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Civil Revision No.271 of 1982, heard on 22nd February, 1984

---S.12--Evidence Act (I of 1872), S.61--Suit for specific performance- Admission of certified copy of document--Plea that such document would be used to corroborate another document which had already 'been produced on record, held, could hardly be a reason for refusing permission to tender into evidence admitted document--Admissibility of document and its evidentiary value were two different things--Copy of agreement to sell, which was admitted document could be tendered into evidence without formal proof.

Bahadur Shah and others v. Mulk Raj -and another A I R 1934 Lah. 898 ref.

Mian Nisar Ahmad for Petitioner.

Muhammad Afzal Wahla for Respondent.

Date of hearing: 22nd February, 1984.

The dispute subject-matter of this revision petition arose in a suit for specific performance of the agreement to sell, dated 31-12-1975 filed by the petitioner against the respondents. In para. 2 of the plaint salient features of the agreement to sale executed by respondent No.l on his own behalf and on behalf of his wife, respondent No.2 were given alongwith the assertion that a photo copy of the same is being attached with the plaint. The respondents in their written statement admitted the contents of para. 2 of the plaint. It, is pertinent to mention here that ejectment petition was also filed by the respondents against the petitioner before the Rent Controller and in those proceedings the respondents produced a photo copy of the agreement to sell, dated 31st December, 1975 (Exh.P.2) which agreement it will be recalled is the basis of the present suit. A certified copy of the agreement to sell Exh.P.2 was sought to be tendered in evidence in the suit for specific performance by the petitioner. Another document EXh.P.l (site plan) was also sought to be produced in the suit as the same was also produced and exhibited by the respondents in the ejectment proceedings. These two certified copies of the documents were tendered in evidence by the petitioner while making his own statement but the documents were not received in evidence in view of the objection raised by the respondents that the original agreement should have been produced. The petitioner then sought the production of these documents on record when respondent No.l appeared in the witness-box as his own witness. These documents were not admitted into evidence again due to objection raised by the respondents. Thereafter, petitioner submitted a review petition seeking permission to tender in evidence the aforesaid two documents but the review petition was also dismissed vide order, dated 24th January, 1982 of the learned trial Court. One of the reasons given was that as the respondents do not admit that the agreement in question was in their possession, the original or a copy of the same should have been brought on record in accordance with the provisions of the Evidence Act. Hence this revision petition.

2. Learned counsel for the petitioner during the arguments submitted that he will press this revision for admission into evidence of the agreement to sell, dated 31st December, 1975 only. On the question of admissibility of agreement to sell, learned counsel submitted that the document sought to be produced in evidence was the document which was not only an admitted document but also was a document which was produced by the respondents themselves. He added that the certified copy of the document produced by the respondents themselves was produced while cross-examining respondent No.l and that refusal to admit in evidence the admitted document was arbitrary and illegal. He further argued that such an admitted document, according to law, is only to be tendered into evidence and for bringing it on record as a piece of evidence, no formal proof is required. In this connection reliance was placed on a reported case of Bahadur Shah and others v. Mulk Raj and another A I R 1934 Lah. 898. The relevant portion of the judgment is reproduced as under:--

"Mr. Moshin Shah has urged in the first instance that there is no. mortgage deed before the Court and consequently the whole suit must fail. He has based his contention on the ground that the original mortgage deed has not been produced and that the certified copy not having been properly exhibited and brought on the record is inadmissible in evidence. In my opinion there is no force in this argument as it is obvious that the mortgage deed referred to in the plaint was admitted by the defendants in their written statement and the only exception taken to it was in respect of some of its terms. In these circumstances, I do not think it was necessary for the plaintiffs to tender formal evidence either to prove the loss of the original deed or to prove the contents of the certified copy."

3. Learned counsel for the respondents was not able to dispute the fact that in the written statement filed, photo copy attached with the plaint and referred to in para. 2 as well as the other contents of para 2 were admitted by the respondents. It was also not possible for him to dispute that the certified copy of the agreement sought to be produced in evidence is the certified copy of the same document which was produced by the respondents themselves before the learned Rent Controller. The plea in opposition raised by the learned counsel for the respondents was that in case this certified copy is allowed to be tendered into evidence the same will be used to corroborate another document which has already been produced on record as mark I. This can hardly be a reason for refusing permission to tender into evidence an admitted document. The question whether the fact which is ultimately sought to be proved stands established on the basis of the evidence or record is altogether a different matter and cannot be made basis for determining the admissibility of a document into evidence. It is well established that admissibility of a document and its evidentiary value are two different things. I may add that the question whether the time was extended or not by the parties will be gone into by the Court at the time of decision of the suit and the question as to what value is to be attached to a certain document will also be gone into then In view of the matter above it is apparent that the copy of the agreement to sell which is an admitted document could in law be tendered into evidence without formal proof. The learned Court below acted with material irregularity in refusing to admit the said document into evidence. The document in question shall formally be admitted into evidence. The revision petition is accepted leaving the parties to bear their own costs.

A. A.

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