PURUSHOTHAM CHETTIAR Vs. RAMANUJA PADAYACHI AND ORS.

JUDGEMENT

(1.) THIS appeal arises out of a suit on a mortgage. The suit mortgage, was executed by the first defendant on 23rd July, 1951 for Rs. 6,000. The plaintiff alleged that the first defendant paid Rs. 2,000 towards the mortgage on 30th July, 1953, but had not paid the balance. The first defendant claimed that in addition to the sum of Rs. 2,000 mentioned by the plaintiff, he had made another payment of Rs. 2,000 on 10th March, 1958 and had endorsed it on the mortgage. He also contended that a promissory note for Rs. 1,250 executed by him in favour of the plaintiff on 29th January, 1957 was also towards the interest due on the suit mortgage. The plaintiff filed the suit on a registration copy of the mortgage alleging that he had lost the original. Both the Courts below have found that the loss pleaded is not true. They have also found that the second payment of Rs. 2,000 pleaded by the first defendant was true and that the promissory note for Rs. 1,250 had nothing to do with the suit mortgage. But the trial Court dismissed the suit holding that no secondary evidence could be let in regarding the contents of the suit mortgage. The lower appellate Court on the other hand has taken the view that the statement of the first defendant amounted to an admission of the execution of the mortgage and decreed the suit in part. But in respect of the amount due on the promissory note, it has taken the view that the admission of the first defendant has to be taken as a whole and therefore, this sum of Rs. 1,250 will also have to be deducted from the plaintiff's claim.

(2.) THE plaintiff has filed an appeal and the defendants have filed a memorandum of cross objections in respect of the portion decreed against them. All these findings being findings of fact, only two questions arise for decision in this case, (1) Whether secondary evidence could be let in regarding the contents of the suit mortgage or at least the admission of the first defendant could be relied upon for purposes of decreeing the suit and (2) Whether the lower appellate Court was correct in disallowing the sum of Rs. 1,250 due on the promissory note executed by the first defendant. As far as the decreeing of the suit is concerned, I think the lower appellate Court is correct. It has considered a number of decisions bearing on the point, that is, in Chuni Kuar v. Udairam I.L.R. (1884) All. 73; Sri Ram v. Ram Lal (1913)11 All.L.J. 255 Mullu v. Deokaran (1913) I.C. 955; Kukmatullah Khan v. Azim Khan Abdul : AIR1921All218 , Muhammad Zafar v. Zabur Hussain : AIR1926All741 , Pyarey Lal v. Hira Deir : AIR1941All150 Hira Lal v. Ram Prasad : AIR1949All677 ; Sundara Rajali v. Gopala Thevan : AIR1934Mad100 ; Ananta Raguram v. Raja Bemmadevara : A.I.R. 1958 A.P. 418, Brahmananda v. Kunduri Charas Das A.I.R. 1939 Ori. 126. The contention on behalf of the defendants is that as the original mortgage have been held by the Courts below not to have been lost, the plaintiff cannot succeed in the suit by producing the registration copy of the mortgage deed alone. Order 7 Rule 14 of the Code of Civil Procedure is relied upon for this purpose. I do not accept the contention on behalf of the defendants that the failure of the plaintiff to produce the document in his possession or authority necessarily means that his suit should be dismissed. The provision regarding the consequence of non -production by the plaintiff of a document in his possession as required under Order 7, Rule 14, is provided in Order 7, Rule 18, which provides that a document which ought to be produced in Court by the plaintiff when the plaint is presented or to be entered in the list to be added or annexed to the plaint and which is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. It does not provide for the dismissal of the suit itself. See the decisions in Gopal v. Vishnu I.L.R. (1898) 22 Bom. 971, Lakhpat Pathak v. Chiran Phathak : AIR1937All55 . Under Section 65 of the Evidence Act secondary evidence may be given of the existence, condition or contents of a document in the following cases:

(3.) THE decision in Sundara Rajali v. Gopala Thevan : AIR1934Mad100 , relied upon by the lower appellate Court as well as by the defendants in this case is really not against this, conclusion if it is properly considered. There the defendant admitted the execution of the promissory note. Both the plaintiff and the defendant agreed that there was a payment of Rs. 35 in July 1924. But while the plaintiff claimed that there. was another payment in May, 1926 or thereabouts, an allegation which was necessary in order to enable the plaintiff to save limitation, the defendant contended that he paid Rs. 50 about the end of September, 1924 which payment was endorsed on the promissory note. The promissory note in that case having been lost, the defendant's admission had to be accepted in full or rejected in full. If the defendant's admission was accepted in full, the suit would be barred by limitation. In the circumstances, the Court could not consider any other evidence and hold that the payment in May 1926 pleaded by the plaintiff could be true. The admission then related to the contents of the lost document and no evidence apart from the admission of the defendant could be received. The ratio of the decision is found in the following sentence in that decision. To treat the admission of defendant 1 that he and defendant 2 executed the pronote but to divorce it from his statement that the note was discharged except for Rs. 10 that this payment was endorsed and that the suit was time bared would appear to contravene the principle laid down by the Privy Council in Motabhoy Mulla Essabhoy v. Mulji Haridas (1915) L.R. 42 IndAp 103 : (1915) 28 M.L.J. 589.