- (1.) THIS is a defendants appeal arising out of a suit for ejectment, arrears of rent and damages.
(2.) THE trial court decreed the suit for the reliefs claimed by the plaintiff, and in appeal by the defendants the lower appellate court merely modified the trial court decree in respect of the arrears of rent. Both the courts below have found that the defendants had failed to pay the arrears of rent due for more than three months within one month of service upon them of a notice of demand. The defendants contended that they had paid an amount of Rs. 325/- to the plaintiff on different dates, and led evidence in support of this assertion. It was urged that if this amount was taken into account, it would be found that they were not in default. The evidence in this behalf included a copy of entries made in an account book maintained by the defendant, The original account book, however, was not produced in court and all that was filed was a copy of the entries. The courts below held that the copy was inadmissible in evidence when the original account book had not been produced. Learned counsel for the defendants points out that the copy has been exhibited as Ex. A5 and that there is nothing to show that it was not a true copy. Upon careful consideration, it seems to me that the courts below were fully justified in holding that the copy was inadmissible and in declining to consider it as evidence. The mere fact that a document bears an exhibit number does not necessarily mean that it has been admitted in evidence after complying with the formalities of law. The question whether the copy was admissible was raised in the trial court itself. It was open to that court and also to the lower appellate court in appeal to consider whether the copy could be treated as admissible evidence. Order XIII Rule 4 of the C.P.C. provides for the making of certain endorsements on a document which has been admitted in evidence, and such endorsements have to be made upon a copy where the original entry is contained in a book or account and has been admitted in evidence. Order XIII R. 5 provides for the manner in which a copy may be taken on the record. Sub-rule (1) declares that where a document admitted in evidence is an entry in an account book in current use the party on whose behalf the account book is produced may furnish a copy of the entry, and sub-rule (3) requires that where such a copy is furnished the court must, after causing the copy to be examined, compared and certified in the manner mentioned in O. VII R. 17, mark the entry and cause the account book in which it occurs to be returned to the person producing it. It is plain from an examination of these provisions that the party relying upon an entry in an account book must produce the account book in court, and if the account book Is one hi current use, he may furnish a copy of the entry on which he relies and after that copy has been examined, compared and certified with the original entry, the court will mark the entry and return the account book. Unless the original account book is produced before the court, no copy of any entry contained in that account book can be entertained in evidence. It is apparent that the account book was never produced. Learned counsel relies upon the oral testimony of the defendants showing that the account book was in their possession in court, but that is quite a different thing from producing the account book in court. The account book must be produced and the entry must be marked before the account book is returned. This was not done at all. Learned counsel then points out that if this was not done it was because of an omission on the part of the court and that the defendants should not be allowed to suffer for such omission. It is not possible to accept this contention. The defendants relied upon the entries in the account book and the burden lay upon them to satisfy the provisions of O. XIII R. 5 before they could entitle themselves to produce a copy in evidence. It was not the duty of the court to see that the original account book was produced by the defendants. No such duty has been cast by the law upon the court. When that was not done by the defendants, it cannot be said that the provisions of O. XIII R. 5 were complied with. The courts below were, therefore, plainly right in excluding from consideration the copy marked Ex. A5. Apart from this, there are other considerations upon which the courts relied, and it cannot be said that these considerations were not relevant for the purpose of arriving at the conclusions to which they did.
(3.) LEARNED counsel then relied upon Ramakrushna v. Gangadhar, AIR 1958 Orissa 26 where it was observed by Narashimham, C.J. that if no objection was taken at the time when a document was marked as an exhibit it must follow that formal proof of the document was dispensed with and It was not open to a party subsequently to say that the document should be formally proved in accordance with the law. In that case the Court was considering a document which had been admitted in evidence under S. 90 of the Evidence Act as it purported to be more than 30 years old. If, the Court reasoned, objection had been taken at the time the document was produced the party producing it would have been compelled to lead evidence about the proper custody of the document to the satisfaction of the Court. The facts of that case are distinguishable from the instant one. In the instant case the law enabled the court to admit in evidence a copy of an entry in an account book only after the copy had been examined, compared and certified in the manner set out in O. VII R. 17. Order VII R. 17 requires a party to produce the account book together with a copy of the entry on which he relies, and then directs the court forthwith In mark the document for the purpose of identification and after examining and comparing the copy with the original to certify the copy to be correct, if it is found to be correct and then to return the book to the party and cause the copy to be filed. A duty lies upon the court, after the party has produced the account book, to compare the copy with the original entry in the account book and after the copy has been found to be a true copy of the original entry, to mark the original entry and thereafter to retain the copy and return the account book. Where the statute contains a mandatory provision requiring the court to follow a certain procedure before admitting n document in evidence, any waiver or want of objection on the part of the contesting party will not make the document admissible in evidence.;