In RSA-4927-2002 (O&M)-PUNJ HC- Objection regarding mode of proof is required to be dealt with by First Appellate Court when it is raised, so as to enable appellant to avail opportunity to prove these documents, in accordance with law by removing objections raised by respondents: P&H HC
Justice Harkesh Manuja [29-10-2022]

Read Order: Satish Kumar v. State Of Haryana and Others

Monika Rahar

Chandigarh, November 7, 2022: While dealing with a case wherein four documents (two postal receipts and two acknowledgments) were exhibited on record after an application filed by the plaintiff-appellant in this behalf was allowed by the First Appellate Court despite an objection being raised by the respondents, the High Court of Punjab and Haryana has held that the First Appellate Court never observed or recorded any finding on the said objection in exercise of its powers under Order 13 Rule 3 CPC, while deciding the main appeal, meaning thereby that the same was overruled and the documents were accepted being duly proved in the evidence. 

Further, the Bench of Justice Harkesh Manuja held, 

“... the objection regarding mode of proof was required to be dealt with by the first Appellate Court at the time when it was raised, so as to enable the appellant to avail an opportunity to prove these documents, in accordance with law by removing the objections raised by the respondents.”

On such failure, the Bench added, 

“Having failed to adopt the aforesaid fair procedure, besides having not even dealt with the objection in the impugned judgment, the appellant could not be put to a disadvantageous position at this stage as the same even enables this Court to draw an inference of the rejection to the objection raised by respondents by the learned first Appellate Court.”

Challenge in the present appeal was made to the judgments and decrees whereby a suit for mandatory injunction filed at the instance of appellant/plaintiff seeking relief of regularization of services w.e.f. from September 15, 1993 along with consequential benefits was dismissed. 

The facts leading to the present appeal are that the appellant/plaintiff got appointed as Sweeper on part-time basis in Government High School in 1990, his name having been sponsored by the Employment Exchange Rohtak. 

Relying upon a 1980 letter issued by the Office of Director, Education Department Haryana directing regularization of services of part-time employees with three years experience and recommended by the Employment Exchange, the appellant/plaintiff issued a legal notice under Section 80 of the Code of Civil Procedure upon respondents- defendants, seeking his regularization beside claiming consequential service benefits. 

However, faced with deafening silence, the appellant/plaintiff filed a suit for mandatory injunction seeking his regularization as well as other consequential service benefits. 

The respondent/defendant filed a joint written statement stating therein that the appellant/plaintiff was not entitled for regularization of his services as per the 1980 letter as the same was superseded by a subsequent letter of 1995 issued by the office of Financial Commissioner and Secretary to Government of Haryana, Education Department. The suit was also contested on the ground of want of notice under Section 80 of the Code of Civil Procedure, 1908 as its receipt was disputed.

The Trial Court held that the plaintiff was entitled to get his services regularized with consequential service benefits w.e.f. September 15, 1993, but it dismissed the suit for not being maintainable, by holding that the appellant/plaintiff was not able to prove service of notice under Section 80 of the Code of Civil Procedure, upon the respondents/defendants.

The appellant/plaintiff challenged the judgment and decree of the Trial Court in appeal. Simultaneously, cross-objections challenging the findings recorded by the trial Court holding the plaintiff entitled for regularization of his services, was also filed. 

During pendency of the first appeal, the appellant/plaintiff moved an application under Order 41 Rule 27 seeking permission to produce and prove on record two postal receipts besides two acknowledgments. The aforesaid application was allowed by the First Appellate Court. The two postal receipts and the two acknowledgments were exhibited on record as Exhibit A1 to A4 respectively, though the same were objected to. 

The First Appellate Court dismissed the cross-objections thus, up-holding the findings recorded in favour of the appellant/plaintiff. However, the appellant/plaintiff was non-suited again for want of proof of notice under Section 80 CPC having been served upon the respondents. 

The State counsel representing the respondents submitted that despite having been granted permission by the First Appellate Court for production of documents Exhibit A1 to A4, the same were simply tendered and made part of the record, but were never proved as per law of evidence. He further submitted that mere exhibition of a document does not amount to its proof . 

After hearing the parties, the Court observed at the very outset that the legal notice which was issued by the appellant/plaintiff through his counsel was duly dispatched to the addresses i.e. respondent No.2 besides the Secretary, Department of Education, Haryana, and the same were even served upon them as well. 

Thus, on the point of service of such notice, the Court observed that there was a total misreading of the documentary evidence on the part of the First Appellate Court while holding that the appellant/plaintiff was not able to prove issuance of legal notice under Section 80 CPC to the Secretary Department of Education Haryana or even to the Director Secondary Education Haryana. 

It was argued by the respondents that the documents Exhibit A1 to A4 (the postal receipts and acknowledgments) were, though permitted to be produced on record, were never proved in accordance with law. 

From a perusal of an order under First Appellate Court, the Court observed that an objection was raised by the respondents at the time when the documents Exhibit A1 to A4 were tendered in evidence and exhibited, however, neither the said objection was dealt with there and then; nor even the same was ever pressed upon by the respondents at the time of final hearing before the First Appellate Court. The Court further observed that the First Appellate Court never observed or recorded any finding on the said objection in exercise of its powers under Order 13 Rule 3 CPC, while deciding the main appeal, meaning thereby that the same was over-ruled and the documents were accepted being duly proved in the evidence. 

More than that, the Bench opined that the First Appellate Court nowhere discarded the documents Exhibit A1 to A4 for want of mode of proof or their admissibility, but were not considered for want of their evidentiary value. 

“It may be pointed out here that Exs.A-1 to A-4 are the original postal receipts and the acknowledgment; thus possibly there could not have been any objection as regards admissibility, however, though, the objection regarding mode of proof was required to be dealt with by the first Appellate Court at the time when it was raised, so as to enable the appellant to avail an opportunity to prove these documents, in accordance with law by removing the objections raised by the respondents”, the Court held. 

Resultantly, the appeal was allowed.