Civil Revision Application No.767 of 1991

6th March, 1996

Petitioner Counsel: Ms. NIRMALA MANGNANI with Mr. RAJIV L. PATIL for Mrs. SEEMA SARNAIK
Respondent Counsel: Mr. D. S. SAWANT for Mr. R. G. BHAGWAT Ms B. JADHAV

JUDGMENT

JUDGMENT :- This Revision Application is directed against the order dated July 18, 1991 passed by the learned Civil Judge, Junior Division, Panvel on Exhibit 43 in R.C.S.No. 153 of 1985. The suit was filed by the Petitioner/Plaintiff mainly against the Defendant No.1 for possession of the suit property. While the Petitioner/Plaintiff was in witness box, he attempted to prove a document which is stated to be a rent note executed between him and Defendant No.1. In that attempt, he made the following statements.

" There was a rent note executed in between me and the Defendant. I have produced the same on record. Rent note shown to me is the same. Defendant No.1 put his signatures in my presence. Also it bears signatures of attesting witnesses by name Khandave and Shaikh Dawal Khan. On 16-9-1978 rent note is executed and on that day signatures had been made on the same. They put their signatures in my presence."

2. After the Petitioner made above said statements in his chief examination, he gave an application stating that the document in question i.e. rent note Exhibit 22/N.P. be marked as exhibit as he has deposed about the execution of that rent note by Defendant No.1.

3. The learned Civil Judge has rejected that application. Hence this Revision Application.

4. According to the learned Judge, the rent note does not bear the signature of the Petitioner/Plaintiff. However, it bears the signature of the witnesses. Therefore, the examination of the attesting witnesses was a must. According to the learned Judge, the statement of the Petitioner/Plaintiff that in his presence, the witnesses and the executant made their signatures is not sufficient for proving the document. In the above view of his the learned Judge rejected the application Exhibit-43.

5. The view of the learned Judge is manifestly erroneous for firstly a rent note is not a document which has to be compulsorily attested, and therefore, it would not attract the provisions of section 68 of the Indian Evidence Act. It is only if the document is required by law to be attested that it shall not be used as evidence unless one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence. Whereas certain other types of documents viz. a Will or a Gift Deed, etc. require compulsory attestation, a lease deed, even if it is in writing, it is not compulsorily required to be attested. Therefore, for proving a lease deed, it is not absolutely necessary that an attesting witness should be examined. Even if a lease deed is attested by the witnesses for proving the same, the examination of attesting witnesses is not a mandatory requirement.

6. For proving the document such as Exhibit 22/N.P., the provisions of the Evidence Act that would be attracted would be Section 47 read with its explanation. That provision says that when the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact. The explanation to section 47 inter alia says that a person is said to be acquainted with the handwriting of another person when he has seen that person write, or............................ In the present case, the Petitioner has stated that the rent note in question has been signed by the Defendant No.1 in his presence and that it bears the signatures of two attesting witnesses also which has been affixed in his presence. This statement prima facie furnishes the proof of execution of the document in terms of section 47 read with its explanation. The view of the learned Judge that the examination of the attesting witnesses was a must, as indicated hereinabove, is manifestly erroneous.

7. However, I find that the Petitioner has made a little haste in giving an application Exhibit-43 even without allowing his deposition to be completed. Merely because in his chief examination he has stated that the rent note in question was signed by Defendant No.1 in his presence, that statement could not be taken at its face value unless, of course, the Petitioner is subjected to cross examination on that point and other relevant facts. It would only be after the cross examination on the point was permitted to be made that the Court could consider the total effect of the evidence of the Petitioner from the standpoint of the question whether the rent note in question has been duly proved under the relevant provisions of the Evidence Act. It would have been better if the Petitioner had waited till his entire deposition was over. Be that as it may, I think the revision application should be allowed in the following terms.

8. The Petition is allowed. The order passed by the trial Court on Exhibit-43 is set aside. It is directed that the Petitioner/Plaintiff shall allow his deposition to be completed and that would mean also the cross-examination part thereof and re-examination, if there be any, and the learned trial Judge shall thereafter address himself to the question as to whether the rent note in question has been duly proved. If he thinks it is duly proved, he shall receive the same in evidence and mark as exhibit. With these orders, the revision Application is allowed. Rule is made absolute. Interim stay is vacated. However, there shall be no order as to costs.

Petition allowed.