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Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 77 of 155)
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that he was entitled to read or have read to the Court and jury
before ft the prosecution had concluded their case a letter or other
documents, which a witness for the prosecution admitted in cross-
examination had been written by him and which contained statements on
relevant matters, without giving the prosecution a right of reply. That
contention involves the assumption that a letter or other document may
be read to the jury in evidence in a trial without such document;
having been put in evidence and without any obligation being incur-
red to put such document in evidence. This is an assumption which
cannot be supported. The fact that a witness for the prosecution has
admitted in cross-examination that a document was written by him does
not make it incumbent on the prosecution to put that document in as part
of the evidence for the prosecution, although that document may contain
a statement relevant as contradicting, explaining, or raising a doubt as
to the value of the oral evidence of the witness. Thus the prosecution
might be satisfied that the oral evidence was true and that the document
had been prepared in collusion with the accused or fabricated as a trap or

(1) 10 0. 1021. (2) 14 0. 245. (3) 17 C, 930. (4) 14 B. 436.

(5) Not reported.

509



14 All. 218 INDIAN DECISIONS, NEW SERIES [Vol.

1892 might have other good reasons for declining to put in a document of which
APRIL 18. U P fc * na ^ moment it bar) had no notice as evidence for tho prosecution.
Nor is it incumbent on tbe presiding Judge to exorcise his right of putting
EXTRA- the document [218] in as evidence. If tha accused desires to have the
ORDINARY benefit of such document as evidence, and he cannot have tha benefit of it
ORIGINAL as ev ^ ence unless it is put in as evidence, he must pub it in as evidence,
_ if neither the prosecul/ion nor the presiding Judge will put it in as evidence.

UIVIL. rpj, Je i3iffi cu it;y arises from the fact that it may be convenient and desirable
14 A. 212= that the document should be read to the jury whilst the witness is under
12 A.W.N. cross-examination ; and from the fact thats. 289 of the Code of Criminal
(1892) 63. Procedure does not apparently authorize the accused to adduce evidence
until the examination of the witnesses for the prosecution and the pri-
soner's own examination have been concluded. Ss. 286 to 296 of the
Code prescribe tbe procedure to bo followed in Sessions trials from
the opening of the case for the prosecution to the close of the case
for the prosecution and defence. I can find nothing in any of those sec-
tions to suggest. that an accused person or his pleader can, before the
examination, of the witnesses for the prosecution has been concluded,
adduce evidenco for the defence : indeed, the language of s. 289 strongly
indicates that evidence for the defence can only be adduced at a Sessions
trial after the examination of the witnesses for the prosecution and the
examination of the accused are concluded, for then, and not till then, is
the accused to be asked whetber he means to adduce evidence, a proce-
dure which is inconsistent with a right or the exercise of a right by or
on behalf of an accused to adduce evidence at an earlier stage of the trial.
There is, however, nothing in any of those sections to show that an
accused person is precluded from stating for his own benefit, or intimating
at any time whilst the witnesses for the prosecution are being examined,
tha^3 ho intends to a 'duce evidence for his defence. It has been contended
that the reading to the jury in Court by counsel for the accused, or the
causing a witness called for the prosecution, to read a letter or other docu-
ment written by the witness, which has not otherwise been put in evidence,
is not an adducing evidence by or on behalf of the accused and does not
amount to an intimation on behalf of the accused itbat'such document will at
the proper time be put in evidence by the accused, and that in that respect
such docu- [219] ment stand on a footing different from that of other docu-
mentary evidence. It appears to me that the fact that the latter or document
was admitted by the witness to have been written by him is immaterial,
and the position would be the same if the latter or document was one which
the witness had sworn he had not written and had no previous knowledge
of, and had stated in his evidence to be in the writing of some one else, as
e.g., of another witness for the prosecution. In either case neither the
prosecution nor the defence could read or have the letter read to the
Court and jury, that is, use it as evidence, until it was put in as evidence,
or, to use tbe language of the Code, until it had been adduced as evidence,
or unless upon an undertaking that the party desiring to use it as evi-
dence, would at the proper time put ib iu formally as evidence. Such an
undertaking should be carried out ; with the result that the prosecution
would be entitled to a reply. Such an undertaking is, as a general rule,
I understand, implied and not expressed. A similar undertaking is implied
when counsel in opening the case for the prosecution, or the accused or his
pleader in opening the case for the defence, reads to the Court a letter or
other document not at that time put in as evidence. If the reading of the
letter or document at that stage of the trial is not objected to, the party

510



Y1I] QUBEN-EMPRSSS . G. W. HAYFIELD 14 All. 221

reading it impiiedly undertakes to pub it in as evidence at the proper time 1892

as part of the evidence adduced by bim. If the opposite party objects to APRIL 18.

the letter or document being read to the jury until it is a proved and pub

in as evidence, it cauuot be read to the jury until it ia proved and put in EXTRA-

as evidence in the case. It is obvious tbat a letter or document cannot be ORDINARY

read to the jury unless it has been put in as evidence at the trial, or unless ORIGINAL

the party using it as evidence expressly or impiiedly undertakes to put it p

in as evidence at the proper time. O1VIL.

If a fact has to be proved at a criminal trial, the evidence which 14 1.212 a
proves that fact must be adduced. If such fact is to be proved by oral 12A.WN,
evidence, the oral evidence must be adduced. Similarly if the fact is to ba (1892) 63.
proved by documentary evidence, the documentary evidence must be
adduced. The only essential difference is that the [220] oral evidence of
the fact may be obtained from the cross-examination of a witness of the
opposite party without that witness being made a witness for the party
who in cross-examination has extracted the evidence of the fact which he
wishes to prove. When a document has been put in evidence by either side
its contents are before the jury, and its contents may or may not afford
evidence, or may be the sole admissible evidence, of a particular fact. The
document so pufe in evidence is, no matter for what purpose it may be
used by either party, evidence adduced by the party who put it in as
evidence. An example of bowa document in the writing of a witness may
be used without involving the necessity of putting the document in as
evidence is afforded by a. 145 of the Indian Evidence Act. Under that
section : " a witness may be cross-examined as to previous statements
made by him in writing or reduced into writing, and relevant to matters
in question, without such writing being shown to him or being proved."
In such cross-examination the exact words used in the writing as to
which it is desired to obtain an admission should be put to the witness.
If the witness ad. nits that he did write those words, that admission
is evidence of the fact that on a previous occasion he made the statement!
which those words convey. If the witness denies that he ever made that
statement, the person who is -cross-examining can put the document
into the hands of the witness and tell him to look at it, or at a portion of
it, and ask him if he still denies having made that particular statement.
The witness may either admit or deny that he made the statement. So
far the person cross-examining the witness has incurred no obligation to
put the document in as evidence. If the witness admits that he made
the statement, the person cross-examining has obtained all that is neces-
sary and is under no obligation to put the document in as evidence. If
the witness denies that he made the statement, the person cross-examin-
ing has two courses open to him. He may decide not to put the
document in as evidence; in which case he must accept; the denial
of the witness as conclusive, and lay. himself open to the observation
that he put to the witness a question suggesting that the document
contained a statement which in fact it did not. On the other [221]
hand, he may decida to put the document in as evidence showing
tbat the witness had on a previous occasion made a particular statement
and then contradicted it. In the latter ease the document when proved
should be put in formally as evidence when the parhy who intends to use
it as evidence is adducing his evidence. Similarly, if a witness in cross-
examination denies that on a previous occasion he made on a relevant
matter an oral statement inconsistent with, or which would give a different
complexion to his evidence at the trial, the person cross-examining the

511



14 All. 222 INDIAN DECISIONS, NEW SERIES [Yol.

1892 witness musk accept the denial as conclusive, unless he can, by the cross-
Ai'uiL is. examination of the person to whom the oral statement was made, in case

auch witness happens to be a witness for the other side, or by calling such

EXTRA- person as a witness for bis own side when he is adducing his evidence,
ORDINARY P r ove that the statement was in fact made.

ORIGINAL
CIVIL. I* A. 221-12 A.W.N. (1892) 66.

H1~212- APPELLATE CIVIL.

12 A.W.N. Before Sir John Edge., Kt., Chief Justice, Mr. Justice Tyrrell, and
(1892) 63. Mr. Justice Blair.



SANT LAL AND OTHERS (Judgment- debtors] v. SRI KISHEN AND
ANOTHER (Decree-holders)* [20th April, 1892.]

Rules of Court of the SCtth November 1889 Practice Memorandum of appeal Appeal
described as "first appeal from order" instead of first appeal from decree,

It is not a fatal objection to an appeal that the same is described in the memo-
randum as " First appeal from Order " being in reality a First appeal from a
decree, it not being shown that the respondent was in any way prejudiced by
such misdesoription or that by reason thereof an insufficient stamp was placed
on the memorandum. Kcdar Nath v, Lalji Sahai (1) quoad this point distin-
guished.

[F., 22 A. 430-20 A.W.N- 136.]

THIS was a reference made at the instance of Mahmood, J., to a
Bench of three Judges. The facts of the case, so far as they are neces-
sary for the purposes of this report, appear from the judgment of the
Court.

MR. Abdul Majid and Mr. Malcomson, for the appellants.

[222] Munsbi Ram Prasad and Babu Sirish Ghandar, for the respond-
ents.

JUDGMENT.

EDGE, C. J., TYRRELL and BLAIR, JJ.-^In this case the memorandum
of appeal when presented and admitted was headed " First Appeal from
Order." Subsequently it appeared that the order in question was an order
under s. 244 of the Code of Civil Procedure, and consequently came
within the definition of decree, as decree is defined in s. 2 of that Code.
It was contended on the authority of the decision of a Divisional Bench
in the case of Kedar Nath v. Lalji Sahai (1), and on the authority of an
unreported case, First Appeal from Order No. 70 of 1890, decided
by a Divisional Bench on the 9fch January, 1891, that the appeal having
been misdescribed should be dismissed. On the other hand, it was
contended on the authority of an unreported decision of a Divisional
Bench in First Appeal From Order No. 15 of 1890, decided on the 15th
April, 1890, that the misdeecription, if any, might be corrected and
the appeal heard. The proper description of the appeal in question,
according to the practice of this Court at the time when the appeal was
presented, was simply "First Appeal." That is the practice as embodied
in Eule 9 of the Rules of Court of the 30^ November, 1889. The mis-
description, if it is one, did not take any one by surprise. It did not

First Appeal, No. 239 of 1890 from a decree of Rai Pyate Lall, Subordinate Judge
Of Meerut, dated the 8th Feb ruary, 1690.

(1) 12 A. 61,

512



11]



SRI KISHEN V. ISHRI



All.



in any respect affect the stamp on which under the Court Fees Act 1892

the memorandum should be presented, whether it was a memorandum APBIL 20.

of appeal from a decree or a memorandum of appeal from an order strictly

so called. The decision of the Divisional Bench reported in the Indian APPEL-

Law Eeports, 12 Allahabad, p. 61, was apparently based on the former LATE

practice of this Court and related, as appears by the dates, to a memo- CIVIL

randum of appeal which bad been presented before the rules of Court

of the 30bh November 1889 came into force. The decision in the li A. 221 =

unreported case, First appeal from Order No. 70 of 1890, wag in a case 12 A.W.H.

in which no application to amend the memorandum of appeal was appa- (1892) 66.

r&ntly made. The memorandum of appeal has been already amended

in this case, and we are of opinion that the appeal should be heard as

a First Appeal from a decree as a decree is denned in [223] s. 2 of the

Code. We do not for one moment suggest; that an application for

revision under s. 622 could be treated as a memorandum of appeal from

a decree or an order.



14 A, 223 = 12 A.W.N. (1892) 73,

APPELLATE CIVIL.
Before Sir John Edge, Kt., Chief Justice, and Mr. Justice Blair.



SRI KISHEN (Plaintiff) v. ISHRI AND ANOTHER (Defendants}*
[4th May, 1892.]

Land-holder and tenant Suit for ejectment against occupancy tenant ani hii mortgagee
Limitation' Act XV of 1877 Act XZIo/ 1881, s. 94,

The plaintiff, a zamindar, sued one Ishri, an occupancy tenant, foe ejectment
under s. 93 (b) of the N.W.P. Rent Act (XII of 1881), and to that suit one C.
D., a mortgagee of the occupancy holding who had obtained a foreclosure decree
against the occupancy tenant, got himself made a party defendant under s, 112- A
of the Act. The pleadings, however, were not amended and the suit proceeded
to appeal before the District Judge.

Held that under the above circumstances the suit as against C-D., the inter-
vening defendant (who, so far as the plaintiff was concerned, was a trespasser)
was of a civil nature and therefore subject to the ordinary rules of limitation as
laid down in the Indian Limitation Act and not to the special limitation pres-
cribed by s. 94 of Act XII of 1881.

THE facts of this case sufficiently appear from the judgment of the
Court.

Pandit Sundar Lai, for the appellant.

Pandit Bishambar Nath and Babu Durga Charan Banerji, for the
respondents.

JUDGMENT.

EDGE, C. J., and BLAIR, J. The appellants are representatives of
the plaintiff in the suit. The plaintiff brought his suit in a Court of
Revenue under 8. 93, cl. (o), of Act No. XII of 1881 to eject an occupancy
tenant who was not a tenant at fixed rates. The tenant was one Ishri.
The plaintiff relied for the maintenance of his suit on the fact that Ishri
had, on the 4bh August, 1881, mortgaged his occupancy holding to one
Ganga Din, and that Ganga Din on the 21st December, 1888, had got a

* Second Appeal No. 90 of 1890, from a decree of G. J. Nioholls, Esq., District
Judge of Cawnpore, dated the 30th November, 1889, confirming a decree of Maulvi
Muhammad Jawad, Assistant Collector of Cawnpore, dated the 22nd April, 1889.



A VII-65



513



14 All. 224 INDIAN DECISIONS, NEW SERIES [Yol.

1892 decree for foreclosure of his mortgage. After the suit had been instituted,
MAY 4. Ganga Din, on his [224] own application, was made a party to the suit

under s. 112 (a) of Act XII of 1881. No amendment of the pleadings took

APPEL- place, but the suit proceeded against Ishri and Ganga Din. The Court of

LATE Eevenue dismissed the suit on the ground of limitation, applying e 94 of

CIVIL. Act No. XII of 1881. The plaintiff appealed to the District Judge and he

dismissed the appeal on the ground of limitation, applying the same section

14 A. 223= as tbat which has been applied by the Court of Eevenue.
12 A.W.N. From the decree of the district Judge this appeal has been brought

(1892) 78. by the plaintiff. It is quite clear that, applying the principle of the Full
Bench decision in Madho Lai v. Sheo Prasad Misr (1), the suit, apart
altogether from any question of limitation, cannot be maintained as against
Ishri. This appeal consequently, as against him, is dismissed. As do
the position of Ganga Din, the main difficulty has arisen in this Court
from the fact that no amendment of pleadings was made. It is quite clear,
however, from the record what his case was. His case was that he, by
reason of the mortgage and the decree of foreclosure, took title to the
occupancy holding, and if not in possession was entitled to possession, and
further that the limitation provided by s. 94 of Act No. XII of 1881
applied to his case. Now the suit originally, into which Ganga Din of
his own motion intruded himself as a defendant, was one of ejectment,
i.e., a suit by the plaintiff claiming as a relief a decree for possession of
the occupancy holding. By intruding himself into the suit, notwithstand-
ing that there has been no amendment of the pleadings, Ganga Din must
be taken to be maintaining his right, if any, under the mortgage and
decree and his right to have possession of the occupancy holding. So
far as Ganga Din is concerned, the suit must be regarded as a civil suit.
By reason of s. 9 of Act XII of 1881 no right of occupancy passed to
him, and consequently he could not, on the title alleged by him, be
entitled to obtain or retain possession of the occupancy holding. If
in possession, his possession, being without the consent of the plaintiff,
would, so far as the plaintiff is concerned, be the possession [2253
of a trespasser. 'He could obtain from Isbri no greater title than Ishri
bad. Ishri's title was that of an occupancy tenant who was not a
tenant at fixed rates, and that title Ganga Din by reason of s. 9 could not
obtain. He, consequently, as against the plaintiff, had no title to the
possession of the occupancy holding, the plaintiff, being the zemindar
landlord. That disposes'of the question of title, subject only to the ques-
tion of limitation. Now s. 94 of Act XII of 1881 provides only for a
limitation with regard to the suits dealt with by that Act, and it does not
in this case, so far as this suit is one between the plaintiff zemindar and
Ganga Din, the trespasser, supersede the provisions of the Indian Limita-
tion Act of 1877. So far as the suit between the plaintiff and Ganga Din
is concerned, it happens that Ganga Din has intruded himself into a suit
which was commenced in the Court of Revenue, but the suit as against
him must be treated as a Civil suit. The question of jurisdiction is at this
stage immaterial, because the appeal went before the district Judge, who
had jurisdiction, whether the suit was commenced in the proper Court or
not, i.e , he had jurisdiction whether the suit was commenced in the
Eevenue Court or in the Civil Court. So far as Ganga Din is concerned,
the limitation is that provided by the Indian Limitation Act of 1877, and
the suit as against him is within time within that Act. The decree which

(1) 12 A, 419.
514



YII] ' MD. NAIM-UL-LAH KHAN V. IHSAN-UL-LAH KHAN 11 All. 22TT



we pass as against G}nga Din is that tha appeal ba allowed with costs,
and that Ganga Din has, as against the plaintiff, obtained no title to the
possession of tha occupancy holding, and that the plaintiff do have posses-
sion of the occupancy holding as against Ganga Din. The decree below
will stand so far as Ishri is concerned, i.e., as a decree of dismissal.

Appeal allowed.



II A. 226 (F B ) = 12 AWN. (1892) 14.
[226] FULL BENCH.

Before Sir John Edge, Kt., Chief Justice, Mr. Justice Straight,
Mr. Justice Mahmood and Mr. Justice Knox.



1392
MAY i.

APPEL-

LATE

CIVIL.

14 A. 223 =

12A.W.H.

(1892) 73.



MUHAMMAD NAIM-UL-LAH KHAN (Defendant) v. IHSAN-UL-LAH
KHAN (Plaintiff).* [23rd January, 1892.]

Civil Procedure Code, ss. 206, 532, 5R8, 591 Letters Patent, North-Western Provinces,
s. 10 Amvndmtnt of decree Order of a Single Judge of the High Court amending
an appellate decree Appeal frtm such order,

Whether an order made by a single Judge of tha High Court directing the
amendment of a decree passed in appeal by a Division Bauch of whiob he had
been a member is an order made under s. 206 read with ss. 582 and 632 of the
Code of Civil Procedure, or by virtue of the inherent power which the High
Court has in the exercise of its appellate civil jurisdiction to amend its own
decrees, it is one to which the provisions of Chapter XLIII of the Code of Civil
Procedure are applicable, and from such order no appeal under s. 10 of the
Letters Patent will lie. Hurresh Chunder Chowdhry v. Kalisundari Dabia (1)
discussed.

[F,, 1 Ind. Gas. 137 ; R., 15 A. 359 ; 15 A. 373 ; 16 A. 443 (448) ; 17 A. 438 ; 28 A.
133 = A,W.N. (1905', 218; 260. 361; 20 M. 407; 22 M. 68 = 8 M.L.J. 231

(F.B)]

THIS was a reference made by Edge, C.J., and Straight, J., to a
Bench of four Judges. The plaintiffs-appellants in the Latters Patent
appeal out of which this reference arose, had brought a suit in the Court
of the Subordinate Judge of Saharanpur for the recovery of certain pro-
perty detailed in schedules marked A^ B, C, and D attached to their plaint.
Before a defence was file:! or issues framed the plaintiffs applied to be
allowed to amend their plaint by making certain additions to the property
detailed in schedules A and B. This application was granted, and a note
was made in the plaint of the increase in the amount claimed ; but the
list of the property so added was inadvertently omitted to be attached to
the plaint. The plaintiffs' suit was in part decreed and in part dismissed
by the Subordinate Judge, and the plaintiffs in consequence appealed to
the High Court. In that appeal a decree was passed by consent modify-
ing the decree of the Court of first instance. Subsequently to the decision
of that; appeal the plaintiffs applied to the Court of first instance for
amendment of its decree by inserting a detail of the property added on
the petition for amendment of plaint, which application was granted.
227] From the order on that application, however, an appeal was pre-
ferred to the High Court by the defendants, and this appeal was decreed
on the ground that after an appeal had bean preferred and decided, the
-Court of first instance had no jurisdiction to pass any order under s. 206

* Letters Patent Appeal No. 13 of 1890.

(1) 10 I, A. 4 = 9 C. 482.



515



13 All. 228



INDIAN DECISIONS, NEW SERIES



[Yol.



1892

JAN, '23.

FULL
BENCH.

14 A. 226

(F.B.)
12A.W.N.

(1892 14.



of the Code of Civil Procedure. The plaintiffs, therefore, applied to the
High Court for amendment of its decree in the manner previously prayed
for in the Court of first instance. That application came before Tyrrell, J.,
as the remaining Judge of the Bench which had passed the decree, and
was granted by him. From that order the defendants appealed under
s. 10 of the Letters Patent, and on the appeal coming on for hearing the
plaintiffs-respondents took a preliminary objection that the appeal did
not lie.

Pandit Sundar Lai, for the appellants.

The Hon. Q. T. Spankie and Munshi Bam Pia&ad, for the respond-
ents.

JUDGMENT.

EDGE, C.J. This Letters Patent appeal came on to be heard by
a Bench of two Judges, when an objection was taken on behalf of tbe
respondent to the apppeal that no apeal lay. It was urged, on the other
hand, that an appeal lay. The Bench was referred to a case decided.
by their Lordships of the Privy Council and to certain decisions of this
Court and the High Court of Calcutta. Thereupon the question as to
whether tbe appeal lay was referred to a Bench of four Judges.

Tbe appeal was brought from an order of our brother Tyrrell by
which he amended a decree of this Court on an appeal, so as to bring it
into accordance with the judgment which had been delivered in the
case. The Judges who were parties to that judgment were Sir Comer
Petheram, the then Chief Justice of this Court, and our brother Tyrrell,
At the time when the application to amend tbe decree was made, Sir
Comer Petheram had ceased to be a member of this Court, and, follow-



Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 77 of 155)