challenge to the correctness of Resolution exhibit PW 1/C nor to its admissibility or mode of proof. Thus, to say it briefly, there was no challenge to the correctness, veracity, admissibility or mode of proof of exhibit PW 1/C. A bare perusal of that Resolution would go to show that Shri S.P. Aggarwal has been duly authorised to sign and verify the pleadings and to institute the suit.
7 The Trial Court has refused to look into and act upon PW 1/C on the ground that exhibit PW 1/C is not the original, but only a certified copy and, therefore, primary evidence has been kept back and secondary, evidence cannot be looked into. With respect, the learned Trial Judge slipped here. We have already noticed that the document was admitted in evidence without any objection with regard to its admissibility or mode of proof.
8 We all know that evidence, whether oral or documentary or real, is either primary or secondary and that the contents of documents may be proved either by primary or by secondary evidence. Primary evidence as told to us by Section 62 of the Evidence Act means the document itself produced for the inspection of the Court while, Section 63 mentions five kinds of secondary evidence. Since the “best evidence” must always be produced, section 64 lays down that if the original document exists and is available, it must be produced because it is the “best evidence”. There are, however, exceptions to the Rule and Section 65 states those class of cases in which secondary evidence may be given. In the case in hand since the original Resolution was in possession and power of the plaintiff, learned Trial Judge was right in observing that only a certified copy of the same having been produced, the primary evidence had been kept back. But, then, unfortunately, the learned Trial Judge was right limited only to that extent. What was lost sight of was and as already noticed, when the certified copy of the Resolution was tendered in evidence, no objection to its admission or mode of proof was raised. Not even in the cross-examination. Rather, and we may say so, even at the risk of repetition, that in cross-examination its correctness was rather admitted. Now, the Rule that where primary evidence is attainable, the secondary evidence stands excluded is not so rigid and one such case of flexibility is where no objection is made by the party against whom the inferior evidence is proved. Where secondary evidence is admitted without there being a proper objection it becomes primary. The correct legal position we feel is that where a party waives proof of circumstances justifying the giving of secondary evidence, it cannot later come out of the slumber and raise objection. The justification of this exception to the Rule seems to be that had objection been taken then and there, the party affected could have met it and regularise the proceedings.
9 For the reasons recorded above, we feel that the finding of the Trial Court on issue no.1 needs to be set aside. It is primarily, for this reason that we have not touched the application under Order 41 Rule 27 CPC.
10 As noticed above, issue nos. 2 and 3 have been left open and we find no discussion with regard to merits or de-merits of the points giving rise to those issues. In fact, there is no reference to the evidence led by the parties on the points involved. Faced with this situation, we accept the appeal, set aside the judgment and decree under appeal and in exercise of our power under Order 41 Rule 23 CPC, we remand the case to the Trial Court with a direction to re-admit the suit under its original number in the register of Civil Suits and proceed to determine the suit in accordance with law.
REKHA SHARMA, J.
DR.MUKUNDAKAM SHARMA, J.
MAY 16th, 2005