SUCHA SINGH Vs. GURNAM SINGH

JUDGEMENT

(1.) THIS is an appeal against an order of remand passed by the Additional District Judge, Patiala in a civil appeal.

(2.) GURNAM Singh, plaintiff-respondent, instituted a suit for declaration challenging on the usual grounds of want of consideration and legal necessity the validity of a sale effected by his father. The sale-deed is dated 31st January, 1967, and the suit was instituted on 18th June, 1970. After necessary issues had been framed and evidence of the parties recorded, the suit was dismissed by the trial Court on 15th March, 1971. The plaintiff took an appeal which was allowed by the Additional District Judge and the case remanded to the trial Court on the ground that the documents produced by both the parties had not been properly exhibited and admitted its evidence after strictly complying with the requirements of Order 13, Rule 4, Code of Civil Procedure. On the request of the plaintiff-appellant, the Court of first appeal granted him permission to produce additional evidence as well.

(3.) TO say the least, the manner of disposing of the appeal was perfunctory and highly unsatisfactory. It appears that the Additional District Judge did not apply his mind at all and a submission had just to be made by the appellant-defendant to be at once accepted by the Court. Documents, Exhibits P-1 to P-8 and D-1 to D-7 were stated by the counsel for the plaintiff-appellant to have not been properly admitted in evidence though no such objection was raised before the trial Court. The defects pointed out were not serious and could not possibly amount to an illegality. What seems to have happened is that the Presiding Officer only put his initials below the exhibit marks, except Exhibit D-5, which is not initialed though it bears the date on which it was admitted in evidence. On the other documents seal of the Court is affixed, date given and entry initialed by the Presiding Officer. Some of the documents are copies of the revenue records. No doubt it is necessary that endorsements on documents admitted in evidence are made in accordance with Order 13, Rule 4, Code of Civil Procedure and the need for doing so cannot be over-emphasized. "order 13, Rule 4, is as under:- "4. (1) Subject to the provisions of the next following sub-rule, there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars, namely:- (a) the number and title of the suit, (b) the name of the person producing the document, (c) the date on which it was produced, and (d) a statement of its having been so admitted; and the endorsement shall be signed or initialed by the Judge. (2) Where a document so admitted is an entry in a book, account or record, and a copy thereof has been substituted for the original under the next following rule, the particulars aforesaid shall be endorsed on the copy and the endorsement thereon shall be signed or initialed by the Judge". The Court of the first appeal did not care to read this rule wherein it is specifically stated that the endorsement has to be either signed or initialed. Initialing of the endorsement is, therefore, not a defect of procedure and no other defect has been referred to in the judgment under appeal or pointed out now. No controversy was raised in appeal as to whether the documents had been admitted in evidence. In the absence of any such controversy and more so when no objection about their admission was raised at the trial stage, the omission, if any to rigidly follow the requirements of Order 13, Rule 4, will not per se under the document inadmissible. Neither of the parties objected to the admission of the documents at the trial stage and they cannot be permitted to agitate any such matter for the first time in appeal. To decide whether a document has really been admitted, a Court of appeal may look into the endorsement, but determination of such a question depends also on the order of the Court, statement of the parties and the evidence led in the case. It is only for purposes of reference and identity that a document tendered in evidence is marked as an exhibit, and the mere fact that the endorsement is in any way defective does not by itself lead to the conclusion that the document has not been admitted in evidence. A Court of appeal is not expected to act mechanically but must take a reasonable and judicial approach and unless it comes to the decision that by failure to comply strictly with Order 13, rule 4, some prejudice has resulted to a party, it is not justified in recommending the case. Section 99 of the Code of Civil Procedure lays down a guideline in such cases. There is a statutory and mandatory provision contained in this section that no decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, nor affecting the merits of the case or the jurisdiction of the Court.