sajikoduvath

Divergent Decisions of Co-Equal Benches and Doctrine of PER INCURIAM

Saji Koduvath, Advocate, Kottayam

Abstract

•• General Law in India: It is a well-settled principle of Indian law that a judgment rendered by the Supreme Court or a High Court in disregard of a binding precedent (Ratio Decidendi) set by an earlier coordinate bench renders the subsequent decision per incuriam.

•• The Full Bench Decision of the Kerala High Court: The Kerala High Court, in Raman Gopi v. Kunju Raman Uthaman, 2011 (4) KLT 458 (FB), held that when there is a direct conflict between two SUPREME COURT decisions rendered by Benches of equal strength, the later decision must be followed – in the light of the mandate under ARTICLE 141 of the Constitution.

•• The Kerala Full Bench Decision did Not Consider the Effect of Divergent Decisions of Coequal Benches of HIGH COURTS: A close reading of the Full Bench decision in Raman Gopi v. Kunju Raman Uthaman reveals – the Full Bench confined its analysis to the binding nature of divergent decisions of co-equal Benches of the SUPREME COURT alone, strictly within the framework of Article 141 of the Constitution (and NOT to the divergent decisions of the HIGH COURTS).

•• Criticism of the Full Bench Decision: Raman Gopi v. Kunju Raman Uthaman is criticised in very strong words in the following two decisions –
• 1. Kumari Alias Mary Francis v. Baby, 2022-6 KHC 270; 2022-5 KLT 614 (P. Somarajam, J.)
• 2. Bindu v. State of Kerala, 2014-4 KHC 772; 2015-1 KLT(SN) 5 (Dama Seshadri Naidu, J.)

•• Supreme Court held in Bilkis Yakub Rasool v. Union of India (B.V. Nagarathna, Ujjal Bhuyan, JJ.), AIR 2024 SC 289; 2024-5 SCC 481 – If a judgment is rendered in ignorantium of a previous binding decision, it is per incurium. Such a per incurium decision would not have a precedential value. It cannot be said that it lays down good law. Such a decision per incurium is not binding.

Part I

What is ‘Per Incuriam‘

‘Incuria’ literally means carelessness. In practice ‘per incuriam’ appears to mean ‘per ignoratium’ (State of U.P. v. Synthetics and Chemicals Ltd. ,T.K. Thommen, R.M. Sahai, JJ. 1991-4 SCC 139).

Black’s Law Dictionary, explains ‘per incuriam’ as under:

“A judgment per incuriam is one which has been rendered inadvertently.”

In Halsbury’s Laws of England (4th Edn. Vol. 26, pages 297-98, para 578), per incuriam has been explained as under:

“A decision is given per incuiam when the court has acted in ignorance of a previous decision … or when the decision is given in ignorance of the terms of a statute or rule having statutory force.” (Quoted in: Siddharam Satlingappa Mhetre v. State of Maharashtra, AIR 2011 SC 312; Bajaj Alliance General Insurance Company Limited vs. Rambha Devi, (2025) 3 SCC 95)

Following decisions make it clear that the rule of per incuriam is attracted when a verdict is given in ignorance of the terms of a statute or of a previous binding decision.

M/S Santosh Associate Private Limited v. Haryana State Industrial and Infrastructure Development Corporation Ltd., 2026 INSC 872
Confederation of Real Estate Developers of India (CREDAI) v. Vanashakti, 2025 6 KLT(SN) 37; 2025 KHC(Online) 6946; 2025 KLT(Online) 3428
Bajaj Alliance General Insurance Company Limited v. Rambha Devi, (2025) 3 SCC 95
State of M.P. v. Narmada Bachao Andolan, (2011) 7 SCC 639
Siddharam Satlingappa Mhetre v. State of Maharashtra, AIR 2011 SC 312
Bore Gowda v. State of Karnataka, (2000) 10 SCC 260
Punjab Land Develop. & Reclamation Corp. Ltd. v. Labour Court, (1990) 3 SCC 682
Municipal Corporation of Delhi v. Gurnam Kaur, AIR 1989 SC 38; (1989) 1 SCC 101
Morelle Ld. vs. Wakeling, , (1955) 2 QB 379 (CA)
Huddersfield Police Authority v. Watson (1947) 2 ALL ER 193
Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718: (1944) 2 All ER 293
Lancaster Motor Co. (London) Ltd. v. Bremith Ltd., , (1941) 1 KB 675 (CA)

Obiter Dicta and Per Incuriam

In Municipal Corporation of Delhi v. Gurnam Kaur, AIR 1989 SC 38, while dealing with the doctrine of per incuriam and principles of sub silentio it was pointed out that the pronouncement without argument, without reference to the relevant provisions of the Act and without any citation of authority is obiter dicta. A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule.

Sub Silentio and Per Incuriam

Professor P.J. Fitzgerald, editor of the Salmond on Jurisprudence, 12th edn., explains the concept of sub silentio at p. 153 in these words.

“A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. …… Precedents sub silentio and without argument are of no moment….”

Decision in Ignorance of Verdict of Coordinate Bench is also Per Incuriam

In National Insurance Company Ltd. v. Pranay Sethi (Constitution Bench) 2017-16 SCC 680, it is held as under:

“A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a co-equal or larger Bench. There can be no scintilla of doubt tha an earlier decision of co-equal Bench binds the Bench of same strength.” (Referred to in: The Karnataka Lokayuktha Bagalkote District, Bagalkot v. Chandrashekar: 2026 INSC 31; 2026 KHC(Online) 6021; 2026 KLT(OnLine) 1013).

Same principle (subsequent benches are bound by the reasoning of earlier co-equal benches) laid down in the following decisions:

Mary Pushpam v. Telvi Curusumary, (2024) 3 SCC 224
State of Uttar Pradesh v. Ajay Kumar Sharma, (2016) 15 SCC 289
P. Suseela v. University Grants Commission, (2015) 8 SCC 129
Rashmi Metaliks Ltd. v. Kolkata Metrop. Develop. Authority, (2013) 10 SCC 95.

Judgment in TOTAL Ignorance Earlier Decision Alone Constitutes Per Incuriam

A Judgment rendered in total ignorance of law or of an earlier binding decision alone constitutes the doctrine of per incuriam. That is, a decision that makes an erroneous appreciation or misconstruction of a binding precedent is not a judgment per incuriam.

Our Apex Court, in Government of A.P. v. B. Satyanarayana Rao, (2000) 4 SCC 262, observed as under:

“The rule of per incuriam can be applied where a court omits to consider a binding precedent….”
Referred to in: Aligarh Muslim University v. Naresh Agarwal (Constitution Bench) 2025-6 SCC 1; 2024-11 SCR 1647
K.S. Panduranga v. State of Karnataka, AIR 2013 SC 2164, 2013-3 SCC 721
Vijay Narayan Thatte v. State of Maharashtra, 2009-9 SCC 92
Parkash Singh Badal v. State of Punjab, AIR 2007 SC 1274; 2007-1 SCC 1
State of Bihar v. Kalika Kuer, AIR 2003 SC 24432003-5 SCC 448

Courts Cannot Refuse Binding Judgments Citing minor Differences

In Official Liquidator v. Dayanand, (2008) 10 SCC 1, it is emphasised as under:

“70. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so.”

In State Through Central Bureau of Investigation v. Hemendhra Reddy, 2023-16 SCC 779 (Surya Kant, J.B. Pardiwala, JJ.), it is said as under:

“81. We would like to extend a word of caution over here. …. The learned Judge cannot simply say “with due respect, I do not agree to the ratio…” or “the decision is per incuriam as a binding judgment of the Supreme Court has not been considered….” and proceed to take a contrary view as done in the impugned order. Such an approach would result in conflicting opinions of Co-ordinate Benches, resulting in judicial chaos and is, thus, improper. This is something atrocious and unacceptable.”

In Mahadeolal Kanodia v. Administrator General of W.B., AIR 1960 SC 936 : (1960) 3 SCR 578] our Apex Court pointed out as under:

“19. … If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of coordinate jurisdiction in a High Court start overruling one another’s decisions.

Decision in Ignorance of Verdict of Coordinate Jurisdiction is Per Incuriam

In Halsbury’s Laws of England (4th Edn.) Vol. 26: Judgment and Orders: Judicial Decisions as Authorities (pp. 297-98, para 578) per incuriam has been elucidated as under:

“A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow (Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718 at 729 : (1944) 2 All ER 293 at 300. (See: Siddharam Satlingappa Mhetre v. State of Maharashtra, AIR 2011 SC 312; (2011) 1 SCC 694)

Not to Follow Coordinate-Bench Decision which is Per Incuriam

In Jai Singh v. Municipal Corporation of Delhi, 2010-9 SCC 385 (B. Sudershan Reddy and Surinder Singh Nijjar, JJ.), it was observed, as regards the legal effect of the divergent decisions of the Courts in India (in general), as under:

“23. … Except in compelling circumstances, such as where the order of the earlier bench can be said to be per incurium, in that it is passed in ignorance of an earlier binding precedent/statutory or constitutional provision, the subsequent bench would follow the earlier coordinate bench.”

If Two Verdicts of Equal Strength of the APEX COURT: Later Decision will Prevail

The Full Bench of the Kerala High Court, in a reference in Raman Gopi v. Kunju Raman Uthaman, 2011 (4) KLT 458 (Pius C. Kuriakose, T.R. Ramachandran Nair & P.S. Gopinathan, JJ.), had to decide how to deal with conflicting views in the decisions of two benches of equal strength of the Apex Court. It was held that in case of conflicting decisions taken in the two Benches of equal strength of the Apex Court, the decision later in point of time, will prevail over the earlier one. It was pointed out –

a decision of the Apex Court on a declaration of law is binding on all High Courts and Subordinate courts under Article 141 of the Constitution of India and
it may not be proper for the High Courts or Subordinate Courts to criticise and characterise a decision of the Apex Court which has laid down a point of law as per incuriam.

The Full Bench (Raman Gopi v. Kunju Raman Uthaman) pointed out that an earlier Full Bench of the High Court, in Joseph v. Special Tahsildar, 2001 (1) KLT 958, had held that in a case of conflict between two decisions of Benches of equal strength of Judges of the Supreme Court, the decision later in time would be binding.

Principles in Raman Gopi Misapplied in Some Decisions

The core ratio decidendi in Raman Gopi v. Kunju Raman Uthaman is that even when an immediately earlier Supreme Court decision is per incuriam – for it deviated from a prior ruling – such a (per incuriam) decision must still be followed by High Courts and subordinate courts. The foundation of this principle is reaped out from Article 141 of the Constitution of India.
It was further held that when a direct conflict arises between decisions of co-equal Benches of the Supreme Court of India, High Courts and subordinate courts cannot declare that a Supreme Court decision is per incuriam.
It is definite that those decisions relied on Raman Gopi v. Kunju Raman, without noticing its restricted scope — that it applies only to Supreme Court precedents rendered by co-equal Benches (and not to High Court precedents given by co-equal Benches) — have misapplied the Full Bench verdict.

Decisions Referred Raman Gopi v. Kunju Raman Uthaman

Raman Gopi v. Kunju Raman Uthaman, 2011 (4) KLT 458, is referred to (dealing with the effect of decisions of co-equal Benches) in the following cases:

M/s. M.D. Esthappan v. Reserve Bank of India, 2025 KER 20437, (Gopinath P., J.)
Madhivanan v. Dhanaraj, 2024-3 MLJ 671, 2024-4 CTC 225; 2024-3 LW 33
Prathyasa Mental Health Counselling Forum v. State of Kerala, 2021-1 KLT(SN) 21 (S. Manikumar, Shaji P. Chaly, JJ.)
Sulochana Gupta v. RBG Enterprises Pvt. Ltd., 2020 KLT(Online) 1051 (S. Manikumar, Shaji P. Chaly, JJ.)
Papaiah Alias S.R. Papi Reddy v. P. Nagaraja Reddy, 2019 3 AIR(Kar)(R) 274
Narayanan Radhakrishna Menon v. Narayanan Sukumara Menon, 2018-1 KHC 412; 2018-2 KLT 553)
Sunitha Venkatram v. Divya Rayapati, 2015 2 MLJ(Cri) 385 (S. Manikumar, J.)
Valsamma v. Binu Jose, 2014 ACJ 977; 2014 1 KHC 207; 2014 1 KLJ 388; 2014 1 KLT 10 (S. Siri Jagan & K. Ramakrishnan, JJ.)

Principles in Raman Gopi (Later SUPREME COURT Decision will Prevail) Applied

Raman Gopi v. Kunju Raman Uthaman [2011 (4) KLT 458 (FB)] is followed in M/s. Norman Printing Bureau v. P.M. Mammu Haji, 2013 4 ILR(Ker) 84; 2013 3 KHC 798; 2013-4 KLT 606 (K.M. Joseph & A. Hariprasad, JJ.) observing as under:

“10. Question as to which of the decisions pronounced by Benches of the Supreme Court of co-equal strength is the binding precedent was considered by this Court on many occasions. In Joseph v. Special Tahsildar (2001 (1) KLT 958) Full Bench of this Court considered the above question in extenso. Law laid down therein is the following:
- “We may now refer to a few High Court decisions on the question where an apparent conflict between an earlier and a later decision of the Apex Court by Benches consisting of equal number of Judges is pointed out. In our view, in such a situation the later decision must prevail over the earlier decision.”
11. Later, a Full Bench of this Court in Raman Gopi v. Kunju Raman Uthaman, 2011 (4) KLT 458, answered a reference order relating to the binding nature of decisions, where conflicting views are expressed in the decisions of two Benches of co-equal strength of the Supreme Court. …”

In the following decisions the applicability of the later Supreme Court decisions — which took a deviated stand from the earlier decision — came for consideration in the following cases, and applied the principles laid down in Raman Gopi v. Kunju Raman Uthaman [2011 (4) KLT 458 (FB)]:

M/s Asm Traxim Pvt Ltd v. Union of India, 2025-11 ADJ 500; 2025-5 AllLJ 100 (Sanjay Kumar Singh, J.)
Munni Lal v. Mohd. Rafik Kidwai, 2023-7 ADJ 74; 2023-AHC 124434; 2023-160 AllLR 658; 2023-2 ARC 432; 2023-4 AWC 3629 (J.J. Munir, J.)
XXXXXXXXXX v. State of Kerala, 2022-5 KLT 636 (Kauser Edappagath, J.),
Daisy M.P. v. State of Kerala, 2020-3 KHC 115; 2020-2 KLT 639 (Sunil Thomas, J.)
Wilson v. Vasantha Kumar, 2015 ACJ 1524; 2013 4 ILR(Ker) 893; 2013 3 KHC 764; 2013 4 KLT(SN) 121 (S. Siri Jagan & K. Ramakrishnan, JJ.)

Part II

Is the Full Bench Decision, Raman Gopi v. Kunju Raman, “Obiter” or “Per Incuriam”?

Does it apply to ‘Co-equal Benches’?

Kumari Alias Mary Francis v. Baby, 2022-6 KHC 270; 2022-5 KLT 614 (P. Somarajam, J.) distinguished Raman Gopi v. Kunju Raman Uthaman. It was pointed out that Raman Gopi v. Kunju Raman Uthaman was rendered in a matter where the lesser Bench failed to consider the decision of a prior Larger Bench; and the observations therein as regards the effect of not considering earlier decision of a co-equal Bench were only obiter. It is observed as under:

6. …. In fact, the abovesaid contrary view was taken by the Full Bench of this Court after referring the legal position laid down by the Constitution Bench in Central Board of Dawoodi Bohra Community’s case (Central Board of Dawoodi Bohra Community v. State of Maharashtra, AIR 2005 SC 752). But the reference was only for the purpose of binding precedents of the larger Benches over the Benches of lesser strength. It was not referred in relation to “ratio decidendi” settled with respect to conflicting decision rendered by co-equal Benches. A mere citing of a decision or a legal position settled in an earlier judgment, not for the purpose either to follow or dissent, cannot be said to have referred so as to exclude the same from the mischief of “per incuriam”. ….
8. Further, in view of the legal position settled by the Constitution Bench of the Apex Court in Central Board of Dawoodi Bohra Community’s case (supra) and Dr. Shah Faesal’s case (Dr. Shah Faesal v. Union of India [(2020) 4 SCC 1]), the earlier decision rendered by a Full Bench of this Court in Joseph v. Special Tahsildar (2001 (1) KLT 958 (FB)) holding that when two decisions of co-equal Benches of the Apex Court are conflicting, the decision later in time to be binding, cannot be held good law. The decision rendered by the Apex Court in Bharpur Singh’s case (supra) without noticing the earlier legal position settled by a larger Bench (three Judge Bench) of the Apex Court in Kalindindi Venkata Subbaraju’s case (Kalidindi Venkata Subbaraju v. Chintalapati Subbaraju, AIR 1968 SC 947)), hence cannot be held to have binding precedent.”

Is the View ‘Latest Judgment should Prevail’ – Fallacious?

It is held in Bindu v. State of Kerala, 2014-4 KHC 772; 2015-1 KLT(SN) 5 (DamaSeshadri Naidu, J.) that the school of thought — in case of conflict between co-equal benches, the latest judgment should prevail — is fallacious. Still, if the latter bench refers to the earlier one and distinguishes it, to that extent of distinction, the latter one binds. The court referred the following decisions:

Andhra Pradesh S.K. Mahaboob Ali, Ex-CRPF Constable, Nandyal v. Director General of Police, Central Reserve Police Force, New Delhi and others, 2005 (1) ALT 412 (DB)
Jabalpur Bus Operators Association and others v. State of Madhya Pradesh and another, AIR 2003 MP 81

How the HIGH COURT should deal with Divergent HIGH COURT Precedents Rendered by Co-Equal Benches

A close reading of the Full Bench decision in Raman Gopi v. Kunju Raman Uthaman reveals the following:

The Full Bench did not examine the status of the divergent decisions of co-equal benches of the HIGH COURT.

If a subsequent co-ordinate bench of High Court happened to render a decision without noticing an earlier decision of a co-equal Bench, the third Bench of the same strength has to –

either, refer the matter to a larger bench; or,
in a proper case, follow previous binding precedents (given by the earlier Co-equal Bench).

Co-equal Benches of the HIGH COURT must Refer the Matter to a Larger Bench

Following decisions support this view:

P. Suseela v. University Grants Commission, AIR 2015 SC1976; 2015-8 SCC 129 (T.S. Thakur, R.F. Nariman, JJ)
State Through Central Bureau of Investigation v. Hemendhra Reddy, 2023-16 SCC 779
U.P. Power Corporation Ltd. v. Rajesh Kumar, AIR 2012 SC 2728; 2012-7 SCC 1
Hardeep Singh v. State of Punjab, 2009 AIR(SC) 483; 2009-16 SCC 785.
Official Liquidator v. Dayanand, (2008) 10 SCC 1;
Sundarjas Kanyalal Bhathija v. The Collector, Thane, AIR 1991 SC 1893
Lala Shri Bhagwan v. Ram Chand, AIR 1965 SC 1767,

How a TRIAL COURTS should deal with Divergent HIGH COURT Precedents Rendered by Co-Equal Benches

The Trial Courts (Munsiff Courts, Sub Courts, Magistrate Courts, District Courts etc.) are bound to follow previous “binding precedent”. If there is divergence among precedents rendered by co-equal Benches, a question may come – How to determine this previous “binding precedent”?

Three recognized lines of approach are left open (for trial courts), for handling such High Court precedents:

(a) follow the decision that appears to have laid down the law more accurately and comprehensively.
(b) follow the earlier decision as binding treating the subsequent decision as “per incuriam”.
(c) follow the latest decision.

First View: High Court to Apply Decision APPEARS to Lay Down the Law Accurately

The Full Bench of the P & H High Court, in M/s Indo Swiss Time Limited v. Umrao, AIR 1981 P & H 213, held that the decision that appears to lay down the law more accurately and elaborately must be applied when there is a conflict between the two decisions of equal benches which cannot possibly reconcile. [Followed in: Ganga Saran v. Civil Judge, Hapur, Ghaziabad, AIR 1991 All. 114 (B. P. Jeevan Reddy, CJ., V. N. Khare, V. N. Mehrotra, JJ.)]

Second View: High Court to Apply Earlier Decision, Treating Second Decision Per Incuriam

A Constitutional Bench of the Supreme Court, in Central Board of Dawoodi Bohra Community v. State of Maharashtra, AIR 2005 SC 752; 2005-2 SCC 673, summed up the legal position, inter alia, in the following terms:

The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.”

Another Five Judge Bench in National Insurance Company Limited v. Pranay Sethi, AIR 2017 SC 4973; 2017 16 SCC 680, held that a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.

Central Board of Dawoodi Bohra Community v. State of Maharashtra is followed in a large number of decisions of our Apex Court including the following:

Property Owners Association v. State of Maharashtra, 2024-18 SCC 1; 2024-11 SCR 1 (Nine Judge Bench)
Aligarh Muslim University v. Naresh Agarwal, 2025 6 SCC 1 (Seven Judge Bench)
Sita Soren v. Union of India, AIR 2024 SC 1701; 2024-5 SCC 629 (Seven Judge Bench)

Third View: Follow the Latest Decision

It is not at all legitimate to support this view, for the following well accepted legal principles –

1. There can be no scintilla of doubt that an earlier decision of co-equal Bench binds the Bench of same strength (National Insurance Company Ltd. v. Pranay Sethi (Constitution Bench) 2017-16 SCC 680).
2. Our Jurisprudence treats decisions in ignorance of earlier verdicts as ‘Per Incuriam’. It is held in Bilkis Yakub Rasool v. Union of India, AIR 2024 SC 289; 2024-5 SCC 481 –
- “If a judgment is rendered in ignorantium of a statute or a binding authority, it becomes a decision per incurium. Thus, a decision rendered by ignorance of a previous binding decision of its own or of a court of coordinate or higher jurisdiction or in ignorance of the terms of a statute or of a rule having the force of law is per incurium.
- Such a per incurium decision would not have a precedential value.
- If a decision has been rendered per in curium, it cannot be said that it lays down good law, even if it has not been expressly overruled: vide Mukesh K. Tripathi v. Senior Divisional Manager, LIC, (2004) 8 SCC 387 (para 23).
- Thus, a decision per incurium is not binding.”
3. To maintain judicial consistency, per incuriam decisions cannot be be given precedence. Such supremacy will be “fallacious” and lead to “judicial chaos“.

Conclusion

When applying the doctrine of precedent to conflicting decisions of co-equal Benches, Indian courts differentiate between Supreme Court and High Court precedents:

Supreme Court Conflicts: In the light of the constitutional mandate under Article 141, various High Courts have accepted that when a direct conflict arises between Supreme Court Benches of equal strength, the decision later in point of time must be followed.
High Court Conflicts: High Courts remain divided regarding conflicting decisions among their own coordinate Benches. Two distinct approaches are seen employed: (a) follow the earlier decision as binding – treating the subsequent decision as per incuriam; (b) adopt the decision that lays down the law more accurately and comprehensively.

A uniform, nationally settled consensus on this issue is yet to be established.

End Notes – 1

Judicial Discipline Requires Co-Ordinate or Co-Equal Benches to Follow Earlier Rulings: Also see:

Sankar Padam Thapa v. Vijaykumar Dineshchandra Agarwal, AIR 2025 SC 4980
State of State of M.P. v. Narmada Bachao Andolan, (2011) 7 SCC 639,
Jai Singh v. Municipal Corporation of Delhi, (2010) 9 SCC 385)
Subhash Chandra v. Delhi Subordinate Services Selection Board, (2009) 15 SCC 458.
Central Board of Dawoodi Bohra Community v. State of Maharashtra , (2005) 2 SCC 673),
Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. (2001) 6 SCC 356,
Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, (1990) 3 SCC 682.

Other decisions – Co-Ordinate or Co-Equal Benches to Follow Earlier Rulings:

Shajitha v. Akbar, 2023-6 KHC 297; 2023-5 KLT 503 (P. Somarajan, J.)
Yudathadevus v. Joseph, 2021-5 KHC 668; 2021-6 KLT(SN) 42 (A. Badharudeen, J.)
M/s. Norman Printing Bureau v. P.M. Mammu Haji, 2013 4 ILR(Ker) 84; 2013 3 KHC 798; 2013-4 KLT 606 (K.M. Joseph & A. Hariprasad, JJ.)
Abdu Rahiman v. The District Collector, 2009-4 KHC 283; 2009-4 KLT 485 (K. Balakrishnan Nair & P. Bhavadasan, JJ.)
P. A. Thomas v. Authority Under the Minimum Wages Act 2008 1 KHC 800; 2008 1 KLT 858 (S. Siri Jagan, J.).

SALMOND: Lower Court Can Pick And Choose: Salmond on Jurisprudence a lower court can pick and choose between two conflicting decisions of the same court on the same question of law. P. A. Thomas v. Authority Under the Minimum Wages Act 2008 1 KHC 800; 2008 1 KLT 858 (S. Siri Jagan, J.). Read as under:

“10. Salmond on Jurisprudence deals with the question of choosing between conflicting decisions of the same court by a subordinate court as follows:

“(4) Inconsistency with earlier decision of higher court. it is clear law that a precedent loses its binding force if the court that decided it overlooked an inconsistent decision of a higher court. If, for example, the Court of Appeal decides a case in ignorance of a decision of the House of Lords which went the other way, the decision of the Court of Appeal is per incuriam, and is not binding either on itself or on lower courts; on the contrary, it is the decision of the House of Lords that is binding. The same rule applies to precedents in other courts, such as the Divisional Court.
(5) Inconsistency between earlier decisions of the same rank. A court is not bound by its own previous decisions that are in conflict with one another. This rule has been laid down in the Court of Appeal, Court of Criminal Appeal and Divisional Court and it obviously applies also to the House of Lords. There may at first sight seem to be a difficulty here: how can a situation of conflict occur, if the court is bound by its own decisions? At least two answers may be given. First, the conflicting decisions may come from a time before the binding force of precedent was recognized. Secondly, and more commonly, the conflict may have arisen through inadvertence, because the earlier case was not cited in the later. Owing to the vast number of precedents, and the heterogeneous ways in which they are reported-or are not reported-it is only too easy for counsel to miss a relevant authority. Whenever a relevant prior decision is not cited before the court, or mentioned in the judgments, it must be assumed that the court acts in ignorance or forgetfulness of it. If the new decision is in conflict wit the old, it is given per incuriam and is not binding on a later court.
Although the later court is not bound by the decision so given per incuriam, this does not mean that it is bound by the first case. Perhaps in strict logic the first case should be binding, since it should never have been departed from, and was only departed from per incuriam. However, this is not the rule. The rule is that where there are previous inconsistent decisions of it own, the court is free to follow either. It can follow the earlier, but equally, if it thinks fit, it can follow the later. This rule has been laid down for the Court of Appeal, and it is submitted that it applies also to other courts. It will be seen, therefore, that this exception to the binding force of precedent belongs both to the category of abrogation by subsequent facts and to the category of what is here called inherent vice. The earlier case can be disregarded because of the subsequent inconsistent decision on the same level of authority, and the later case can be disregarded because of its inherent vice of ignoring the earlier case.
Where authorities of equal standing are irreconcilably in conflict, a lower court has the same freedom to pick and choose between them as the schizophrenic court itself. The lower court may refuse to follow the later decision on the ground that it was arrived at per incuriam, or it may follow such decision on the ground that it is the latest authority. Which of these two courses the court adopts depends, or should depend, upon its own view of what the law ought to be. However, it takes a somewhat bold judge to disregard a precedent handed down by a court of higher standing on the ground that the decision was per incuriam.”

End Notes – 2

History of Raman Gopi v. Kunju Raman Uthaman

In Kumari Alias Mary Francis v. Baby, 2022-6 KHC 270; 2022-5 KLT 614 (P. Somarajam, J.) while referring Raman Gopi v. Kunju Raman Uthaman, laid down the history of this Full Bench decision (Raman Gopi v. Kunju Raman Uthaman) as under:

“2. Ext. B1 is a registered Will dated 2/11/1971 jointly executed by Paul and Sara. The suit was filed after the lapse of more than 30 years. ……The learned counsel for the appellant/plaintiff relied on the decision in Bharpur Singh & Ors. v. Shamsher Singh, 2009 (3) SCC 687, in support of his argument that there cannot be any application of Section 90 of the Evidence Act pertaining to a Will or testament irrespective of whether it is registered or not. But it is against the rationale (ratio) applied by the Apex Court in several decisions including the decision rendered by a Constitution Bench. Hence, it is necessary to ascertain the principle of binding precedent especially when contrary views were taken by a Full Bench and a Division Bench of this Court.
3. The issue came up before the Privy Council as early as in the year 1947 in Munnalal v. Mt. Kashibai, AIR 1947 PC 15, wherein it was held that the execution and attestation of a Will of more than 30 years old, when produced from proper custody, can be presumed. Later on, a three Judge Bench of the Apex Court had affirmed the legal position in Kalidindi Venkata Subbaraju & Ors. v. Chintalapati Subbaraju & Ors., AIR 1968 SC 947. It was followed by this Court in Narayanan Radhakrishna Menon v. Narayanan Sukumara Menon, 2018 (2) KLT 553. Subsequently, it was settled by a Constitution Bench of the Apex Court in Central Board of Dawoodi Bohra Community and Another v. and State of Maharashtra and Another, AIR 2005 SC 752, that a decision delivered by a larger Bench is binding on any subsequent Bench of lesser or co-equal strength. It is further laid down that a Bench of lesser strength cannot doubt the correctness of the view of the law taken by a Bench of larger strength and summed up as follows:-
- “The law laid down by Supreme Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength. A Bench of lessor quorum cannot doubt the correctness of the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of co-equal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of co-equal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.”
4. It has been further reiterated by a three Judge Bench of the Apex Court in New India Assurance Company Ltd. v. Hilli Multipurpose Cold Storage Pvt. Ltd., AIR 2016 SC 86, by holding that the judgment delivered earlier in point of time shall prevail over the judgment rendered by a co-equal Bench on a later point of time.
5. The abovesaid principle is subject to the exception that when in a subsequent pronouncement, after taking into consideration the previous judgment, re-defines or explains the width of principles laid down in the previous judgment, the subsequent pronouncement has to be followed (M. Natarajan v. State (2008) 8 SCC 413). It must be understood that there is no scope to re-write or reconsider the legal position earlier laid down by a larger Bench or a co-equal Bench, except for the purpose of explaining the width and length of the principle laid down in the previous judgment. Very recently, another Constitution Bench of the Apex Court in Dr. Shah Faesal and Ors. v. Union of India and Another [(2020) 4 SCC 1] had reiterated the legal position by explaining the rule of per incuriam, relevancy and binding precedent of ratio decidendi laid down in an earlier judgment of co-equal Bench or a larger Bench. There will not be any binding precedent regarding obiter dicta. The Constitution Bench of the Apex Court had considered in this context, the doctrine of binding precedent with its utmost importance in the administration of judicial system by referring yet another five Judge Bench of the Apex Court in Chandra Prakash v. State of U.P., (2002) 4 SCC 234, and also the law laid down in National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680: (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205. The view that the subsequent decision shall be declared per incuriam only if there exists a conflict in the ratio decidendi of the earlier judgments has got approval by a five-Judge Bench of the Apex Court in Punjab Land Development & Reclamation Corpn. Ltd. v. Labour Court, (1990) 3 SCC 682.”

Kumari Alias Mary Francis, v. Baby, 2022-6 KHC 270; 2022-5 KLT 614 (P. Somarajam, J.) distinguished (?) Raman Gopi v. Kunju Raman Uthaman [2011 (4) KLT 458 (FB)] observing as under:

“6. But, without noticing the law laid down by the Constitution Bench of the Apex Court in Central Board of Dawoodi Bohra Community’s case ( Central Board of Dawoodi Bohra Community v. State of Maharashtra, AIR 2005 SC 752)), a Division Bench of this Court in Sampath S. Pawar v. Ibrahim, 2013 (3) KLT 722, had laid down the law that when conflicting views are taken by Benches of co-equal strength, the decision later in point of time will prevail over the earlier one by referring to a Full Bench decision of this Court in Raman Gopi v. Kunju Raman Uthaman, 2011 (4) KLT 458 (FB).”
In fact, the abovesaid contrary view was taken by the Full Bench of this Court after referring the legal position laid down by the Constitution Bench in Central Board of Dawoodi Bohra Community’s case (supra). But the reference was only for the purpose of binding precedents of the larger Benches over the Benches of lesser strength. It was not referred in relation to “ratio decidendi” settled with respect to conflicting decision rendered by co-equal Benches. A mere citing of a decision or a legal position settled in an earlier judgment, not for the purpose either to follow or dissent, cannot be said to have referred so as to exclude the same from the mischief of “per incuriam decis”. In order to avoid the mischief, the “ratio decidendi” settled on a particular legal issue by the earlier larger or co-equal Bench must be referred in relation to that particular “ratio decidendi”. Hence, the legal position laid down by the Full Bench without referring to the law laid down in Central Board of Dawoodi Bohra Community’s case (supra) in relation to conflicting decision and the binding precedents of co-equal Benches would stand “per incuriam decis”. The decision rendered by the Division Bench in Sampath’s case (supra) by following the Full Bench decision in Raman Gopi’s case (supra) without noticing the decision of the Constitution Bench in Central Board of Dawoodi Bohra Community’s case (supra) also would stand per incuriam decis. So also, the decision rendered by a Single Bench of this Court in Hameed v. State of Kerala, 2008 (1) KLT 534, by taking a contrary view, though referred the decision of the Constitution Bench of the Apex Court in Central Board of Dawoodi Bohra Community’s case (supra) cannot be held good law.
7. The observation made by the Apex Court in Official Liquidator v. Dayanand and Others [(2008) 10 SCC 1] assumes importance at this juncture. The relevant portion is extracted below for reference:
- “There have been several instances of different Benches of the High Court not following the judgments/ orders of coordinate and even larger Benches. In some cases, the High Courts have gone to the extent of ignoring the law laid down by this Court without any tangible reason. Likewise, there have been instances in which smaller Benches of this Court have either ignored or bypassed the ratio of the judgments of the larger Benches including the Constitution Benches. These cases are illustrative of non-adherence to the rule of judicial discipline which is sine qua non for sustaining the system.”
8. Further, in view of the legal position settled by the Constitution Bench of the Apex Court in Central Board of Dawoodi Bohra Community’s case (supra) and Dr. Shah Faesal’s case (Dr. Shah Faesal v. Union of India [(2020) 4 SCC 1]), the earlier decision rendered by a Full Bench of this Court in Joseph v. Special Tahsildar (2001 (1) KLT 958 (FB)) holding that when two decisions of co-equal Benches of the Apex Court are conflicting, the decision later in time to be binding, cannot be held good law. The decision rendered by the Apex Court in Bharpur Singh’s case (supra) without noticing the earlier legal position settled by a larger Bench (three Judge Bench) of the Apex Court in Kalindindi Venkata Subbaraju’s case (Kalidindi Venkata Subbaraju v. Chintalapati Subbaraju, AIR 1968 SC 947)), hence cannot be held to have binding precedent.”

End Notes – 3

M/s. Norman Printing Bureau v. P.M. Mammu Haji, 2013 4 ILR(Ker) 84; 2013 3 KHC 798; 2013-4 KLT 606 (K.M. Joseph & A. Hariprasad, JJ.), following Raman Gopi v. Kunju Raman Uthaman [2011 (4) KLT 458 (FB)], it is observed as under:

“10. Question as to which of the decisions pronounced by Benches of the Supreme Court of co-equal strength is the binding precedent was considered by this Court on many occasions. In Joseph v. Special Tahsildar (2001 (1) KLT 958) Full Bench of this Court considered the above question in extenso. Law laid down therein is the following:
- “We may now refer to a few High Court decisions on the question where an apparent conflict between an earlier and a later decision of the Apex Court by Benches consisting of equal number of Judges is pointed out. In our view, in such a situation the later decision must prevail over the earlier decision.”
11. Later, a Full Bench of this Court in Raman Gopi v. Kunju Raman Uthaman (2011 (4) KLT 458) answered a reference order relating to the binding nature of decisions, where conflicting views are expressed in the decisions of two Benches of co-equal strength of the Supreme Court. After an elaborate precedential survey, following propositions have been laid down:
“The legal position, which therefore emerges on a discussion and analysis of the principles stated in various decisions of the Apex Court and other High Courts including this Court, so as to act as guidance to the High Courts and Subordinate Courts, when faced with a conflicting decisions, are summarised below:-
- (i) In case of conflicting views taken in the decisions of two Benches of equal strength of the Apex Court, the decision later in point of time, will prevail over the earlier one;
- (ii) What is binding is the ratio decidendi. A decision is only an authority for what it actually decides.
- (iii) A decision which is not expressed and is not found on reasons nor proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Art.141 of the Constitution. Similarly, any declaration made or conclusion arrived at without application of mind or preceded without a reason, cannot be a declaration of law, or authority as a binding precedent.
- (iv) It is well settled that what is the essence of a decision is the ratio and not every observation, nor what logically follows from various observations made in it.
- (v) The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Art.141 of the Constitution.
- (vi) A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind (Salmond on Jurisprudence 12th Edn. p.153).
- (vii) A Division Bench, in case of conflict between the decision of a Division Bench of two Judges and the decision of a larger Bench and in particular, a Constitution Bench, would be bound by the latter decision.
- (viii) Per incuriam means a decision rendered by ignorance of a previous binding decision such as a decision of its own or of a court of coordinate or higher jurisdiction or in ignorance of the terms of a statute or of a rule having the force of law. A ruling making specific reference to an earlier binding precedent may. Or may not be correct, but cannot be said to be per incuriam”.
Hence, it is now indubitable that the decision rendered by the Apex Court later in point of time will prevail over the earlier one.”

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Survey, Revenue Records, Mutation

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Specific Relief Act

Law on Damages

Easement

Stamp Act & Registration

Natural Justice/Disciplinary Action

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Principles of Rejection of Plaint under Order VII Rule 11 CPC

Saji Koduvath, Advocate, Kottayam.

Part I

Principles of Rejection of Plaint under Order VII Rule 11 CPC

The principles of rejection of plaint under Order VII Rule 11 CPC is authoritatively laid down in Dahiben v. Arvindbhai Kalyanji Bhanusali, (2020) 7 SCC 366.

It can be summarised as under:

1. Rejection of plaint must be on any of the grounds contained in Order VII Rule 11. They include:
- no cause of action is disclosed,
- the suit is barred by limitation under Rule 11 (d).
2. Conditions in Order VII Rule 11 are to be strictly adhered to.
3. To find disclosure of a cause of action, averments in the plaint itself scrutinized.
4. Plaint must be read in conjunction with the documents filed along with the plaint
5. A case for rejecting the plaint at the threshold be made out.
6. The pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant.
7. It is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into.
8. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact.
9. If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would exercise the power under Order VII Rule 11 CPC.
10. The power under Order VII Rule 11 CPC may be exercised by the Court at any stage of the suit.
11. The provision of Order VII Rule 11 is mandatory in nature. It states that the plaint “shall” be rejected.
12. If clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing.
13. Every suit instituted after the prescribed period, shall be dismissed even though limitation may not have been set up as a defence.
14. If a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues.

Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra), (2020) 7 SCC 366, is followed in:

The Correspondence, RBANMS Educational Institution v. B. Gunashekar, AIR 2025 SC 2065; 20255 SCR 94
Geetha v. Nanjundaswamy, AIR 2023 SC 5516; 2024 14 SCC 390,
Frost International Limited v. M/s Milan Developers and Builders (P) Limited, 2022-8 SCC 633.

Part II

Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra), (2020) 7 SCC 366

It is held in this decision as under:

“23.2. The remedy under Order VII Rule 11 is an independent and special remedy, wherein the Court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision.
23.3. The underlying object of Order VII Rule 11 (a) is that if in a suit,
- no cause of action is disclosed, or
- the suit is barred by limitation under Rule 11 (d),

the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted.
23.4. In Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC 315 _{(Followed in Manvendrasinhji Ranjitsinhji Jadeja v. Vijaykunverba, 1998 SCC OnLine Guj 281 : (1998) 2 GLH 823)}this Court held that the whole purpose of conferment of powers under this provision is to ensure that a litigation which is meaningless, and bound to prove abortive, should not be permitted to waste judicial time of the court, in the following words : (SCC p.324, para 12)
23.5. The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order VII Rule 11 are required to be strictly adhered to.
23.6. Under Order VII Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint _{(Liverpool & London S.P. & I Assn. Ltd. V. M.V. Sea Success I, (2004) 9 SCC 512)}, read in conjunction with the documents relied upon, or whether the suit is barred by any law.

23.7. Order VII Rule 14(1) provides for production of documents, on which the plaintiff places reliance in his suit, which reads as under:
- “14. Production of document on which plaintiff sues or relies.-
- Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.
- Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.
- A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
- Nothing in this rule shall apply to document produced for the cross examination of the plaintiff’s witnesses, or, handed over to a witness merely to refresh his memory.”(emphasis supplied)
23.8. Having regard to Order VII Rule 14 CPC, the documents filed along with the plaint, are required to be taken into consideration for deciding the application under Order VII Rule 11 (a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint.
23.9. In exercise of power under this provision, the Court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out.
23.10. At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration (Sopan Sukhdeo Sable v. Charity Commr., (2004) 3 SCC 137).
23.11. The test for exercising the power under Order VII Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed. This test was laid down in Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I which reads as : (SCC p.562, para 139)
- “139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed.”
23.12. In Hardesh Ores (P.) Ltd. v. Hede & Co., (2007) 5 SCC 614, the Court further held that it is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact. D. Ramachandran v. R.V. Janakiraman, (1999) 3 SCC 267).
23.13. If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order VII Rule 11 CPC.
23.14. The power under Order VII Rule 11 CPC may be exercised by the Court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial, as held by this Court in the judgment of Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557. The plea that once issues are framed, the matter must necessarily go to trial was repelled by this Court in Azhar Hussain (supra).
23.15. The provision of Order VII Rule 11 is mandatory in nature. It states that the plaint “shall” be rejected if any of the grounds specified in clause (a) to (e) are made out. If the Court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the Court has no option, but to reject the plaint.
24. “Cause of action” means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit.
24.1. In Swamy Atmanand v. Sri Ramakrishna Tapovanam, (2005) 10 SCC 51, this Court held:
- “24. A cause of action, thus, means every fact, which if traversed, it would be necessary for the plaintiff to prove an order to support his right to a judgment of the court. In other words, it is a bundle of facts, which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded”(emphasis supplied)
24.2. In T. Arivanandam v. T.V. Satyapal, (1977) 4 SCC 467, this Court held that while considering an application under Order VII Rule 11 CPC what is required to be decided is whether the plaint discloses a real cause of action, or something purely illusory, in the following words: (SCC p. 470, para 5)
- “5. The learned Munsif must remember that if on a meaningful – not formal – reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII, Rule 11 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing.”(emphasis supplied)
24.3. Subsequently, in I.T.C. Ltd. v. Debt Recovery Appellate Tribunal, (1998) 2 SCC 170, this Court held that law cannot permit clever drafting which creates illusions of a cause of action. What is required is that a clear right must be made out in the plaint.
24.4. If, however, by clever drafting of the plaint, it has created the illusion of a cause of action, this Court in Madanuri Sri Ramachandra Murthy v. Syed Jalal, (2017) 13 SCC 174, held that it should be nipped in the bud, so that bogus litigation will end at the earliest stage. The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court.
25. The Limitation Act, 1963 prescribes a time-limit for the institution of all suits, appeals, and applications. Section 2(j) defines the expression “period of limitation” to mean the period of limitation prescribed in the Schedule for suits, appeals or applications. Section 3 lays down that every suit instituted after the prescribed period, shall be dismissed even though limitation may not have been set up as a defence. If a suit is not covered by any specific article, then it would fall within the residuary article.

Description of suit	Period of limitation	Time from which period begins to run
58. To obtain any other declaration	Three years	When the right to sue first accrues
59. To cancel or set aside an instrument or decree or for the rescission of a contract	Three years	When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him.

The period of limitation prescribed under Articles 58 and 59 of the 1963 Act is three years, which commences from the date when the right to sue first accrues.
27. In Khatri Hotels Pvt. Ltd. v. Union of India, (2011) 9 SCC 126, this Court held that the use of the word ‘first’ between the words ‘sue’ and ‘accrued’, would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. That is, if there are successive violations of the right, it would not give rise to a fresh cause of action, and the suit will be liable to be dismissed, if it is beyond the period of limitation counted from the date when the right to sue first accrued.
28. A three-Judge Bench of this Court in State of Punjab v. Gurdev Singh, (1991) 4 SCC 1 : 1991 SCC (L&S) 1082, held that the Court must examine the plaint and determine when the right to sue first accrued to the plaintiff, and whether on the assumed facts, the plaint is within time. The words “right to sue” means the right to seek relief by means of legal proceedings. The right to sue accrues only when the cause of action arises. The suit must be instituted when the right asserted in the suit is infringed, or when there is a clear and unequivocal threat to infringe such right by the defendant against whom the suit is instituted. Order VII Rule 11(d) provides that where a suit appears from the averments in the plaint to be barred by any law, the plaint shall be rejected.”

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Survey, Revenue Records, Mutation

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Specific Relief Act

Law on Damages

Easement

Stamp Act & Registration

Natural Justice/Disciplinary Action

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Adjournment of Meetings and Polling of Associations

Saji Koduvath, Advocate, Kottayam.

Part I

Adjournment of Meeting: The right is vested in the Assembly itself

In Deodutt Sharma v. Zahoor Ahmed Zaid (AIR 1960 Raj 25) it is held:

“From the aforesaid view of cases the following principles clearly emerge:-
1 That once a meeting had been properly called and it meets the chairman of the meeting can only adjourn it with the consent of the majority of the members subject of course to the rules and regulations of the particular body in relation to which such a question might arise. Thus where a meeting according to a statute or the rules under which it has been called must have a certain quorum and such quorum is not present the chairman will have the authority to adjourn the meeting because in its absence no lawful meeting can be held.
2 In the absence of any rule to the contrary the common law doctrine should be held to prevail that the adjournment of the meeting rests with the majority of the members present and is not a matter merely of the pleasure of the chairman.
3 An exception to the aforesaid rule which has been almost universally accepted is that where disorder breaks out at a meeting the chairman has an inherent right (See also: John Vs. Rees: 1969 (2) All ER 274) even if it has not been granted by statute or the rules to adjourn the meeting without consulting the majority.
4 These exceptions apart if the chairman adjourns a meeting contrary to the wishes of the members present and thereby interrupts or leaves unfinished the business for which the meeting was summoned the remaining members can lawfully continue the business; and in the absence of their proper chairman it is open to them to elect another chairman to act as his substitute and continue the business and any business which was duly notified in the notice for the meeting could be transacted to completion and if it is so transacted it would be valid.
5 Where however the adjournment has been properly ordered by the chairman or it having been ordered the members have acquiesced in it and thereafter it dawns on or strikes some of them to continue the business of the meeting then such continuance should be held to be invalid as being a surprise or a fraud on the members who may have already left the meeting.”

Deodutt Sharma v. Zahoor Ahmed Zaid is referred to in the following decisions:

Karan Singh Bhadoria v. Government of Madhya Pradesh, AIR 1996 MP 175,
M.I. Royappan v. Government of Tamil Nadu, AIR 1972 Mad 435,
Seth SobhagmalLodha v. The Edward Mills Ltd., Beawar, AIR 1971 Raj 926
KantilalJ.Sanghavi v. Vinay Sharma, 1971 GujLR 741

In Kantilal J. Sanghavi v. Vinay Sharma, (P.N. Bhagwati, T.U. Mehta, JJ.) 1971 GujLR 741, referring Gujarat Municipalities Act 1963, it is observed as under:

“Therefore, if such a general meeting is properly called in ordinary course that meeting should continue till its business is finished. Under ordinary circumstances it would be for that meeting itself to consider whether it should continue till the business on hand is finished or should for some valid reasons adjourn even before finishing the business on hand. …That being the position the authority presiding over that meeting cannot claim any right which would arbitrarily interfere with the rights of councilors attending the meeting.
14. This seems to be the position at common law in England. There the right to adjourn is considered inherent in the assembly itself.
Shackleton in his book on The Law and Practice of Meetings observes as under at page 48 of the Fourth Edition of that book:- –
- “There is a power at common law to adjourn a meeting. The right is vested in the assembly itself unless there are particular regulations which vest this power in the chairman.”
Crew another well known author of the Conduct of Meetings observes as page 151 of 20th Edition of his book as under:-
- “Where no provision is made by the articles as to the adjournment of a meeting the power of adjourning is apparently vested in the meeting. In Stoughton v. Reynolds (1736) 2 Strange 1044 a similar question arose on the following facts. A vestry meeting was held for the election of churchwardens at which the Vicar presided. He had as his nominee for the office of churchwarden one Chapman but the parishioners nominated two other individuals Messrs. Stoughton and Farren. Before the election was completed however the Vicar at the desire and with the consent of Chapman adjourned the meeting against the wish of many present to the next day. Stoughton and those in sympathy with him remained behind and completed the poll whereby he had a majority of votes. The next day the Vicar and Chapman and their supporters met and continued the poll. On these facts it was held that the right of adjournment was in the parish at large. In the case in question there was no custom found and as no precedent in the common law could be found resort therefore was made to the common right which was in the whole assembly where all were upon an equal footing. It is thus evident that so far as the common law position is concerned it is the inherent right of the assembly itself to adjourn its deliberations.”
15. No such inherent right is found to be in the presiding authority. On this question we find the following important observations at page 57 of the above referred book of Crew:-
- “If the chairman leaves the meeting before the business is completed or if he purports to adjourn the meeting without authority the meeting may if a quorum still remains appoint another chairman and proceed with the business for the chairman has no right to adjourn the meeting without the consent of the meeting itself unless the business for which it was conveyed has been done or an express power in that behalf is given to him by the relevant rules.”
Halsbury in Vol. No. 6 of Third Edition observes in para 663 at page 338 as under:-
- “Except where empowered by the regulations of the company the chairman cannot adjourn the meeting nor dissolve it while any of the business for which it was called remains un-transacted; and if he refuses to act the meeting may elect another chairman. If he has the right with the consent of the meeting to adjourn it the majority of the members present at the meeting cannot compel him to do so. He cannot however adjourn or dissolve the meeting against the wish of the majority.”
We find that a leading case on this point is National Dwellings Society v. Sykes (1894) 3 Ch. 159 where it is held that it is the duty of a chairman to preserve order conduct proceeding regularly and take care that the sense of the meeting is properly ascertained with regard to any question before it; but he has no power to stop or adjourn a meeting at his own will; and if he purports to do so it is competent for the meeting to resolve to go on with the business for which it has been conveyed and to appoint another chairman for that object. In Andhra Pradesh case of VedPrakashDusaj v. The Municipal Corporation of The City of Secunderabad reported in (1958) I. L. R. Andhra 17 Clause (a) of sec. 88 of Hyderabad Municipal Corporations Act (II of 1956) which was similar to sub-sec. (11) of sec. 51 of the Act was considered. The meeting there was adjourned by the concerned Mayor. With reference to this adjournment and after construing the provisions of above referred clause (m) of sec. 88 it was observed that if the Mayor or the Deputy Mayor or both of them as the case may be find it inconvenient to go on with the meeting they cannot adjourn the meeting at their will and pleasure without the consent of the majority and if they do so and leave the hall they would be deemed to be absent within the meaning of clause (g).
We find that similar view is taken in several Indian decisions namely the case of
- Gopal Narayan Kulkarni and others v. SanmukhappaNingappaAngali and others reported in A. I. R. 1927 Bom 603 and two Madras cases of
- NarayanaChettiar v. The Kaleeswarar Mills Ltd. reported in A. I. R. 1952 Mad 515 and the other
- B. Gnanaraj v. A. M. Vedanayagam reported in A. I. R. 1966 Mad 372.
As the same principle is discussed in all these cases we don’t find it necessary to refer to the facts of these cases and the observations made by the learned Judges in these decisions. It would be sufficient to state that in all these cases the principle which is accepted is that the right to adjourn a meeting which is properly convened inherently vests in the meeting itself and that the chairman presiding over that meeting has no unfettered right to adjourn the said meeting and to interrupt its work at his sweet will.”

If Chairman Disregards Majority View, Even Minority can Proceed

Seth SobhagmalLodha v. The Edward Mills Ltd., Beawar, AIR 1971 Raj 926, held as under:

“28. It is settled law that when once a meeting is called, no chairman can arbitrarily dispose of it. Its continuance or dispersion rests entirely on the will of the shareholders. It is mentioned in the Law and Practice of Meetings by Frank Shackleton, 3rd edition, page 69, that a chairman cannot adjourn a meeting at his own will and pleasure without the consent of the members unless the business for which it was convened has been concluded. That means that a chairman has no power to adjourn the meeting at his own choice. The power of adjournment vests in the majority of those present at the meeting. If a chairman should vacate the chair or adjourn the meeting regardless of the views of the majority, those remaining, even if a minority, can appoint a chairman and conduct the business left unfinished by the former chairman: see Catesby v. Burnett, [1916] 2 Ch. 325 (Ch. D.). This point was also considered by a Division Bench of this court in Deodutt Sharma v. Zahoor Ahmed Zaid, [1960] R.L.W. 486 ; A.I.R. 1960 Raj. 25, ….”
“29. Similar views were expressed in Stoughton v. Reynolds, [1736] 2 Stragge 1044 in Nation Dwelling Society v. Sykes, [1894] 3 Ch. 159 (Ch. D.) and in Catesby v. Burnett quoted supra. In the last case there was much opposition in the meeting. There was considerable uproar when the chairman declared the auditors elected and he declared the business to be closed and left the chair and the hall. The remaining members continued the business and elected Catesby to the chair and some new directors were also elected. The question arose, whether the proceedings after the chairman had vacated the chair and dissolved the meeting were valid. It was held that the proceedings were regular and that the appointment of the new directors was valid.”

Voting/Polling is a Continuous Process

Voting/polling is a continuous process for the prescribed polling period, unless it was made at the discretion of the Chairman/Returning Officer and with any emergency or other sufficient cause. It cannot simply be interrupted and adjourned. A mere general power to adjourn the meeting does not necessarily confer an unrestricted power to interrupt a partially completed poll.

After voting has commenced and some members have voted, the Returning Officer/Chairman cannot unilaterally adjourn the voting and resume it on another date. That may raise a serious question of continuity, fairness, and possible manipulation of the electoral process.

Section 57 of the Representation of the People Act, 1951, permits adjournment only in specified circumstances—such as riot/open violence, natural calamity, or “any other sufficient cause” making it impossible to conduct the poll. The Election Commission’s instructions emphasise that this power should be exercised sparingly, where it has become physically impossible to continue the poll. This principle applies to all elections in India.

Part II

Adjournment of Election/Polling in a Society/Association

Adjournment of an election of the governing body of a society, church, association, cooperative society, etc., are governed by:

the bye-laws;
the statute governing the body;
the rules governing the election;
the authority conducting the election and its decision; and
the reasons for adjourning the election.

Principles as to Adjournment of Voting/polling

Once polling has commenced, it is ordinarily expected to continue.

There is a strong distinction between:

adjournment of the general meeting before voting begins, and
interruption/adjournment of an election after voting has actually commenced.

The latter is much more serious. The person conducting the election cannot ordinarily treat the polling as freely interruptible merely because he has the general power to adjourn a meeting.

Courts have emphasised that elections are intended to be completed at the earliest and that an election officer has no inherent power to adjourn an election unless the governing statute, rules or bye-laws confer such power.
In R. VenkataRangareddy v. N. MuralidharRao, AIR 1983 AP 83, Andhra Pradesh High Court held to the following effect:

Election officer is not a court and has no inherent powers. Therefore, he has to exercise his powers in accordance with what is found in law governing the election.
Once the election process commences, it should be proceeded with unhampered. The Election officer cannot proceed to hold an enquiry and hold-up the elections pending such enquiry – except under exceptional circumstances or under orders of court in exceptional circumstances.
The election process once commenced, cannot be impeded except under the orders of the Court and the Court would be reluctant except in exceptional circumstances to come in the way of holding of election to the Co-Operative bodies.
The election process which has commenced should not be interfered with ordinarily by any Court. In Ram PyareChaudhary v. State of U.P., [1982]3 SCR207, with reference to the provisions of the U. P. Co-operative societies Act the Supreme Court held that “from the date of the poll until the results are finally declared, the entire process is an election process and ordinarily this process should not be interfered with by the courts”.
The officer concerning the election has to make a summary enquiry with respect to matters that come before him without giving him the power to adjourn and decide the objection.
The officer cannot stop the election process upon an allegation of disqualification, however much it may be supported by material cessation of membership operates and he is disabled from functioning as member of the managing committee.
Any other interpretation would throw open floodgates of allegations by the members of the society who have unsuccessfully contested the election.

Lawful Adjournment is Possible

Here, bye-law becomes crucial. Some bye-laws may expressly provide that the Chairman may adjourn a meeting and resume unfinished business later. But, there is a difference in a general power to adjourn the meeting and the power to interrupt an election after polling has commenced.

The election provisions, no doubt, constitute a special procedure governing the poll, and a general meeting-adjournment clause may not necessarily authorise the Returning Officer/Chairman to interrupt a partially completed poll.

If Poll Adjourned, Process Resumes From The Stage It Was Interrupted

The poll does not ordinarily begin afresh. The adjourned poll resumes from the stage at which it was interrupted. Those who have already voted cannot vote again; only those who had not voted before the adjournment may vote when polling recommences.

Where polling had been stayed and the general meeting adjourned, the poll should be resumed, the from the stage which the election stood when it was interrupted (MadhavanNamboodiri v. Kammaran,1992 (2) KLT 567; K.Ravindranvs State Of Kerala on 2022 1 ILR(Ker) 669 ; 2020 KLT(Online) 1210, C.T.Ravikumar, N.Nagaresh, JJ.), rather than starting a fresh election calendar (R. VenkataRangareddy v. N. MuralidharRao, 1982 SCC OnLine AP 123; S.R. Shanth Kumar v. State of Karnataka, W.P. Nos. 369/2025 & 306/2025, decided 24-1-2025).

Note: The position is materially different if polling has not commenced.

If no voting has yet taken place

If voting has not started, generally there will be no difficulty in postponing/adjourning the election to another date, provided the constitution/bye-laws or the authority conducting the election permits it, or there is a valid reason for postponement. The Kerala High Court, in K. Ravindranvs State Of Kerala, 2022 1 ILR(Ker) 669 ; 2020 KLT(Online) 1210 (C.T.Ravikumar, N.Nagaresh, JJ.), has recognised that, where an election cannot be conducted on the originally fixed date, the election can in an appropriate case be continued on a later date from the stage at which it was stopped, rather than requiring the entire process to be restarted.

What happens to the Votes Already Cast?

If polling is lawfully adjourned, the crucial issue becomes whether:

the ballot papers already cast remain securely preserved;
those votes are not cancelled or altered;
voters who have already voted are prevented from voting again; and
the remaining eligible voters are subsequently given an opportunity to vote under the same electoral process.

Can members who did not attend the first date vote on the adjourned date?

Ordinarily, yes—if the adjourned date is merely a continuation of the same election and those persons were otherwise eligible voters.

Note: The critical distinction is between: “members present on the original date” and “members entitled to vote in the election.”

Unless the bye-laws expressly restrict voting to members present at the original meeting, eligibility ordinarily depends upon the electoral roll/voters’ list applicable to that election, not upon physical attendance on the first date. K. Ravindran v. State of Kerala, 2022 1 ILR(Ker) 669 ; 2020 KLT(Online) 1210 (C.T.Ravikumar, N.Nagaresh, JJ.), following MadhavanNamboodiri v. Kammaran, 1992 (2) KLT 567, can be authoritatively cited in this point. The Kerala High Court held that when an election was adjourned, the persons entitled to vote had to be determined with reference to the original election date, and not the adjourned date. The Court also held that the election could continue from the stage where it had stopped.

In short:

The adjournment does not ordinarily create a new electorate.
In that situation, members who were absent on the first date should ordinarily be entitled to attend and vote on the adjourned polling date, provided they were members entitled to vote according to the electoral roll applicable to the original election.
Conversely, a person who became eligible only after the original election date would not ordinarily acquire a right to vote merely because he happens to be present on the adjourned date.
Everything ultimately depends upon the association’s constitution/bye-laws and the resolution by which the election was originally convened.

Conclusion

The crucial questions for taking a decision on the point under consideration are:

What are the exact provisions of the bye laws that governs the election?
Was the first meeting adjourned, or was the election cancelled and a fresh election ordered?
What does the election notice say?
Was the voters’ list already finalised/published?
Do the bye laws require the voters to be members satisfying particular conditions as on a particular date?
Was the adjournment made by the person/body having authority to adjourn the Parish General Body?

To sum up – (i) the election can potentially be adjourned before polling begins; and the members who were absent on the first date can ordinarily attend and vote on the adjourned polling date, provided they were eligible voters for that election; (ii) one should not ordinarily lose his voting right merely because he was absent on the first date unless there is an express prohibition in the bye laws.

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Survey, Revenue Records, Mutation

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Specific Relief Act

Law on Damages

Easement

Stamp Act & Registration

Natural Justice/Disciplinary Action

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Suit and Counterclaim – No Necessity of Two Decrees; No Need for Two Appeals: Basudev v. Sanjay Kumar

Saji Koduvath, Advocate, Kottayam.

Abstract

The Supreme Court of India, in Basudev v. Sanjay Kumar (11 August, 2026), 2026 INSC 831 (J. B. Pardiwala, Vinod Chandran, JJ.) considered following questions –

(i) whether in every situation where a suit and a counterclaim are disposed of by a single judgment, two decrees should be drawn up;
(ii) if two decrees were drawn up, should there be two appeals?

Findings in a Nutshell

No necessity of two decrees. A suit and a counterclaim can be disposed of in a common judgment.
If a common judgment, can be challenged in a composite appeal. Principles:
- When there is one suit and a counterclaim, there is only; one trial, one finding and one decision.
- Order XLI Rule 1 of the CPC postulated only filing of one copy of the judgment.
- Order XX Rule 19 of the CPC posits that the decree shall be subject to the same provisions in respect of an appeal, if there was no counter claim.
- The prayer in the suit and the counterclaim are so interlinked that the requirement was only to file one appeal.
- It is not in contravention of any of the provisions of the CPC.
The composite appeal should also be valued as two separate appeals, and the court fees should be paid accordingly.
Court fees have to be paid on the valuation in the suit and the counterclaim as applicable to appeals when a composite appeal is filed from a common judgment in the suit and the counterclaim, whether it be a single decree or two.
The composite appeal, however, should show the grounds raised against the decree in the suit and the decree in the counterclaim separately, whether there are two decrees or one drawn up.
The procedure is suggested above is with a view to ensure avoidance of procedural rigmarole as also multiplicity of litigations.

It is pointed out by the Apex Court – there is no necessity of two decrees. The reasocn cited is the following:

The provision for appeal requires only a judgment to accompany the Memorandum of Appeal. The proviso to Order XLI Rule 1 enables the certified copy of the judgment to be dispensed with, when two appeals from a common judgment in two suits tried together, are preferred, whether or not the appeals are filed by the same person or not.

If the grounds are raised against the decree in the suit and the decree in the counterclaim separately, it would enable the appeal to be considered on merits, avoiding the grounds of estoppel and res judicata.

Divergent Views

1. Single Appeal Insufficient

In the impugned judgment, the High Court of Himachal Pradesh took the view that the single appeal was incompetent. It relied on:

Ramesh Chand v. Om Raj, 2022 (2) SLC 1145.

Thw High Court relied on –

Narhari v. Shanker, 1950 SCC 668,
Charan Singh v. Ram Saroop, C.A. No.1585-1586 of 2025 dated 03.02.2025. (The court permitted the appellant to file a separate memorandum of appeal, without a certified copy of the judgment since, Order XLI Rule 1 of the CPC permitted the Appellate Court to dispense with the requirement of filing a copy of the impugned judgment twice when two separate appeals are filed.)
Premier Tyres Ltd. v. Kerala State Road Transport Corporation, 1993 Supp. (2) SCC 146.

Over and above, Ramesh Chand v. Om Raj, 2022 (2) SLC 1145 (supra), the respondents, relied on the following decisions:

Premier Tyres Ltd. v. Kerala State Road Transport Corporation, 1993 Supp. (2) SCC 146. (It is held: “Where no appeal is filed, as in this case from the decree in connected suit, it has the same effect of non-filing of appeal against the judgment or decree. Thus, the finality of finding recorded in the connected suit, due to non-filing appeal, precludes he court from proceeding with appeal in other suit.”)
Girija v. Rajan, 2015 (1) KerLT 695 (The High Court of Kerala found that a single appeal would fail on the ground of res-judicata because of the findings in the companion decree. Relied on: Premier Tyres Ltd. v. Kerala State Road Transport Corporation, 1993 Supp. (2) SCC 146)
State of Punjab v. Bakshish, (1998) 8 SCC 222 (It was pointed out that Order XLI Rule 33 — the Appellate Court shall have power to pass any decree even if no appeal is filed — is discretionary and the scope of appeal cannot be enlarged, and also that the principles of res judicata would be attracted where one appeal alone was filed.)
T.K.V.S. Vidyapoornachary Sons v. M.R. Krishnamahary, AIR 1983 Mad 291. (Counter claim is to be treated as a plaint, by a legal fiction employed by sub-rules (2) and (4) of Rule 6A CPC. According to Rule 19(1) of Order XX CPC, homogeneity clearly indicates that it is a unified proceeding. A suit-claim and a counterclaim constitute a unified proceeding.)
Ghanshyam Singh v. Narendra Singh, Second Appeal No.76 of 2022 decided on 22.07.2022 by High Court of Uttarakhand.
Gumai Singh v. Baburam Second Appeal No. 144 of 2012 decided on 28.07.2025 by Madhya Pradesh High Court at Gwalior, 2026 SCC OnLine Mad 14 – relied on Rajni Rani, 2015-2 SCC 682, to find that a suit and a counterclaim when disposed of by a single judgment, there are two decrees drawn up, and both have to be appealed separately in two different appeals.

2. Need not be two appeals

Shankar Masu Dokare v. Shobha Subhash Dokare, 2014 SCC Online Bom 1859
Abdul Nazer, 2016 SCC OnLine Ker 41103; Girija v. Rajan, 2015 (1) KerLT 695, was reversed and held – single appeal filed would be maintainable.
K. Kandasamy v. P. Natarajan, Second Appeal No. 144 of 2012 decided on 28.07.2025 by Madhya Pradesh High Court at Gwalior, held – Order VIII Rule 6A of the CPC treats the counterclaim as a cross-suit which culminates in a single judgment and a composite decree, does not necessitate multiplicity of appeals.

Ramesh Chand v. Om Raj, 2022 (2) SLC 1145, relied on in the impugned judgment is distinguished by the Apex Court holding as under:

“17. Ramesh Chand, as relied on in the impugned judgment, also found that where both the suit and the counter claim are disposed of by a common judgment, regardless of whether separate decrees have been prepared, there shall be two appeals filed (Para 42 (iv)). The appellants argued that that this would in fact be contrary to the principle enunciated in the very same decision in Para 42 (i), that when two suits are consolidated and tried together, the same can be subjected to challenge by way of a single appeal, while, two suits, which were not consolidated but are decided by a common judgment, require a challenge by way of two appeals (Para 42(iii)), as held in Rajni Devi (Rajni Rani, 2015-2 SCC 682). It was found that there could be situations when the suit is dismissed; in default or as withdrawn, then the counter claim is continued.”
“18. The aforesaid decisions clearly indicate that there is a cleavage of opinion, insofar as whether two appeals are required to be filed when there is a suit and a counterclaim, both being disposed of by a common judgment. There also seems to be dissimilarity in the procedure adopted in the different States, in drawing up the decree from a single judgment, allowing one claim and rejecting the other, which normally gives rise to two decrees ….”

The Apex Court Analysed Rajni Rani, 2015-2 SCC 682, as under:

“… We are in full agreement with the interpretation of Rule 6A to 6D of Order VIII of the CPC; inserted in 1976, as declared in Rajni Rani, 2015-2 SCC 682. Rule 6A (1) enabled a counterclaim against the claim in the plaint, in addition to the right to plead set off. Sub-rule (2) enables the counterclaim to be treated as a cross-suit, facilitating a common judgment, both on the suit claim and the counterclaim. The plaintiff is provided a right to file a written statement in answer to the counterclaim, especially since the counterclaim is deemed to be a plaint under sub-rule (4); governed by the rules applicable to plaints. The rules relating to written statements are also made applicable to the written statement in reply to the counterclaim, by virtue of Rule 6G of Order VIII.
19. We also agree with the finding that when Rule 6C of Order VIII excludes a counterclaim, when it is an independent cause required to be agitated in an independent suit, it implies that a counterclaim should be so interlinked with the suit claim to facilitate adjudication of both; on the evidence led at one trial. It is noticing Rule 6D, that, even if the suit is stayed, discontinued or dismissed, the counterclaim may nevertheless be proceeded with; that Rajni Rani expressed the opinion, that a suit even if dismissed the counterclaim survives, which was misinterpreted by two High Courts to find a requirement for two appeals from a common judgment adjudicating a suit and counter claim.
20. We reiterate that in Ranji Rani the question was whether the rejection of a counterclaim for reason of it being barred by Order II Rule 2, has to be challenged in appeal or whether a revision would lie under Article 227 of the Constitution of India. The question of two appeals being filed from a decree in the counterclaim and the suit, did not arise at all since in Rajni Rani the suit was pending before the Trial Court, and the counterclaim alone was rejected under order VII Rule 11; which rejection order was amenable only to an appeal. But there may arise occasions where there should be two decrees drawn up, like in Rajni Rani itself. If the appeal against the dismissal of the counter claim, on a decree drawn up, is pending without a stay of the suit and eventually the suit is either dismissed or allowed, then necessarily there should be another decree drawn up, which would also have to be subjected to an appeal. “

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Survey, Revenue Records, Mutation

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Specific Relief Act

Law on Damages

Easement

Stamp Act & Registration

Natural Justice/Disciplinary Action

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Marking Secondary Evidence Without Objection: Two Apparently Divergent Views on Waiver and the Mode of Proof of Documents

Saji Koduvath, Advocate, Kottayam.

Introspection

The Supreme Court of India indisputably makes it clear — where a secondary evidence is sought to be admitted on the basis of an admission (by the opposite party), such admission must be either –

a written admission; or
a clear—express or implied—admission on a matter that is legally capable of being admitted by the opposite party.

The Supreme Court has authoritatively held that the mere marking of a document in evidence—in the absence of a clear admission, as stated above—does not preclude the opposite party from challenging its admissibility at a later stage of the proceedings.

Introduction

Howbeit, the decisions of the High Courts disclose two apparently divergent views regarding objections to the mode of proof of documents.

The first view is that an objection to the Mode of Proof must be raised strictly at the time the document is tendered in evidence. Failure to do so amounts to a waiver.
The second view is that Section 65 of the Indian Evidence Act (Section 60, BSA) is mandatory and exhaustive. Therefore, where the party relying on secondary evidence has failed to establish the foundational facts justifying the non-production of the original, the mere exhibition of a document does not preclude the opposite party from challenging its admissibility even at a later stage of the proceedings.

Sec. 65(b) Evidence Act: Admission IN WRITING alone Recognised

Section 65 of the Evidence Act (Section 60, Bharatiya Sakshya Adhiniyam) deals with secondary evidence.

Section 65(b) [Section 60(b), BSA] expressly mandates – where a document is sought to be admitted in evidence based on an admission, it must be ‘in writing‘.

Section 65(b) of the Evidence Act reads as under:

“65. Cases in which secondary evidence relating to document may be given: Secondary evidence may be given of the existence, condition or contents of a document in the following cases :
(a) ……..
(b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest ……”

Law Relating to “ADMISSIONS”

The general law relating to ‘Admissions’ is contained in Sections 17 to 31 of the Evidence Act (Sections 15 to 20, BSA). In the teeth of the statutory requirement of an admission ‘in writing’ under Section 65(b) of the Evidence Act, on a harmonious consideration, the doctrine of “proof for no objection” (or implied admission) must remain confined to matters that are legally ‘capable of being admitted or waived’ by the party against whom it is to be proved.

Examples for matters ‘capable of being admitted or waived’:

1. A copy of a document — original signed/executed by the opposite party himself.
2. A copy of a document — the opposite party is conversant with the original or its contents.
3. A photograph of a person or a scene — where the opposite party or witness is acquainted with the person or scene.
4. A copy of an Order passed by a Public Authority — where the existence of the Order is known to the opposite party.

The Two Apparently Divergent Views

1. R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy

The classic decision usually pointed out to support the first view (objection be raised when the document is tendered) is – R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple (R.C. Lahoti, Ashok Bhan, JJ.), (2003) 8 SCC 752. It is held in this decision as under:

“One document A/30 is the photocopy of a certified copy of the decision given by the Charity Commissioner. This document was tendered in evidence and marked as an exhibit without any objection by the defendants when this was done. The plaintiff has in his statement deposed and made it clear that the certified copy, though available, was placed on the record of another legal proceedings and, therefore, in the present proceedings he was tendering the photocopy. There is no challenge to this part of the statement of the plaintiff. If only the tendering of the photocopy would have been objected to by the defendant, the plaintiff would have then and there sought for the leave of the Court either for tendering in evidence a certified copy freshly obtained or else would have summoned the record of the other legal proceedings with the certified copy available on record for the perusal of the Court. It is not disputed that the order of Charity Commissioner is a public document admissible in evidence without formal proof and certified copy of the document is admissible in evidence for the purpose of proving the existence and contents of the original.”
“The other document is the rent note executed by defendant No.2 in favour of plaintiff. Here also photocopy of the rent note was produced. The defendant No.2 when in witness box was confronted with this document and he admitted to have executed this document in favour of the plaintiff and also admitted the existence of his signature on the document. It is nobody’s case that the original rent note was not admissible in evidence. However, secondary evidence was allowed to be adduced without any objection and even in the absence of a foundation for admitting secondary evidence having been laid by the plaintiff.”

R.V.E. Venkatchalla Gounder continued as under:

“The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. …. a prompt objection …. firstly … enables the Court to apply its mind and pronounce its decision on the question of admissibility …… and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party …. a regular mode …. removing the objection …. is available …. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a documen…….”

‘Mode of Proof‘ and ‘Waiver‘ in R.V.E. Venkatchalla must be read in its factual context

Because the Apex Court, in R.V.E. Venkatchalla Gounder v. Arulmighu, accepted the Charity Commissioner’s Order and the rent notes on specific factual grounds—the former being a certified copy already on record elsewhere, and the latter bearing the opposite party’s signature—the general observations on “mode of proof” and “waiver” in this decision must be read in its factual context. That is, the broader propositions cannot not be applied in isolation.

Note: Subsequent decisions that were founded on R.V.E. Venkatachalla Gounder without considering these crucial factors that explain the decision, do not reflect the true ratio and legal principle laid down in this decision. This distinction becomes even more crucial in light of the statutory scheme of Sections 63 and 65 of the Evidence Act (Sections 58 and 60, BSA).

2. Tharammel Peethambaran v. T. Ushakrishnan

Latest decision on the second view (mere marking does not preclude challenging admissibility) is – Tharammel Peethambaran v. T. Ushakrishnan, AIR 2026 SC 938, Pankaj Mithal, S.V.N. Bhatti, JJ. The crux of the decision is the following:

the secondary evidence (notarised photocopy of a Power of Attorney) is NOT admissible until the non-production of the original is accounted for – that is, until the foundational facts of Section 65, Evidence Act are established;
the court also has an obligation to decide the question of admissibility before admitting it as secondary evidence;
mere marking, or marking on admission, does not automatically prove its contents; and
Sections 63 and 65 are exhaustive.

Divergent Views: As To Proof of Marking Documents Without Objection

The following apparently divergent views require consideration:

1. If no objection (from the opposite side), mere marking of a document will prove its existence and contents.
2. Even if a document is marked without objection, unless foundational facts (for its acceptance) are presented, the document will not be relied upon by the Court.
3. Where the validity of the document is already under challenge (or subjected to challenge in cross examination of a relevant witness), mere marking will not prove its existence or contents.

Important Supreme Court Decisions that are Usually Relied upon

It is pertinent to note – the Supreme Court has not adopted any of the aforesaid (three) propositions as an absolute or unqualified rule.

The following are the often-cited decisions of the Supreme Court to support the proposition – Mere Marking (without objection) Prove the Contents.

Often Cited Decisions	Evidence Considered	Reason for accepting this proposition
P.C. Purushothama Reddiar v. S. Perumal,(1972) 1 SCC 9	Police reports without examining the Head Constables who covered those meetings.	The reports were made by public servants in their official duty, falls u/S. 35, Evid. Act.
R.V.E. Venkatachalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752	Ext. A 30, the photostat copy of the Order of the Asst. Commissioner, H.R. and C.E. Admini. Dept.	Photostat copy was the Order of the Public Authority. (Foundational facts for not producing the original furnished.)
R.V.E. Venkatachalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752	Ext. A 34, the copy of the rent agreement.	Photostat copy of the rent receipts were executed by the opposite side.
Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745	The copy of the rent receipts.	The rent receipts were executed by the opposite side.
Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758 (The observations on Marking without objection are obiter.)	Carbon copy of dying declaration alone furnished. If it was done without proving the foundational circumstances, the opposite party must have raised the objection at the time of admission. In case of failure, it would have been precluded from being raised at a belated stage.	Here, original dying declaration was not traceable. Hence the secondary evidence was adduced with proper foundational evidence. (It is also said – mere admission of a document in evidence does not amount to its proof. Nor, mere marking does not dispense with its proof.)

Cases often Cited to support the Proposition – Mere Marking (even without objection) WILL NOT Prove the Contents

Often Cited Decisions	Evidence Considered	Reason for *not* accepting this proposition
Ramji Dayawala v. Invest Import: AIR 1981 SC 2085: (1981) 1 SCC 80	Truth of contents of a letter and telegrams.	The *truth* of the facts stated in a document *was in issue. Hence, the contents have to be proved by the evidence of persons who can vouchsafe for the* truth.
M. Chandra v. M. Thangamuthu, 2010-9 SCC 712	Validity and Genuineness of the Photocopy (of the Caste Certificate)	Validity and Genuineness of the caste certificate were very much in question
H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240	Contents of the Photocopy* was not received as proof* -observing no ‘foundational’ evidence.	Photocopy was shown to the witness during cross-examination alone, and Signature alone was admitted by the witness.
Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865, (1972) 4 SCC 562	Accounts of the Plaintiff	The accounts of the Plaintiff would not be proved by itself.
Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865, (1972) 4 SCC 562	Ext. A-41 was a copy of the written statement (of the plaintiff) in a previous suit. Ext. A-42 is an affidavit (of the plaintiff) in another Suit.	1. The documents were not inter-party. 2. They were not shown to the defendant in cross-examination. 3. Documents do not prove themselves – particularly because of the issues. 4. They were not relevant. 5. *Mere marking* of an exhibit *does not dispense with proof.*
LIC v. Ram Pal Singh Bisen, (2010) 4 SCC 491	The documents were the *Inquiry Report* and the evidence therein.	The documents did not partake the character of admissible.

A Common Thread in the Above (Apparently Divergent) Decisions

The decisions (in the two tables given above) are harmonious rather than conflicting. Certain classes of documents alone can be marked ‘without objection’. It can be the document –

(i) executed by the opposite party or by the witness through whom it is marked,
(ii) an Order of a Public Authority, the existence of which is known to the opposite party.

Correct Legal Position Can be Discered from Narbada Devi v. Birendra Kumar

The Apex Court held in Narbada Devi Gupta v. Birendra Kumar Jaiswal, (2003) 8 SCC 745, to the following effect:

Mere marking of a document cannot be held to be proof of its contents (as held in Ramji Dayawala & Sons (P) Ltd., (1981) 1 SCC 80).
“The situation is, however, different” where the signatures “are admitted by the opposite party”.

Even in such cases, where the truth, genuineness, validity or correctness of the contents is itself in dispute, marking alone does not establish those facts.

Section 294 CrPC and Marking Documents on Admission

Section 294 in The Code of Criminal Procedure, 1973

294. No formal proof of certain documents.
(1)Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document. ….

Upon a total analysis of the law governing the marking of documents on admission, the following legal principles emerge:

The Court Can Mark the Documents on Admission under Section 294 of the Code of Criminal Procedure.
Mere Marking Is Not Proof of Contents: Simply marking a document as an exhibit upon admission does not, by itself, constitute proof of the truth or accuracy of its contents.
Documents Subject to Judicial Presumption: Documents whose contents carry a statutory presumption of truth (such as an order issued by a public authority) may be taken as proved upon admission under Section 294 of the CrPC.
Documents Capable of Being Admitted by the Opposite Party: Documents that are legally capable of being admitted by the opposing party (for instance, an instrument executed by that party) can be established as proved upon admission under Section 294.

Secondary Evidence: Implied Waiver Cannot Override S. 65(b), Unless “Admission“

Section 65(b) of the Evidence Act is the enabling provision to adduce secondary evidence on ‘written admission’. The scheme of the Evidence Act makes it clear, in strong words, that an implied admission, or a waiver inferred from mere silence, cannot override the express statutory requirement of a written admission under Section 65(b).

A harmonious consideration of the competing principles suggests the following:

(i) the doctrine of implied admission or waiver arising from a failure to object marking the document, and (ii) the statutory requirement of Section 65(b) of the Evidence Act [Section 60(b), BSA] operate in distinct fields and should not be mixed up.

Effect of Express “Admission” by the Advocate

In cases where the advocate expressly “admits” a fact (not matters of law or legal conclusions), it may bind his client. Admissions by advocate are to be deciphered from Judgment (Sarcar) or Order-sheet.

See: Himalayan Coop. Group Housing Society v. Balwan Singh, (2015) 7 SCC 373;
Swami Krishnanand Govindanand v. M.P. Oswal Hosiery, (2002) 3 SCC 39;
Veeramma v. Appayya, AIR 1957 AP 965;
Prithwi Chand v. Sukhraj Rai, AIR 1940 FC 25.

How to Put “Truth of the Facts” in a Document in Issue?

Ramji Dayawala v. Invest Import: AIR 1981 SC 2085: (1981) 1 SCC 80, held as under:

“If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouch safe for the truth of the facts in issue.”

Following are the methods to place on record the objection to the formal proof of documents:

first, by pleadings (already made),
second, by objecting the marking of the document while it is tendered in evidence ,
third, the defence developed during the cross-examination of a relevant witness.

In Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865, it is held, with respect to certain documents marked, as under:

“27. …. These documents would not by themselves prove the truth of the statements contained therein particularly because of the issues in suit.”

Four Stages before a Court of law Rely upon a Document

In PRS Hospital v. P. Anil Kumar (2021 (1) KLJ 923 (S.V. Bhatti, Bechu Kurian Thomas, J.), pointed out that there are four stages before a Court of law for relying upon a document. They are:

(i) marking of a document,
(ii) admissibility of a document,
(iii) proof of contents of the document and
(iv) evaluation of the document. ( Also See: Assistant Commissioner of Customs v. Edwin Andrew Minihan, 2023-7 KHC 512; 2024-1 KLT 24).

It is further held in PRS Hospital v. P. Anil Kumar (2021 KHC 1; 2021 (1) KLJ 923, relying on Sait Tarajee Khimchand v. Yelamarti Satyam Alias Satteyya [(1972) 4 SCC 562] and Ramji Dayawala and Sons (P) Ltd. v. Invest Import [(1981) 1 SCC 80, as under:

“23. … By the mere marking of a document, the person bound to prove that document, cannot be absolved of the burden to prove it. Marking of a document is different from proof of the contents of a document. …..
24. … In order to establish the right to adduce secondary evidence, a proper foundation is required to be laid. When the original of a document is not produced nor any factual foundation laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence.”

Should a Document Be Rejected Outright If the Court Finds It Inadmissible?

It cannot be – except in cases like deficiency of stamp duty.

To answer the question (should a document be rejected outright if the court finds it inadmissible) the following matters require consideration:

1. As per Sec. 5 of the Evidence Act evidence can be given with respect to facts in issue and relevant facts, and of no others.
2. Under Rules 3 to 11 of Order 13, CPC, the Court can reject, at any stage of trial of the suit, any document which is irrelevant or inadmissible.
3. Order VII rule 14, Order VIII rule 1A and Order XIII rule 1 of the CPC specify time limits for producing documents relied upon by the parties. The left-out documents can be presented with leave of the court.
4. As per the third para of Section 136 of the Evidence Act (Section 141, BSA), if the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge can permit evidence of the second fact to be given before the first fact is proved, on the undertaking of the concerned party to give proof of such second fact.
5. In Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158, it is held that objections to marking a document should be recorded when the document is tendered in evidence and the document should be marked tentatively subject to objections which are decided or adjudicated later on.
6. In RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548: (2003) 8 SCC 752,it is held that the objection as to ‘mode of proof’ should be taken at the time of marking of the document as an exhibit, so that the defect can be cured by the affected party. (The law laid down in Bipin Shantilal, as regards objection to marking documents, had been, impliedly, reversed.)
7. In State of NCT of Delhi v. Mukesh (Three Judge Bench), 2014-15 SCC 661, refuted to follow Bipin Shantilal Panchal (as regards marking documents) observing as under:
- “The decision referred to by the learned Counsel in the case of Bipin Shantilal Panchal [supra] has to be read and understood in that context.”
8. In the decision, In Re: To Issue Certain Guidelines Regarding Inadequacies And Deficiencies In Criminal Trials v. State Of Andhra Pradesh (Three Judge Bench), 2021-10 SCC 598, considered objections to the oral evidence and ruled that Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158, stood modified (overruled), and directed as under:
- “…….. Therefore, this court is of opinion that the view in Bipin Shantilal Panchal should not be considered as binding. The presiding officer therefore, should decide objections to questions, during the course of the proceeding, or failing it at the end of the deposition of the concerned witness.”
In the ‘Draft Rules of Criminal Practice, 2021’, (annexed to the Order of the Supreme Court) it is directed as regards marking of documents, inter alia, as under:
- “…. If proper proof is not offered for that document at the time when it is marked, it shall be marked as Exhibit P-1/PW1 (subject to proof).”
9. The courts in India consistently follow RVE Venkatachala Gounder v. Arulmigu (Two Judge Bench), AIR 2003 SC 4548: (2003) 8 SCC 752, and Dayamathi Bai v. K.M. Shaffi (Two Judge Bench), AIR 2004 SC 4082: 2004- 7 SCC 107, (as regards marking documents) declining Bipin Shantilal Panchal v. State of Gujarat (Three Judge Bench), AIR 2001 SC 1158.
10. In no subsequent case the Apex Court applied (as regards marking documents) the dictum in Bipin Shantilal Panchal v. State of Gujarat.

Can the Documents be marked “Tentatively”?

In Nambi Narayanan v. State of Kerala, 2010-1 KHC 293; 2010-1 KLJ 685 ; 2010-1 KLT(SN) 46, it is held that, except in cases as to deficiency of stamp duty, the course to be followed when objections were raised, is –

(i) to mark the documents tentatively, subject to the objection, making a note of it;
(ii) to decide the objection at the last stage – in the final judgment; and
(iii) if the court finds at the final stage that the objection raised is sustainable, exclude it from consideration.

It is seen that the view adopted by the Kerala High Court substantially agrees with the the principles in the subsequent Supreme Court ruling in In Re: To Issue Certain Guidelines Regarding Inadequacies And Deficiencies In Criminal Trials v. State Of Andhra Pradesh, (2021) 10 SCC 598. See also: D. Usharani v. Y. Gangaiah, 2023 APHC 51935; B.S. Krishnan v. Peevees Exim Company Pvt. Ltd., (Madras), 2023 2 LW 469.

Marking Documents “Subject to Objection or Proof”

In M. Siddiq v. Mahant Suresh Das, (Ayodhya Case), 2020-1 SCC 1, the practice of marking documents “subject to objection and proof” was referred to as under:

“539. On 7 February 2002, counsel for the plaintiffs in Suit 5 filed a report dated 3 February 2002 before the High Court of Dr. KV Ramesh, pertaining to the “Ayodhya Vishnu Hari temple inscription”. The documents were taken on record “subject to objection and proof” as required by the provisions of the Evidence Act 1872. ….”

The practice of exhibiting documents ‘subject to proof and relevancy’ is also referred to in –

Jarnail Singh v. State of Punjab, 2022-10 SCC 451 (photocopy),
Uttaradi Mutt v. Raghavendra Swamy Mutt, 2018-10 SCC 484,
Ameer Minhaj v. Dierdre Elizabeth (Wright) Issar, 2018-7 SCC 639,
Nandkishore Lalbhai Mehta v. New Era Fabrics Pvt. Ltd., 2015-9 SCC 755,
State of Bihar v. PP Sharma, AIR 1991 SC 1260: 1992 Supp1 SCC 222,
Nilavarnisa v. MM Faizal, 2019-1 KHC 699; 2019-1 KLT 652.

Is Exhibiting a Document an Administrative Act.

In the light of the above, though ‘objection as to the mode of proof falls within procedural law’ (Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082: 2004- 7 SCC 107), it is beyond doubt that it cannot be said that exhibiting a document is an administrative act – as held in Bama Kathari Patil v. Rohidas Arjun Madhavi, 2004-2 AllMR 290; 2004-3 BomCR 509; 2004-3 CivCC 14; 2004-2 MhLJ 572.

Conclusion

The Supreme Court precedents unerringly establish that a written admission is a prerequisite to admit secondary evidence under Section 65(b) of the Evidence Act [Section 60(b), BSA]. Refer: Tharammel Peethambaran v. T. Ushakrishnan, AIR 2026 SC 938.
Still, where there is a clear—express or implied—admission of a matter legally capable of being admitted by the opposite party (for example, a document executed by the opposite party himself), the court is entitled to proceed upon such admission (invoking general provisions as to ‘Admission’ in the Evidence Act). Refer: Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745.
Where the execution, genuineness or contents of a document is specifically disputed—either by the pleadings or by the defence elicited in the cross-examination of the relevant witnesses—the mere absence of raising an objection at the time of marking cannot, by itself, be treated as an implied admission. Refer: M. Chandra v. M. Thangamuthu, 2010-9 SCC 712.
The following two things operate in distinct fields and should not be mixed up: (i) The doctrine of implied admission or waiver arising from a failure to object marking the document and (ii) the statutory requirement of Section 65(b) of the Evidence Act [Section 60(b), BSA]. Refer: Tharammel Peethambaran v. T. Ushakrishnan, AIR 2026 SC 938.
The document, for which proper proof is not offered, has to be marked “subject to proof”. Refer: (See: D. Usharani v. Y. Gangaiah, 2023 APHC 51935; B.S. Krishnan v. Peevees Exim Company Pvt. Ltd., (Madras), 2023 2 LW 469).

End Notes 1

Legal Issues Answered

The following legal issues are answered in this Article:

1. Should objection to the Mode of Proof must invariably be raised at the very moment the document is tendered in evidence. (Otherwise, it stands waived.)	No. Especially where it is put in issue either by the pleadings or by the defence elicited in the cross-examination of the relevant witnesses.
2. When a document is marked without objection as to its mode of proof, is it open to the other side to object its admissibility afterwards? If so, which class of documents fall in that group?	Yes. But it is confined to a class of documents. That is, where the Mode of Proof or contents of a document stand admitted by a clear — express or implied — admission (such as a document executed by the party or the witness himself).
3. . Who Should Object FIRST – Court or Opposite Side?	Not by court, in the class of documents where the Mode of Proof or contents of a document stand admitted on a clear — express or implied — admission (such as a document executed by the party or witness himself).
4. Effect: A document executed by the opposite party (e.g., rent receipt) in another proceeding is marked. Does it amount to valid admission?	Yes. Read Article: A Defective Legislative Piece as regards Documents “Admitted in Writing” in S. 65(b) of the (Old) Evidence Act is Corrected in S. 58 of the BSA.
5. Can the court vociferously drum-out a secondary evidence, even when the document and truth of its contents are admitted by the other side (or truth cannot be presumed under Ser. 114 Evidence Act)?	No. Sec. 136, Evidence Act permits to furnish a fact before proving it formally, if “the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking”.
6. Effect: A party fails to object marking a document at the time of marking – but the truth, genuineness, execution and contents were specifically put in issue either by the pleadings or by the defence elicited in the cross-examination of the relevant witnesses.	In such cases, the failure to object marking is not fatal.

R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy

The view in R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752, is the following:

Failure to raise objection as to mode of proof of a document (such as secondary evidence – photostat) should be raised at the time while it is marked ; and its failure amounts to waiver.

This view is also found in:

Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.
Iqbal Basith v. N Subbalakshmi,(2021) 2 SCC 718;
PC Thomas v. PM Ismail, AIR 2010 SC 905; 2009-10 SCC 239
Oriental Insurance Co v. Premlata: 2007-8 SCC 575
Thimmappa Rai v. Ramanna Rai,(2007) 14 SCC 63.

R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy: Relevant Findings

In R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752 (R.C. Lahoti, Ashok Bhan, JJ.), held as under:

“Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently.
The objections as to admissibility of documents in evidence may be classified into two classes:
- .(i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and
- (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient.
In the first case, merely because a document has been marked as ‘an exhibit’, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision.
In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence.
In the first case, acquiescence would be no bar to raising the objection in superior Court.”
This view is also found in
- Neeraj Dutta v. State (Govt. of Delhi) [2023] 4 SCC 731: five-Judge Bench,
- Iqbal Basith v. N Subbalakshmi,(2021) 2 SCC 718,
- PC Thomas v. PM Ismail, AIR 2010 SC 905; 2009-10 SCC 239,
- Oriental Insurance Co v. Premlata: 2007-8 SCC 575,
- Thimmappa Rai v. Ramanna Rai,(2007) 14 SCC 63,
- Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.

Neeraj Dutta v. State (Govt. of Delhi) [2023] 4 SCC 731

In Neeraj Dutta v. State (Govt. of Delhi) [2023] 4 SCC 731: Five-Judge Bench, held as under:

“Once a document has been properly admitted, the contents of the documents would stand admitted in evidence, and if no objection has been raised with regard to its mode of proof at the stage of tendering in evidence of such a document, no such objection could be allowed to be raised at any later stage of the case or in appeal vide Amarjit Singh vs. State (Delhi Admn.) 1995 Cr LJ 1623 (Del). But the documents can be impeached in any other manner, though the admissibility cannot be challenged subsequently when the document is bound in evidence.”

Tharammel Peethambaran v. T. Ushakrishnan, AIR 2026 SC 938

The view in Tharammel Peethambaran v. T. Ushakrishnan, AIR 2026 SC 938, is the following:

Section 65 Evidence Act is exhaustive. Secondary evidence (notarised photocopy of the alleged Power of Attorney) is NOT admissible until the non-production of the original is accounted for.

The court relied on –

H. Siddiqui (D) By Lrs. v. A. Ramalingam AIR (2011) SC 1492
Rakesh Mohindra v. Anita Beri, (2016) 16 SCC 483.
Ashok Dulichand v. Madahavlal Dube and Another (1975) 4 SCC 664;
Chandra v. M. Thangamuthu, (2010) 9 SCC 712.

The view in Tharammel Peethambaran v. T. Ushakrishnan, AIR 2026 SC 938, is also found in:

LIC v. Ram Pal Singh Bisen [(2010) 4 SCC 491
Yeshoda v. Shoba Ram AIR 2007 SC 1721
State of Rajasthan v. Khemraj [(2000) 9 SCC 241 : AIR 2000 SC 1759] ,
Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457].

Also Read: Tharammel Peethambaran v. T. Ushakrishnan (2026): A Classic Decision on Secondary Evidence

End Notes 2

Important Findings (Tharammel Peethambaran v. T. Ushakrishnan)

“19. The crux of the matter depends on whether Exh. B-2 can be treated as documentary evidence warranting interpretation of the clauses and the alleged contradictions with Exh. A-3 and A-4. Exh. B-2 is a photocopy, or a mechanical copy, of the purported PoA. This, therefore, implies that Exh. B-2 is, at best, secondary evidence. Secondary evidence is evidence that proves the contents of an original document through a medium that is one step removed from the source. Section 63 of the Indian Evidence Act provides an exhaustive list of what constitutes secondary evidence. This includes certified copies, copies made from the original by mechanical processes ensuring accuracy, copies compared with such copies, counterparts of documents against parties who did not execute them, and oral accounts of the contents given by a person who has seen the document.
20. The broad parameters summarising the procedure to be followed for introducing secondary evidence are reiterated and read thus:
20.1 The fundamental principle of the Indian Evidence Act is that facts have to be established by primary evidence.
- Jagmail Singh v. Karamjit Singh, (2020) 5 SCC 178. (Para 14)
Section 64 mandates that documents must be proved by primary evidence, which is considered the “best evidence”.
Primary evidence is the rule, while secondary evidence is an exception admissible only in the absence of primary evidence. A party is generally required to produce the best evidence available; so long as the superior evidence (the original) is within a party’s possession or reach, they cannot introduce inferior proof (secondary evidence).
- Smt. J. Yashoda v. K. Shobha Rani (2007) 5 SCC 730
20.2 Before secondary evidence can be admitted, the party relying on it must lay a factual foundation.
This involves two steps:
- First, the party must prove that the original document actually existed and was executed.
- Secondly, the party must establish valid reasons as to why the original cannot be furnished.
- Kaliya v. State of Madhya Pradesh, (2013) 10 SCC 758
20.3 Secondary evidenceis inadmissible until the non-production of the original is accounted for in a manner that brings the case within the specific exceptions provided in Section 65.
- H. Siddiqui (D) By Lrs. v. A. Ramalingam AIR (2011) SC 1492
If the original itself is found to be inadmissible through failure of the party who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents. Smt. J. Yashoda v. K. Shobha Rani (2007) 5 SCC 730
20.4 Section 65 of the Evidence Act is exhaustive and states the specific circumstances under which secondary evidence is permissible.
To introduce secondary evidence, a party must satisfy the conditions of one of the clauses (a) through (g) of Section 65.
20.5 Further, admitting a document as secondary evidence does not automatically prove its contents.
The secondary evidence must be authenticated byfoundational evidence showing that the alleged copy is, in fact, atrue copyof the original. For instance, if a party wishes to introduce a photostat copy, they must explain the circumstancesunder which the copy was prepared and who possessed the original at the time the photograph was taken.
- Ashok Dulichand v. Madahavlal Dube and Another (1975) 4 SCC 664;
- Chandra v. M. Thangamuthu, (2010) 9 SCC 712.
20.6 Mere admission of a document or making it an exhibit does not dispense with the requirement of proving it in accordance with the law. The court has an obligation to examine the probative value of the document and decide the question of admissibility before making an endorsement on the secondary evidence.
If the foundational facts, such as the loss of the original or the explanation for its non-production, are not established, the court cannot legally allow the party to adduce secondary evidence.
- Rakesh Mohindra v. Anita Beri, (2016) 16 SCC 483.
20.7 There is no requirement that an applicationmust be filed to lead secondary evidence. While a party may choose to file such an application, secondary evidence cannot be ousted solely because no application was filed. It is sufficient if the party lays the necessary factual foundation for leading secondary evidence either in the pleadings or during the course of evidence
- Dhanpat v. Sheo Ram 2020 (16) SCC 209

Condition for Secondary Evidence# Statutory Clause #Type of Secondary Evidence Allowed
Adversary Possession                            Section 65(a)      Any secondary evidence (after notice).
Written Admission                                 Section 65(b)      The written admission itself.
Loss or Destruction                               Section 65(c)       Any secondary evidence.
Immovable Original                               Section 65(d)      Any secondary evidence.
Public Document                                     Section 65(e)      Only a certified copy.
Law-Specified Document                     Section 65(f)       Only a certified copy.
Voluminous Records                              Section 65(g)      Testimony of a skilled examiner.

21. Therefore, the introduction of secondary evidence is atwo-step process, wherein,
- first, the party must establish the legal right to lead secondary evidence, and
- second, they must prove the contents of the documents through that evidence.
- The twin requirements are conjunctive.
22. The High Court recorded a finding which is not challenged, that the PoA produced by the 1st Defendant is a notarised photocopy, and not the original document. The 1st Defendant is obligated to follow the procedure for adducing secondary evidence, and thereafter, claim presumption, if any, available to a document so adduced in evidence. It is axiomatic that secondary evidence is permissibleonly as an exception to the requirement of adducing primary evidence.
23. ….. In our considered view, neither Section 33 of the Registration Act nor Section 85 of the Evidence Act would come into application if the primary requirement of adducing secondary evidence is discharged by the party relying on the document. Section 85 of the Evidence Act falls under Chapter V, titled Documentary Evidence. In the absence of an original or at least a secondary evidence, it is impermissible to apply Section 85 of the Indian Evidence Act to conclude the execution and extent of authority given by the plaintiff to the 1st defendant. No order is brought to our notice through which secondary evidence is brought on record before the Trial Court. A photocopy of a document is no evidence unless the same is proved by following the procedure set out. Relying on Exh. B-2, the First Appellate Court acted on inadmissible evidence and accepted the existence of power to alienate. Exh. B-2/photocopy is no evidence, and the incorrect reliance on no evidence has been rightly corrected by the High Court through the impugned judgment. The High Court has considered the misreading of evidence by the Appellate Court and, by applying the correct principles of law, allowed the second appeal.”

End Notes 3

Decisive decisions on Marking Documents Without Objection

Following are the decisive decisions on marking Docuements without objection

P.C. Purushothama Reddiar v. S. Perumal,(1972) 1 SCC 9 (Three Judge Bench – A.N. Grover, K.S. Hegde, A.N. Ray, JJ.)	Admissibility of police reports without examining the Head Constables who covered those meetings. Those reports were marked without any objection. Hence it was not open to the respondent to object to their admissibility.	Relied on Bhagat Ram v. Khetu Ram, AIR 1929 PC 110.
R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752 (R.C. Lahoti, Ashok Bhan, JJ.)	Photo copies were admitted in evidence without leading foundation – without objection. They cannot be held inadmissible for originals were not produced.	Relied on Padman v. Hanwanta, AIR 1915 PC 111 P.C. Purushothama Reddiar vs. S.Perumal
PC Thomas v. PM Ismail, AIR 2010 SC 905; 2009-10 SCC 239.	Non-examination and absence of “proof of acknowledgment” by the author – If no objection on ‘mode of proof’ in trial court, it will be too late (in appeal) to raise objection on the ground of mode of proof – that is, “non production of John K as a witness”.	…
Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 ACJ 616; 1986 Guj LH 27; 1985-2 GujLR 1315	No objection about the truth* of contents* of Ex. 32. The witness of the defendant accepted the contents. Therefore, *too late in the day* to canvass that contents of Ex. 32 were not proved.	…
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082	Objection to be taken (secondary evidence) at trial before document is marked as an ‘exhibit’ and admitted to the record.	Relied on Gopal Das v. Sri Thakurji, AIR 1943 PC 83; R.V.E. Venkatchalla Gounder v. Arulmighu , (2003) 8 SCC 752
Sarkar on Evidence .	If copies of the documents are admitted without objection in the trial Court, no objection can be taken in appeal	Referred to in: Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.

EFFECT OF MARKING DOCUMENTS WITHOUT OBJECTION

Effect of marking a document without formal proof on admission (or without objection) is also a subject of controversy.

Read the Article : Marking of Photocopy and Law on Marking Documents on Admission (Without Formal Proof)

Propositions Analysed

First view (a) Proof (Contents and ‘Truth of its Contents’) stands established. It cannot be questioned afterwards. (b) Truth also: See: Rafia Sultan v. Oil And Natural Gas Commission, 1986 ACJ 616; 1985-2 GujLR 1315. (c) Admission of contents – but, does not dispense with proof of truth of its contents.	(a) RVE Venkatachala Gounder v. Arulmigu Viswesaraswami: AIR 2003 SC 4548; (b) Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1985-2 GujLR 1315: No objection about the truth* of contents* … before the trial Court. … It is therefore too late in the day for Miss Shah for the Commission to canvass for the first time before us in appeal. Neeraj Dutta Vs. State (Govt. of N.C.T. of Delhi) reported in [2023] 4 SCC 731: If no objection as to its mode of proof , no such objection could be allowed to be raised at any later stage. (c) Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865; Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796.
Second View Even if no objection, it does not dispense with proof (as to, both, existence of the document and its truth). In such a case the document will not be taken as proved. (Note: It may not be lawful to apply this principle literatim. A close analysis of each case is essential.)	LIC v. Ram Pal Singh Bisen: 2010-4 SCC 491 (Filing of the Inquiry Report or the evidence adduced during the domestic enquiry); H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240 (Copy of a power of attorney alone was shown to the respondent during cross-examination and he admitted his signature thereon only, and not its contents).
Third view If truth is in issue, mere proof of contents, or marking without objection, is not proof of truth.	See: Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745; Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085: (1981) 1 SCC 80.
Fourth view Admission of contents, and dispenses with proof and truth; but its probative value will be a matter for appreciation by court.	See: State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684 (Admission and probative value – different); Rakesh Mohindra v. Anita Beri: 2015 AIR(SCW) 6271; *Kaliya v. State of MP*: 2013-10 SCC 758; H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492; Rasiklal Manikchand v. MSS Food Products: 2012-2 SCC 196.
Fifth view Admission of contents, and dispenses with proof and truth; but Court should require (in proper cases) the party producing the document to adduce proper evidence, and to cure formal defects, invoking – • Sec. 165 of Evidence Act • Sec. 58 of Evidence Act • O. XII, r. 2A Proviso, CPC and • Sec. 294 of the CrPC.	See: Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511; Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740; KK Ramachandran Master v. MV Sreyamakumar, (2010) 7 SCC 428; AIR 2015 SC 3

End Notes 4

Chapter V of the Evidence Act deals with Documentary Evidence

Sections 61 to 65 deal generally with Preliminary Aspects as to Admissibility. It can be summarised as under:

Section 61. The contents of documents may be proved either by primary or by secondary evidence.
Section 62. Primary evidence means the document itself
Section 63. Secondary evidence. Secondary evidence means and includes–
- .(1) certified copies
- (2) copies made by mechanical processes
- (3) copies compared with the original
- (4) counterparts of documents
- (5) oral accounts
Section 64 Documents must be proved by primary evidence.
Section 65. Cases in which secondary evidence may be given.
- .(a) when the original is in the possession of the person against whom…
- (b) when the existence, condition or contents admitted in writing
- (c) when the original has been destroyed or lost,
- (d) when the original is not to be easily movable
- (e) when the original is a public document
- (f) when a certified copy is permitted to be given in evidence
- (g) when the originals consist of numerous accounts …

Certified copy of a Regd. Deed can be Given Only if Foundational Facts

According to clause (f) of Section 65 of the Evidence Act [Section 60, BSA], certified copy of a registered deed can be given in evidence (without reference to the original) only if the foundational facts for the non production of the original is presented. Because such a deed, is not a public document, and a certified copy of it is not permitted by any law “to be given in evidence” (without saying where the original is).

Proof on Documents- General Provisions

1. Section 91 expressly bars oral evidence to prove the terms of a contract if they are reduced to writing.

2. Sec. 22 and 144 of the Evidence Act postulate that the oral assertions as to contents of documents are not.

Modes of Proof of Documents

Modes of Proof of Documents (as to, both, ‘formal proof’ and ‘truth of the contents’) include the following:

Admission (Sec. 17, 21, 58, 67, 70).
Evidence of a person who has seen – ocular evidence (Sec. 59).
An attesting witness (Sec. 59).
Opinion of one who is acquainted with the writing (Sec. 47).
Admission in judicial proceedings (Sec. 32, 33).
Handwriting expert-opinion evidence/scientific evidence (Sec.45).
Evidence of one in the ordinary course of his business or official duty (Sec. 32, 34, 35 or 114).
Invoking (specific) presumptions under Sec. 79 to 90A.
Presumptions (general) under Sec. 114.
Circumstantial evidence: on probability or inferences (Sec. 114).
Court-comparison (Sec. 73).
Facts judicially noticeable (Sec. 56 and 57).
A fact of common-knowledge. (It does not require proof. See: Union Of India Vs. Virendra Bharti: 2011-2 ACC 886, 2010 ACJ 2353; Rakhal Chakraborty Vs. Sanjib Kumar Roy: 1998-1 GauLR 253, 1997-2 GauLT 705)

Internal evidence afforded by the contents of the document; a link in a chain of correspondence; recipient of the document. (Mobarik Ali Ahmed Vs. State of Bombay, AIR 1957 SC 857).

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Survey, Revenue Records, Mutation

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Specific Relief Act

Law on Damages

Easement

Stamp Act & Registration

Natural Justice/Disciplinary Action

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Kannan v. Adisiva (2026) Requires Reconsideration: Section 465 CrPC Appears to Have Been Misread

Saji Koduvath, Advocate, Kottayam.

Part 1

Section 465 of the Code of Criminal Procedure reads as follows:

“465. Finding or sentence when reversible by reason of error, omission or irregularity — (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation of revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.
(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.”

From Section 465 CrPC, the following propositions emerge:

First: A mere error, omission or irregularity (for example, in the sanction to prosecute under Section 19(3) of the Prevention of Corruption Act**) attracts the “failure of justice” test. Such a defect does not, by itself, vitiate the proceedings; that is, the proceedings are not automatically vitiated.
Second: The complete absence of a mandatory sanction stands on a different footing. Such a defect goes to the root of the prosecution and is not treated as a mere error, omission or irregularity capable of being cured under Section 465 CrPC. Consequently, the defect vitiates the cognizance (or the defect is not curable under Section 465 CrPC) and the prosecution CANNOT INVOKE SECTION 465 to cure it.

Accordingly, in the second category (e.g., absence of sanction), the saving provision under Section 465 is not attracted merely because the objection could have been raised at an earlier stage of the proceedings but was not. If the absence of a valid sanction remains as a fundamental defect, the prosecution cannot rely upon Section 465 to cure it. (See State of Goa v. Babu Thomas, 2005 KHC 1803: 2005 (4) KLT SN 87 : 2005 (8) SCC 130: AIR 2005 SC 3606; quoted in Luckose Joseph Formerly Village Officer, Kunnumma Village, Alappuzha v. State of Kerala, 2025 KLT (Online) 2658 : 2025 KHC (Online) 867.)

** Note: It is true that in Parkash Singh Badal v. State of Punjab, (2007) 1 SCC 1, and the decisions following it, the Supreme Court observed that Section 19 of the Prevention of Corruption Act is essentially procedural and does not go to the root of the court’s jurisdiction. Nevertheless, those decisions dealt with irregularity in an existing sanction and the applicability of the “failure of justice” test under Section 19(3). They do not detract from the “principle” recognised in State of Goa v. Babu Thomas that the complete absence of a mandatory sanction stands on a different footing and is not a mere procedural irregularity capable of being cured by the saving provision.

In Kannan v. Adisiva Enterprises, 2026 (4) KLT 151, it is observed as under:

“9. It is clear from the aforesaid provision of law that in the present case, the findings of conviction and sentence of the Trial Court, which were upheld by the Appellate Court, are not liable to be reversed in this revision proceedings unless it is shown that a failure of justice has, in fact, been occasioned due to the act of the learned Magistrate taking cognizance of the offence upon the complaint filed by the power of attorney holder of the complainant. Going by the provisions contained in sub Section (2) of Section 465 Cr.P.C, in determining whether a failure of justice has occasioned, this Court shall have regard to the fact whether the objection raised by the revision petitioner regarding the non-competence of the power of attorney holder to institute the complaint, was raised at an earlier stage in the proceedings. As far as the present case is concerned, the petitioner did not care to object the order of the learned Magistrate taking cognizance of the offence, on the basis of the complaint filed by the power of attorney holder of the complainant, before the commencement of the trial. Thus, the point to be looked into is whether the aforesaid aspect could be taken into account by this Court in this revision proceedings, to overturn the findings of the Courts below.”

Part – 2

Kannan v. Adisiva Enterprises (2026) also Requires Reconsideration for it Appears to Have Failed to Follow A.C. Narayanan v. State of Maharashtra

A.C. Narayanan v. State of Maharashtra (P Sathasivam, Ranjana Prakash Desai, Ranjan Gogoi), AIR 2014 SC 630, 2014 (11) SCC 790, was a decision rendered on a twin matter.

1. Criminal Appeal No. 73 of 2007 – A.C. Narayanan v. State of Maharashtra

This appeal is from the Bombay High Court decision. It pertained to the applications filed by the appellant against the order of issuance of process under Sections 138 and 142 of the Negotiable Instruments Act, 1881

2. Criminal Appeal No.1437 of 2013 – Shri G. Kamalakar v. Surana Securities Ltd.

This appeal is from the High Court of Andhra Pradesh. It pertained to the conviction of the accused under Section 138 of the N.I. Act. setting aside the dismissal of the complaint and acquittal of the accused by the Metropolitan Magistrate.

The verdict in A.C. Narayanan v. State of Maharashtra was rendered on a reference to a three Judge Bench to settle, mainly, the following dispute:

“Whether specific averments as to the knowledge of the Power of Attorney holder in the impugned transaction must be explicitly asserted in the complaint?”

It is answered in para 23 as under:

“Nevertheless, an explicit assertion as to the knowledge of the Power of Attorney holder about the transaction in question must be specified in the complaint.”

In the dictum in para 26 it is stated as under:

“(iii) It is required by the complainant to make specific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint and the power of attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case.”

In Kannan v. Adisiva Enterprises (2026), the Kerala High Court proceeded as under:

“6. …. There was no such prompt challenge in the case on hand. That apart, in the instant case, it is the original complainant himself who adduced evidence during the course trial of the case. Thus the ratio in Naresh Potteries and Narayanan A.C. (supra) have been laid at the initial stages of the respective cases, and not after the inaction of the accused paving the way for the original complainant to adduce evidence in the trial about the transactions which led to the offence.
7. It is true that, in the complaint filed before the Trial Court by the power of attorney holder of the complainant (wife of the proprietor of the complainant firm), it is not stated that she was having direct personal knowledge about the transactions which resulted in the commission of the crime alleged in the complaint. However, at the stage of trial, the complainant himself had appeared before the Trial Court and adduced evidence as PW1 about the transactions alleged in the complaint, which gave rise to the offence under Section 138 of the N.I Act. …”

The High Court failed to take notice of two significant aspects.

1. G. Kamalakar v. Surana Securities Ltd.—the second case in the twin matter decided by the Supreme Court along with A.C. Narayanan v. State of Maharashtra—arose from a judgment of the High Court convicting the accused under Section 138 of the Negotiable Instruments Act after reversing the Metropolitan Magistrate’s order dismissing the complaint and acquitting the accused.
2. The subsequent examination of the complainant himself as PW1 did not cure (could not have cured) the defect. The three-Judge Bench, while answering the reference in A.C. Narayanan v. State of Maharashtra—a proceeding undertaken to settle the legal position authoritatively—held in unequivocal terms that the complaint itself must contain an explicit averment that the power of attorney holder possessed direct personal knowledge of the transaction. In the absence of such an averment, the defect is foundational and is not cured by the complainant subsequently entering the witness box.

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Survey, Revenue Records, Mutation

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Specific Relief Act

Law on Damages

Easement

Stamp Act & Registration

Natural Justice/Disciplinary Action

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Suit Dismissed for Default: No Appeal Lies—Only Restoration under Order IX Rule 13 CPC; If the Restoration Petition is Dismissed for Default, it too can be Restored

Saji Koduvath, Advocate, Kottayam.

Legal Propositions in a Nutshell

1. Same principle as to restoration under Order IX Rule 13 CPC apply to Restoration under Order IX Rule 9 CPC.
2. Where a suit is dismissed for default, no appeal is provided under Order XLIII CPC. (See: Jaswant Singh v. Parkash Kaur, AIR 2017 SC 5275; 2018-12 SCC 249)
3. When an application under Order IX Rule 9 or Order IX Rule 13 CPC is itself dismissed for default, petition to restore it can be filed (other than an appeal under Order XLIII).
4. When such a (second round) restoration petition — akin to application under Order IX Rule 9 — is also dismissed for default, Appeal under Order XLIII Rule 1(c) can be filed (See: Jaswant Singh v. Parkash Kaur, AIR 2017 SC 5275; 2018-12 SCC 249).

Restoration Petition Dismissed for Default. Application to restore it is akin to O 9, r 9

The Supreme Court, in Jaswant Singh v. Parkash Kaur, AIR 2017 SC 5275; 2018-12 SCC 249, held as under:

“57. The application filed by Ranjit Singh, predecessor-in-interest of the appellants under Order 9, Rule 13 C.P.C. was dismissed on 19.10.2001 in default. When the appellants filed application dated 21.08.2002 to recall the order dated 19.10.2001, their application in the nature of proceeding seeking recall of an order dismissing the application, the miscellaneous proceedings dated 21.08.2002 were akin to application under Order 9, Rule 9 C.P.C. seeking recall of order dismissing their application under Order 9, Rule 13 C.P.C.. … Hence, against such order the appeal was clearly maintainable under Order 43, rule 1 (c) C.P.C.”

Referring Jaswant Singh v. Parkash Kaur : AIR 2017 SC 5275, it is held by the Kerala High Court in Sam Sabu v. The General President, Indian Pentecostal Church Of God (IPC), 2020-2 KHC 363; 2020-2 KLT(SN) 13 (R. Narayana Pisharadi, J.), as under:

“Dismissal of an application filed under Order IX Rule 13 of the Code for default is an order passed in miscellaneous proceedings and it is expressly included in the explanation provided to Section 141 of the Code. It follows that, Annexure-10 application filed by the defendants _{(Application for restoration of the application filed under Order IX Rule 13 which was dismissed in default)} is maintainable under Order IX Rule 9 of the Code.”

Suit Dismissed for Default, No Appeal: For it is Not Specifically Conferred

Jaswant Singh v. Parkash Kaur (A.K. Sikri, Ashok Bhushan, J.), AIR 2017 SC 5275; 2018-12 SCC 249, is the Authority on this matter.

The Supreme Court of India held in this case (Jaswant Singh v. Parkash Kaur) as under: Appeal is Not a Substantive Right. No Appeal Unless Appeal Specifically Conferred.

“58. There cannot be any dispute to the view taken by the different High Courts in various judgments as noticed above that an appeal is a substantive right and not a mere matter of procedure and unless the right to appeal is specifically conferred it cannot be inferred under Section 141 of the C.P.C.”

By Section 141 – Order IX is Made applicable to all Proceedings

In Jaswant Singh v. Parkash Kaur, AIR 2017 SC 5275; 2018-12 SCC 249, it is continued as under:

“58. ….. The present is not a case where we are reading the right of appeal from Section 141 CPC. Section 141 now expressly provides that Order 9 is applicable to all proceedings in civil jurisdiction. When Order 9 is made applicable to the proceedings in the nature of application seeking recall of the order dismissing the application under Order 9, Rule 13 C.P.C. the order passed by the civil court rejecting such application is clearly referable to Order 9, Rule 9 C.P.C. and an order which is clearly referable to Order 9, Rule 9 C.P.C. shall also be appealable by virtue of Order 43, Rule 1 (c) C.P.C.
Rejection of application for restoration which is referable to Order 9, we cannot refuse to treat an order rejecting application under Order 9, Rule 9 C.P.C.for the purposes of Order 43, Rule 1 (c) C.P.C.”

Second Application for Restoration of O IX r. 9 Application is Maintainable

The Supreme Court, in Jaswant Singh v. Parkash Kaur, AIR 2017 SC 5275; 2018-12 SCC 249, further continued as under:

“58. …. The Full Bench judgment of Madhya Pradesh High Court in so far as it answered question No.1 as framed in paragraph 1 of the judgment lays down the correct law. However, the view of the Full Bench that when application under Order IX Rule 9 C.P.C. for restoration of suit is rejected, the second application for restoration of the original application although falls under the purview of the Order IX Rule 9 C.P.C. read with Section 141, rejection of the application does not fall under Order XLIII Rule 1(c) C.P.C., to the above extent, the view of the Full Bench cannot be approved. When the second application as held by Full Bench falls under Order IX Rule 9 C.P.C., hence the right of appeal shall also accrue when such application is rejected. In view of the above discussion, we are of the considered opinion that the appeal filed by the appellants against order dated 23.12.2005 was clearly maintainable and the High Court erred in holding that such appeal was not maintainable.”

The Kerala High Court, following Jaswant Singh v. Parkash Kaur, AIR 2017 SC 5275, it is held in Latha Menon v. Ponnamma (Anil K.Narendran, P.G. Ajithkumar, JJ.), 2022-3 KLT 583, as under:

“The Apex Court in Jaswant Singh v. Parkash Kaur [2018-12 SCC 249] was concerned with the question, where an application for restoration of application under Order IX, Rule 13 of the Code is dismissed for non-appearance of the applicant, would not that order be amenable to appeal under Order XLIII, Rule 1(c) or 1(d). The Apex Court has considered the extent of applicability of Section 141 of the Code to the interlocutory applications. After referring to various decisions of the Apex Court as well as different High Courts including what has been held by this Court in Kallianikutty Amma v. State of Kerala [AIR 1974 Kerala 171] it was observed that the provisions of Section 141 of the Code could not be applied except to the procedural matters; it could not be invoked in cases where a substantive right is involved.”

Application under O IX, R 13 must be liberally construed

In G.P. Srivastava v. R.K. Raizada, (2000) 3 SCC 54, it was held that the words ‘was prevented by any sufficient cause from appearing’ in Order IX, Rule 13 CPC must be liberally construed to enable the court to do complete justice between the parties, particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order IX, Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case.

In Restoration, Sufficient Cause for Non-Appearance Material, Not conduct of Party

In Sam Sabu, v. The General President, Indian Pentecostal Church Of God (IPC), 2020-2 KHC 363; 2020-2 KLT(SN) 13 (R. Narayana Pisharadi, J.) held that in a restoration matter, past conduct of the defendants is not material. What is material to be considered is only whether the party has shown sufficient cause for non-appearance on the date of hearing of the application which was dismissed for default.

The Kerala High Court (Sathish Ninan, P. Krishna Kumar, JJ.) in Ambily M.M v. Santha, 2025 KER 60255, referring its earlier decision in Shivananda v. Susheela, 2021 (5) KLT 1189, held that the suit being one for partition, the bar of a suit under Order IX Rule 9 of CPC has no application, and that therefore another suit could always be filed for the relief. It is also pointed out that there is no point in driving the parties to another litigation.

Contours of ‘Bona Fide Requirement’ in Recovery Proceedings under Rent Control Enactments

Saji Koduvath, Advocate, Kottayam.

The Supreme Court of India examined the contours of ‘bona fide requirement’, in Recovery Proceedings under Rent Control Enactments, in Madan Mohan v. Thakar Dass, July 21, 2026, 2026 INSC 730 (Sanjay Karol, Augustine George Masih, JJ.), as under:

“6.1 First and foremost, the existence of the landlord-tenant relationship is essential. While it is true that a landlord has the right to enjoy his own property, the law does not grant its refuge to any arbitrary action, and so a landlord simply by virtue of that status, cannot show someone the door without the due process of law. It is here that bona fide requirement comes in. Bona fide translates to ‘in good faith’ which then predicates the requirement that may be faced by a landlord. A co-ordinate Bench in Shiv Sarup Gupta v. Mahesh Chand Gupta, (1999) 6 SCC 222, held thus:
- “13… “The degree of intensity contemplated by “requires” is much more higher than in mere desire. The phrase “required bona fide” is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the court. The judge of facts should place himself in the armchair of the landlord and then ask the question to himself — whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the court certainly to deny its judicial assistance to the landlord. Once the court is satisfied of the bona fides of the need of the landlord for the premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the court. The court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. An approach either too liberal or too conservative or pedantic must be guarded against.”
In Baldev Singh Bajwa v. Monish Saini, (2005) 12 SCC 778, ‘bona fide requirement’ was discussed in the following terms with reference to the earlier decisions in Bega Begum v. Abdul Ahad Khan, (1979) 1 SCC 273; Surjit Singh Kalra v. Union of India, (1991) 2 SCC 87,
- “14. The phrase “bona fide requirement” or “bona fide need” or “required reasonably in good faith” or “required”, occurs in almost all Rent Control Acts with the underlying legislative intent which has been considered and demonstrated innumerable times by various High Courts as also by this Court, some of which we would like to refer to. In Ram Dass v. Ishwar Chander [(1988) 3 SCC 131] it is said that the bona fide need should be genuine and honest, conceived in good faith. It was also indicated that the landlord’s desire for possession, however honest it might otherwise be, has inevitably a subjective element in it, and that desire, to become a “requirement” in law must have the objective element of a “need”, which can be decided only by taking all the relevant circumstances into consideration so that the protection afforded to a tenant is not rendered illusory or whittled down.”
  - (emphasis supplied)

7. As can be seen from the above, the Court has actively engaged with the question of ‘bona fide requirement’ right from the advent of Rent Control legislations. Across the country and across numerous statutes, this requirement is found and defined.
8. Whether or not, in a particular set of circumstances a landlord’s decision to ask his tenant to vacate, falls within ‘bona fide requirement’ is not something that can be determined by a mathematical formula. As such, let us examine the facts of the present case.
9. The primary reason why the High Court overturned the decision of the Courts below was that the landlady (Kamla Devi) had not come to the Court with clean hands and had concealed the availability of the third shop. It was observed that the said shop was used to store garbage. If the shop that is alleged to be an alternate accommodation was being used for storing waste material as has been held by both the RA and the AA, then that being the finding of fact, what occasioned the High Court to take a different view in civil revisional jurisdiction? The old saying is, ‘one man’s trash is another man’s treasure’. So, even if the statement is accepted as it is, we fail to see what is wrong with it. Let it be used as such. After all, right from beginning the ‘bona fide requirement’ was pleaded for by both Kamla Devi and Madan Mohan. It was concurrently held as such by the RA and the AA. The one that had hitherto been rented, will now be used as a shop to run a boutique.”

In Harrisons Malayalam Ltd. v. State of Kerala (2026:KER:19290), it is Held: No Findings on Title in the Previous Decision – Harrisons Malayalam Ltd. v. State of Kerala, 2018 (2) KLT 369

Taken from:

Harrisons Malayalam Ltd. v. State of Kerala (2026:KER:19290): Transfer of Registry can be Claimed only on Proper Application, with Supporting Documents

Saji Koduvath, Advocate, Kottayam.

Introduction

The High Court of Kerala, in Harrisons Malayalam Ltd. v. State of Kerala and others (Anil K. Narendran & S. Muralee Krishna, JJ.), discussed, inter alia, on 5th March 2026 (2026:KER:19290), the following with respect to the payment of Land Tax by the petitioner, Harrisons Malayalam Ltd.:

1. Whether the petitioner (Harrisons Malayalam Ltd.) has a legal right to seek a writ of mandamus to effect the Transfer of Registry, though it has not chosen to submit a proper application, with supporting documents, before the competent authority.
2. Whether the condition imposed in the Government Order – the land tax received from the petitioner, i.e., Harrisons Malayalam Ltd. and its assignees, shall be subject to the final decision in the civil suit proposed to be filed by the State, is sustainable in law.

Contention of the State

Land tax can be accepted only from the registered holder, as provided under the Kerala Land Tax Act, 1961 and Rules made thereunder.
The land is the absolute property of the Government.
The Government has taken steps to file civil suit against the petitioner.

Contention of Harrisons Malayalam Limited

Malayalam Plantations Ltd. has been shown as the holder of the Estate in the revenue records.
Unless and until the Government establishes its title in a competent civil court, the Government is not entitled to decline acceptance of land tax from the petitioner.
Right to property is a right guaranteed under Article 300A of the Constitution of India.
It includes the right to enjoy the property without being subjected to any restrictions other than any restrictions imposed by law.
Being the registered holder of the land, the petitioner is entitled to remit land tax
Harrisons Malayalam Ltd., is successor in title from Malayalam Plantations Ltd., is the land holder as per the provisions under the Kerala Land Tax Act.
Harrisons Malayalam Ltd., is successor in title from predecessor in title, i.e., Malayalam Plantations Ltd., is the land holder as per the provisions under the Kerala Land Tax Act

Were there findings on Title in the previous decision – 2018 (2) KLT 369?

In Harrisons Malayalam Ltd. v. State of Kerala and Others (2026:KER:19290), the petitioner (Harrisons Malayalam Ltd.) contended that there were findings on the title in the previous decision – Harrisons Malayalam Ltd. v. State of Kerala and Others, 2018 (2) KLT 369.

The High Court met the argument observing as under:

“14. On the aforesaid contention raised by the learned Senior Counsel for the petitioner, we notice the specific contention raised by the learned Advocate General, after referring to paragraphs 27, 98 and 141 of the decision of the Division Bench in Harrisons Malayalam Ltd. [2018 (2) KLT 369], that no such findings on title of the subject properties are there in the said decision. Relevant portion of paragraphs 27, 98 and 141 of the said decision are extracted hereunder;
- “27. ……….. The essential contention urged is on jurisdiction, or the absolute lack of it under the KLC Act to proceed against the properties which cannot be said to be either “Government land” or “puramboke land” as defined under the KLC Act. HML asserts their title and possession on the various properties as described in the Schedules. The Special Officer appointed under the KLC Act has absolutely no jurisdiction to proceedagainst lands owned by anyone other than the Government. The title is traced without interruption to about 100 years prior and has been obtained by the petitioner, a Company registered under the Companies Act, 1956 (for brevity “Companies Act”), by way of an indenture of 08.03.1923 bearing Deed No.1006 of 1923. The original of the said deed has been deposited before this Court and a copy has been produced as Ext.P22(b). The submissions revolve on this indenture; the efficacy of which is seriously put to test by the State and the party respondents. HML and its assignees having raised the ground of title, as had been accepted by the Government too, evident from the revenue records; the proceedings are ill motivated, for reason of it having originated on mere paper reports. Further the question of valid title having been raised, the Special Officer appointed under the KLC Act is divested of jurisdiction to further proceed.
- xxx xxx
- 98. ……….. We, however, make it clear that we are not called upon to examine the title of the lands, as asserted by HML. We would hence not be required to examine all of the title deeds or the purchase certificates, tax receipts, inter-parte decisions, etc. We remind ourselves that we are only looking at the question of jurisdiction under the KLC Act. If, prima facie, a bona fide dispute is discernible on title, then necessarily the parties would have to be relegated to the Civil Court; without ourselves venturing on an enquiry, which we find ourselves incompetent to embark upon, in a proceeding under Article 226.
- xxx xxx
- 141. …………Title cannot be adjudicated under the KLC Act intended only at eviction of unauthorized occupation. Title to establish it or to controvert it, has to be adjudicated before a civil court. Title we reiterate, in this contest, we have not found on the petitioners, which we are incompetent to do in the present proceedings. Title has to be found after adducing evidence in a properly initiated civil proceedings, if the State ventures so, to institute. There is no cause of action for the petitioners to approach the civil court to establish title under Section 20 of the KLC Act, the proceedings under the Act having been set aside by us.”
15. A reading of paragraph 141 of the decision would make it explicitly clear that the Division Bench did not decide the question of the title of the petitioner, since the High Court is incompetent to decide such an issue in a proceeding under Article 226 of the Constitution of India. Therefore, we find no force in the argument of the learned Senior Counsel for the petitioner that the facts relating to the ownership and possession of the plantations, including the estates which are subject matter of these writ petitions, were concluded by the Division Bench, in favour of the petitioner, in the decision in Harrisons Malayalam Ltd. [2018 (2) KLT 369] and the 1st respondent State has issued the Government order dated 06.06.2019 to overreach the said decision of the Division Bench.”

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Survey, Revenue Records, Mutation

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

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Book No. 2: A Handbook on Constitutional Issues

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Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Title Deed Lost and Certified Copy Unavailable: The Law Does Not Leave the Owner Without a Remedy

Taken from:

Right to Property: A Constitutional and Human Right That Cannot Be Taken Away on Mere Technical Grounds of Delay or the Fault of Public Authorities

Saji Koduvath, Advocate, Kottayam.

Other Secondary Evidence Admissible Even if Regn. Copy Destroyed

The Madras High Court recognised that where both the original title deed and the registration copy maintained by the registering authority have perished, the law does not fail merely because a certified copy cannot be produced. In Kottaichamy v. Kannan (25 April, 2008 in S.A. (MD) No. 478 of 2007) P.R. Shivakumar, J., it is held as under:

“When the original is shown to be destroyed or lost and the registration copy of the document available with the registering authority is also said to be destroyed, then it is quite justifiable that in such cases other form of secondary evidence also can be permitted in line with the provision found in Section 65 of Act.”

Non-availability of Certified Copy – Deterioration of Registration Record

In R. Parameswaran Pillai v. The Special Deputy Collector LA (NH) & Competent Authority (T. R. Ravi, J.), 2022 KER 74351, the writ petition is filed for a direction to the respondent to release the compensation amounts due to the petitioner as part of the land acquisition proceedings. The contention of the petitioner is that the partition deed No.2065 of the year 1090 M.E. registered before the Kazhakootam Sub-Registrar Office was irretrievably lost, and certified copy of the document was also not issued by the Sub-Registrar as the original of the same has deteriorated.

In Sree Narayana Dharma Sangham Trust v. Surendranath, 2022 (6) KHC 33 : 2022 (4) KLJ 158, the Kerala High Court (A. Badharudeen, J.) held that where the original document has become unavailable and the Sub-Registrar reports that the document has deteriorated to such an extent that no certified copy can be issued, the case falls within Section 65(c) of the Evidence Act and secondary evidence is admissible. It is held as under:

“Sub section (c) of Section 65 deals with the situation when the original has been destroyed or lost, or when the party offering evidence of its own contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time. In the given facts of this case, the petitioner attempted to get an authenticated copy of the settlement deed from the Sub Registrar concerned and the said attempt failed as it was reported that the document was torn akin to a situation as near to ‘destruction’ of the document mentioned in sub-section (c) of Section 65 and as such secondary evidence is permissible in the case of the document in question.”

Title May Be Established by Other Legally Admissible Evidence

The High Court of Kerala, in R. Parameswaran Pillai v. The Special Deputy Collector, 2022 KER 74351, directed the respondent officials to consider the claim of the petitioner based on the documents like the tax receipts, possession certificates, the extract from the Basic Tax Register, etc., in the absence of the title deed and the copy of the paper publication effected by the petitioner regarding the loss of the document. Although the Court did not expressly formulate a rule of evidence, its directions clearly indicate that, in the absence of the original title deed and its certified copy, the claimant’s title may be established by other legally admissible evidence such as the available revenue records and other contemporaneous materials.

Illustrative Modes of Proving Title in the Absence of the Title Deed

A title deed is evidence or a legal expression of ownership. Or, it represents ownership. But it does not represent unfailing ownership by itself. The ownership is a bundle of rights (possession, control, exclusion, enjoyment, and disposition). Therefore, depending upon the facts of the case, in the Absence of the Title Deed, ownership may be established by one or more of the following:

long and continuous possession;
origin of title of neighbouring or similarly situated lands;
enactments concerning the origin of title;
mutation and revenue records (including the Basic Tax Register and possession certificates);
land tax receipts;
admissions made by the opposite party;
recitals in subsequent deeds and connected documents;
reliable contemporaneous writings and public records;
admissible secondary evidence, including oral evidence of the contents of the lost document where legally permissible;
boundary descriptions contained in neighbouring title deeds or survey records; and
other surrounding circumstances relevant to the ownership and identity of the property.

Loss of the Title Deed Does Not Extinguish Ownership

A title deed is not the source of ownership; it is evidence of ownership. The right to property exists independently of the document by which it is ordinarily proved. That is, the title to immovable property does not reside in the title deed; the deed is only the best evidence of title. Accordingly, the accidental loss of the original deed, or the inability to obtain a certified copy owing to the deterioration or destruction of the registration records, does not extinguish ownership. Once the foundational facts regarding the loss or destruction of the document are satisfactorily established, the law permits proof by secondary and other legally admissible evidence. The owner is therefore not left remediless.

Constitutional Perspective

To hold otherwise would mean that the accidental destruction of a document—or the deterioration of public records maintained by the State—would itself extinguish proprietary rights. Such a consequence would be wholly inconsistent with the law of evidence, the law relating to declaration of title, and the constitutional protection of property under Article 300A.

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Read in this Cluster (Click on the Topic)

Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Survey, Revenue Records, Mutation

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Specific Relief Act

Law on Damages

Easement

Stamp Act & Registration

Natural Justice/Disciplinary Action

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General