Sibghat Ullah Khan, J. - (1.) S.C.C. Suit No. 486 of 1971 filed by landlords-petitioners against tenants respondents was decreed by JSCC, Allahabad on 30.11.1973. Relief of eviction from the tenanted accommodation as well as for recovery of arrears of rent was granted to the petitioners through the said judgment and decree. Tenants filed Civil Revision No. 97 of 1974, against the said judgment and decree. I Additional District Judge, Allahabad allowed the revision through judgment and order dated 4.8.1978 with the result that suit for ejectment and recovery of arrears of rent was dismissed. Said judgment and order of the Revisional Court is under challenge in this writ petition. Revisional Court allowed the revision only on the ground that notice of termination of tenancy and demand of rent was not properly proved. According to the landlord the said notice had been refused to be accepted by the tenants. The envelope containing the original notice and endorsement of refusal made by the Postman was filed before JSCC. Apart from it a copy of the said notice was also filed. During evidence before Trial Court only copy of the notice was proved by the landlord plaintiff. The Revisional Court was of the opinion that the proper course was to open the envelope before the Trial Court and prove the original notice. Revisional Court further expressed the opinion that the copy of the notice which was proved was only secondary evidence and grounds mentioned under section 65 of Evidence Act to bring on record secondary evidence did not exist as original was very much in the file of the Court. This point had not been taken by the tenant before the Trial Court. Even in the grounds of the revision the said point was not taken. While earlier allowing the writ petition on 5.7.2004 (after hearing both the parties), 1 held that objection regarding admissibility of secondary evidence shall be taken at the earliest opportunity before the Trial Court otherwise affected party is debarred from raising the same before appellate or revisional stage. The reason for this proposition being that in case objection is taken before the Trial Court at the first opportunity then the other side may with the permission of the Court if necessary adduce or formally prove the original document. For the said proposition, I placed reliance upon the following 19, authorities:- 1. AIR 1936 Calcutta 164. 2. AIR 1980 (NOC) 7 (Alld). 3. AIR 1955 HP 37. 4. AIR 1953 Assam 80 (DB). 5. AIR 1951 Punjab 223. 6. AIR 1946 Bombay 193. 7. AIR 1917 Madras 671 (DB). 8. AIR 1924 Lahore 273 (DB). 9. AIR 1925 Lahore 347. 10. AIR 1933 Lahore 601 (DB). 11. AIR 1972 Orissa 200. 12. AIR 1953 Mysore 49. 13. AIR 1922 Patna 565 (DB). 14. AIR 1990 Rajasthan 90. 15. AIR 1991 AP 31 (FB). 16. AIR 1964 AP 53. 17. (1907) 34 Calcutta 1059 (PC). 18. AIR 1915 PC 111. 19. AIR 1954 SC 139.
(2.) Learned Counsel for the respondent-tenant has cited the following authorities:- 1. S.T. Khimchand v. V. Satyam, AIR 1971 SC 1865. 2. M. Kumhar v. B.C. Ganeshpuri, 2000 (6) SCC 735. 3. Sir Mohd. Yusuf v. D. and another, AIR 1968 Bom 112. 4. S.M. Mathur v. A.D.J., AIR 1983 Raj 167.
(3.) In the first authority the only thing, which has been said by the Supreme Court is that mere marking of a document as exhibit does not dispense with its proof. In the second authority of the Supreme Court circumstances under which secondary evidence may be adduced have been enumerated. Third authority of the Bombay High Court deals with proof of contents of document. The last authority of Rajasthan High Court states that High Court will not interfere in exercise of writ jurisdiction against order of the Court below refusing permission to lead secondary evidence. None of the authorities cited by learned Counsel for the respondents-tenant have got direct bearing on the question involved in this case. In the instant case as the tenant respondent failed to raise the objection regarding admissibility of the secondary evidence at the stage of the Trial Court hence it was not permissible for the Revisional Court to upset the entire judgment only on the said point.;