SHYAM LAL Vs. RAM CHARAN

JUDGEMENT

(1.) With reference to the three pleas taken in the memorandum of appeal in this case, the third may be at once omitted inasmuch as the lower Appellate Court clearly says that it believes and acts upon the evidence given on behalf of the respondents. It cannot, therefore, be said that the decree is based purely upon conjecture.

(2.) No argument has been addressed to me on the first plea.

(3.) With regard to the second plea that the lower Appellate Court has acted illegally in wholly ignoring and not considering the voluminous documentary evidence, consisting of village papers and deeds which conclusively negative the theory of exchange, put forward by the defendants, merely because the Court has not made any observation upon this evidence, is not sufficient to satisfy me that the Court wholly ignored and did not consider it. The Court, as I said previously in this judgment, has believed and acted upon the evidence given by the respondents, and the finding is a finding of fact which must be accepted by this Court as final. I note that in this case the lower Appellate Court has not taken care to observe the rules regarding the placing of evidence upon the record. The endorsements upon the documents appear to be as follows: "Exhibit No. 152 admitted against defendants." Section 141 of the Code of Civil Procedure, 1682, directs that there shall be endorsed on every document which has been admitted in evidence in a suit certain particulars. One of those particulars is a statement of the documents having been admitted in evidence. At first sight these words may seem ambiguous; but the Privy Council in their letter dated the 3rd of March 1884, addressed to this High Court of Judicature explain the view they take of these words. They say that the Judge shall then endorse with his own hand a statement that it was proved against or admitted by, as the case may be, the person against whom it was used. The document shall then be filed as part of the record. These were the words used in the Code of 1877, repeated in the Code of 1882, and reproduced in the Code of 1908, Order XIII, Rule 4. The Judge is required to endorse with his own hand a statement on each document that it Was proved against or admitted by the person against whom it was used, and until (his has been done the document is not to be filed as part of the record. This has not been done in the present case. The practice adopted by the learned Munsif is one which their Lordships of the Privy Council have characterised in Sadik Husain Khan v. Hashim Ali Khan 36 Ind. Cas. 104 : 31 M.L.J. 607 : 19 O.C. 192 : 18 Bom. L.R. 1037 : 21 C.W.N. 130 : (1916) 2 M.W.N. 577 : 14 A.L.J. 1248 : 12 M.L.T. 40 : 1 P.L.W. 157 : 4 O.L.J. 22 : 25 C.L.J. 363 : 6 L.W. 378 38 A. 627 at p. 663 (P.C.) as being "illegal as well as slovenly and embarrassing." There is nothing in the present case to show that these documents marked exhibits were ever tendered in evidence and then proved against or admitted by the party against whom they were tendered. The mere production of a document and the handing it over to some officer of the Court to put it on the file is not sufficient. There is no guarantee that such document has ever been shown to the opposite side as a document on which the producer intends to rely, and in some cases documents are produced and afterwards found so embarrassing for the party producing them that it is little wonder if he abstains from tendering and proving the said documents. Anyhow no Court should lay its doors open to the stigma of illegal, slovenly and embarrassing procedure.