SHRIKIRSHNADAS Vs. AJIT KUMAR RAI

JUDGEMENT

(1.) This appeal filed under Order 43, Rule 1 is directed against the order dated 13.8.1985 passed by Shri M.S. Chouhan, Additional Judge to the Court of District Judge, Narsinghpur at Gadarwara in Civil Appeal No. 30A of 1981 having the effect of setting aside the judgment and decree dated 6.4.1981 passed by the Civil Judge, Class II Gadarwara in Civil Suit No. 2A of 1980 and remitting the matter for fresh decision.

(2.) Appellant admittedly is the landlord in relation to the respondent and had filed his suit for eviction of the respondent from the suit premises on the ground that the same was required by him bonafide his personal needs and also for reconstruction. It appears that the suit house is a double storeyed house and though one Mahesh Kumar occupied the first floor no suit was filed against him, according to the appellant he has given in writing that he will vacate the premises whenever desired. Thus, writing was produced and taken on record as Ex. P-17. It further appears that the respondent in his evidence denied having received any rent receipt and therefore counterfoil of rent receipts (Exs. P-18 to P-28) were produced during the cross-examination to contradict him with reference to his aforesaid statement. The trial Court fould the case of bonafide requirement and also requirement of re-building established and therefore ordered eviction of the respondent. The respondent filed an appeal against the said order which was disposed of by the lower appellate Court by order impugned in this appeal. By this order the lower appellate Court held that admission of Ex. P-17 which was unstamped agreement was illegal. He also held that admission of counterfoils of rent receipts Exs. P-18 to Ex. P-28 was contrary to order 13, rule C.P.C. He therefore held that the view taken by the trial Court was vitiated. That is how these documents were ordered to be excluded and the matter re-considered.

(3.) As far as document (Ex. P-17) is concerned it was objected to by the learned counsel for the respondent immediately after it was accepted in evidence and marked as such. That was the reason why the objection was decided by the trial Court before actually entering upon the discussion of issues framed by it. This procedure is on record with the decision of the Supreme Court in Ram Rattan v. Bajrang Lal, 1978 AIR(SC) 1393The fact that the objection was noted and direction given to decide the same before deciding the suit would indicate that the admission of the document was subject to the objection. Since the objection was decided by the trial Court before deciding the suit on merits there was no procedural irregularity in the same. The reliance of the learned counsel for the respondent in M/s. Dashrathji Onkarji v. Gendalal,1973 MPLJ 111, does not improve the matter. The view taken by the learned Single Judge in the aforesaid case must be read in the context of view taken any the Supreme Court in Ram Rattan's case . If this decision lays down by thing contrary to the Supreme Court decision it must be deemed to have overruled. Under the circumstances, whether the document was rightly accepted in evidence or wrongly accepted in evidence was matter for consideration of the lower appellate Court. In case the appellate Court differed with the trial Court it could have examined the matter further to determine whether the document could be compounded on payment of requisite stamp duty and penalty. If it could be done, its admissibility could not have been doubted. Then the document did not touch any vital part of the controversy between the party and therefore could not be held to have prejudicially effected the decision. The document purports to contain what has been orally deposed by Mahesh (P.W. 5). Even if this document is to be ignored the oral testimony which remains uncontradicted would require consideration. Under the circumstances, this Court is not able to agree with the lower appellate Court admission of this documented evidence has in any manner prejudiced the judgment of the trial Court in that the prejudice was of a kind which would itself be sufficient to vitiate the said judgment. The document, in the opinion of this Court, be impounded in accordance with law. Even if it could not be impounded, it could be safely rejected and appeal considered on merits. Under the circumstances, it is clear that the impugned order of remand cannot be sustained.