IMRIT CHAMAR Vs. SRIDHAR PANDAY

JUDGEMENT

(1.) This appeal is directed against a decree of dismissal in a suit for redemption of an alleged usufructuary mortgage. The defendants deny the title of the plaintiff and their contention has found favour with the Courts below. Upon the present appeal, the decree of the Subordinate Judge has been assailed on behalf of the plaintiff, on three grounds; namely, first, that a certified copy of a perpetual lease dated the 21st December 1874 was improperly rejected by the Court of first instance; secondly, that the first mortgage deed was improperly excluded from evidence upon a misapprehension of the legal effect of the provisions of Section 90 of the Indian Evidence Act; and, thirdly, that the Court of first instance ought not to have received in evidence a road-cess return produced by the defendants as evidence in their favour, because it does not show the name of the predecessor of the plaintiff as a tenant of the disputed property.

(2.) In so far as the first of the grounds is concerned, it has been argued that the two reasons assigned by the Court below for exclusion of the perpetual lease of the 21st December 1874, are erroneous in law. In our opinion, this contention is well founded. The Subordinate Judge, in agreement with the primary Court, has held that as the plaintiff had failed to put in process- fee for the issue of warrant against the person called upon to produce the original of this lease, he was debarred by reason of his own default from using the certified copy as secondary evidence. The Subordinate Judge has further held that even if the copy was received in evidence, it would not be of any assistance to the plaintiff, because the recitals of the boundaries in the schedule to that document are not admissible in evidence against the plaintiff who was no party to the transaction.

(3.) In so far as the first reason is concerned it is not disputed that the plaintiff had caused summonses to be served upon the witness who had custody of the original and was called upon to produce it. The witness, however, did not comply with the order of the Court. The plaintiff subsequently applied for the issue of a warrant against the witness but no process-fee was paid for service of the writ. This does not, in our opinion, amount to default on the part of the plaintiff. As was pointed out by this Court in the case of Bhagabat Prasad Singh v. King Emperor 14 C.L.J. 120 : 11 Ind. Cas. 794 under Section 130 of the Indian Evidence Act, no witness who is not a party to a suit can be compelled to produce his title-deed to any property, or any document in virtue of which he holds any property as pledgee or mortgagee or any document the production of which might tend to incriminate him, unless he has agreed in writing to produce them with the person seeking the production of such deed or some person through whom he claims. It cannot be disputed that the lessee under the perpetual lease of the 21st December 1874 was entitled to urge that the document was his title-deed, and that he was not bound to produce the original except in the event contemplated by Section 130 of the Indian Evidence Act. It is not alleged that the lessee had agreed with the plaintiff in writing to produce the original in Court. Consequently, if, after service of summons upon him, he did not pro duce the original, the plaintiff became entitled to use the certified copy as secondary evidence. The first reason assigned by the Subordinate Judge in support of his order of rejection of the document cannot, therefore be supported.