Spl. Civil Applns. Nos.1331 and 1846 of 1978

15th January, 1982.

Petitioner Counsel: B.G. Vaidya i/b M/s. H.V. Mehta and Co. and M/s. Bachubhai Munim and Co., for
Respondent Counsel: V.T. Walavalkar with Mrs. M.V. Shetty. N.V. Kamat and P.B. Karhadkar, .

Cases Cited:
AIR 1971 SC 1949 [Para 3]
(1968) 70 Bom LR 683,1968 Mah LJ 879 [Para 2]
(1966) 68 Bom LR 228 [Para 2]
AIR 1954 Bom 305,56 Bom LR 147 [Para 2]

JUDGMENT

JUDGEMENT :-Normally I would have discharged the rule in this petition on the threshold itself because it challenges an interlocutory order passed by the Additional Chief Judge of Small Cause Court at Bombay disallowing the exhibition of a sale-deed on which the petitioner wanted to rely. Since, however, the petition has been admitted and rule granted on the same and since arguments have been advanced before me on the interpretation of a judgment of Court I have proceeded to hear and dispose of this petition on merits.

2. Before the learned Additional Chief Judge of the Small Cause Court reliance had been placed by the petitioner on a sale-deed but the executant of the sale-deed was not examined. The proof of the signature of the executant, however was offered but that itself could not prove the contents of the sale-deed or the truth of the contents of the sale-deed. On this ground the learned Judge refused to exhibit the sale-deed. While so doing he relied upon a judgment of Division Bench of this Court "In the matter of Mr. D and Mr. S" (1966) 68 Bom LR 228) in which it was held:

"To conclude this part of the discussion, we hold, in the first place that what has been formally proved is the signature of Abreo and not the writing of the body of the document at Exh.28 and secondly, that even if the entire document is held formally proved, that does not amount to a proof of the truth of the contents of the document. The only person competent to give evidence on the truthfulness of the contents of the document was Abreo."

This view in fact confirms the view taken by Bhagawati J., as he then was, in Madholal Sindhu v. Asian Assurance Co. Ltd. (1954) 56 Bom LR 147: (AIR 1954 Bom 305). Both the judgments were noticed by Vimadalal J. in Bhima Tima Dhotre v. Pioneer Chemical Co., (1968) 70 Bom LR 683. In this latter judgment Vimadalal J. has made himself bold to say that he sitting as a single Judge did not agree with the view which the Division Bench has taken and thereafter proceeded to express his own views on the question of the proof of the content of a document. Obviously the views expressed by Vimadalal J. cannot be binding upon a Judge of this Court or any Judge of the subordinate Court because they are only his personal views and they are contrary to the binding decision given by the Division Bench, as Vimadalal J. himself has mentioned.

3. Further the matter is no longer in doubt because in the decision of the Supreme Court in Bishwanath Rai v. Sachhidanand Singh, AIR 1971 SC 1949 it has been held that the correctness the contents of the contents of the letter can only be proved by examining the writer of that letter. In this state of law the view taken by the learned Additional Chief Judge of Small Cause Court is correct and cannot be interfered with.

In the result, this petition must fail. Rule is discharged with no order as to costs. Rule is discharged in Civil Application No.1846 of 1978.

Petition Dismissed