No Need To Seek Leave For Leading Secondary Evidence, Reiterates Bombay HC; Directs Circulation Of Order [Read Order]

The Bombay High Court has reiterated the law set out in the recent case of Kartik Gangadhar Bhat vs Nirmala Namdeo Wagh (as reported earlier), and said under the Evidence Act, there is no provision to seek leave for leading secondary evidence and directed the circulation of the judgment to every ‘civil judge in the State of Maharashtra’.

Justice GS Patel passed the judgment in a civil revision application filed by one Parasanbai Dhanraj Jain.

Case Background

At the heart of the matter lies a property in South Mumbai’s Girgaon. On one hand, there are the owners or landlords of the said property - Bipinchandra Doshi and two others, then there is Sunanda, who claims to be the tenant of these premises. While the applicants claim that they have been the direct tenants of the said property since November 1984, Sunanda has also claimed that she had given the premises to Saraswat Cooperative Bank on a sub-tenancy.

On the basis of a document dated November 21, 1984, it was alleged by the bank, the landlords as well as the applicants that the bank surrendered its sub-tenancy to Sunanda and she, in turn, surrendered her tenancy to the landlords.

It was the case of the applicants that due to the bank relinquishing its sub-tenancy to Sunanda and her own relinquishment of the tenancy, they (applicants) were kept in possession as direct tenants of the landlords. Landlords confirmed this and the fact that they had been receiving rent towards the said property since January 1985 from the applicants.

Firstly, Sunanda’s ejectment suit against the bank was dismissed by the lower court on July 27, 2000. Then her appeal against the order was allowed by the appellate court and Sunanda obtained an ejectment decree against the bank.

When Sunanda sought to execute the decree against the bank, the applicants, who are the present tenants, filed an Obstructionist Notice, which was dismissed by a judgment dated January 8, 2008. Against that dismissal, the present revision application was filed before the high court.

Observations and Judgment

The court observed how the appellate court order allowing Sunanda’s ejectment suit against the bank had overlooked crucial details like the fact that she had not paid any rent since 1984: “I will note in passing that the appellate court seemed wholly unconcerned that Sunanda had not an iota of evidence of having paid any rent to the landlords from November 1984 onwards, and that her own so-called transaction with the bank and her case of a continued sub-tenancy beyond November 1984 were riddled with inconsistencies. That Sunanda paid no rent at all to the landlords from 1984, the date of the disputed surrender, until the date of the suit in 1992 is undisputed.”

Justice Patel the noted that in its dismissal of the obstructionist notice, trial court seems to have focused on the fact that the obstructionists did not specifically seek “leave to lead secondary evidence”.

“This, I regret to say, is a misconception that has now attained the proportions of an epidemic, especially in the Court of Small Causes and in the civil courts. Apparently, none of these courts seems to care that there is no provision in the Code of Civil Procedure 1908 or the Evidence Act for any such application. Nobody seems to care either that there are reported decisions starting from Indian Overseas Bank vs Triokal Textile Industries & Ors, by Vazifdar J (as he then was) directly to the contrary and saying that no such application is maintainable, desirable or even necessary,” the court said.

Justice Patel then went on to note the law set out by him in the recent case of Kartik Gangadhar Bhat vs Nirmala Namdeo Wagh, wherein he clearly held that there was no need for permission or to seek leave to lead secondary evidence before the trial court.

“No judge in the subordinate judiciary to this High Court will hereafter will insist on any such application under any circumstances whatsoever. I do not think I can put it in any clearer terms than this. Any such order is wholly illegal and liable to be set aside. A copy of this order is now to be circulated to every Civil Judge in the State of Maharashtra,” he said.

Thus, the impugned judgment of the trial court was quashed and set aside and the Obstructionist Notice filed by the applicants was restored and the court reiterated that the trial court cannot insist on any leave for leading secondary evidence and said the applicants were at liberty to lead the same.