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Kanhaiya Through Legal Representatives & Other v/s The Civil Judge Division & Others

    Civil Writ Petition No. 12247 of 2011, Civil Misc. Stay Application No. 11232 of 2011

    Decided On, 01 November 2011

    At, High Court of Rajasthan

    By, THE HONOURABLE MR. JUSTICE MAHESH BHAGWATI

    For the Petitioners:S.K. Gupta, Advocate. For the Respondents: ---------



Judgment Text

Mahesh Bhagwati, J.

1. Challenge in this writ petition is to the order dated 4.7.2011, whereby the learned Civil Judge (Sr. Division), Weir, District Bharatpur dismissed the application filed by the petitioners -plaintiffs under Section 90 of Evidence Act.

2. Having heard the learned counsel for the petitioners and carefully perused the

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relevant material on record including the impugned order, it is noticed that the plaintiff petitioners filed a suit for declaration, cancellation of sale deed and for permanent injunction against the defendants-respondents. During the pendency of the suit, the plaintiff-petitioners filed an application under Section 90 of the Evidence Act for drawing a presumption with regard to registered sale deed dated 28.1.1974, to have been duly executed, as it was stated to be more than 30 years old.

3. The learned trial court dismissed the application of the plaintiff-petitioners observing that the suit was filed by the plaintiff-petitioners in the year 1999 and the document, a presumption of which was to be drawn to have been duly executed, was of 28.1.1974. Hence, on the date of presentation of the suit, the document was not more than 30 years old, and as such the provisions of Section 90 of the Evidence Act were not applicable on the facts of the case in hand.

4. Learned counsel for the petitioners canvassed that the period of thirty years, as mentioned in Section 90 of the Evidence Act shall be counted not from the date on which the document is presented in the court, but from the date on which it has been tendered in evidence. In the instant case the evidence of the plaintiff-petitioners is yet to be recorded. The learned trial court arbitrarily rejected the application of the plaintiff-petitioners while counting the period of 30 years from the date when the document was presented in the court, hence the impugned order deserves to be set-aside and the writ petition filed by the plaintiff-petitioners needs to be allowed. In support of his arguments, he placed reliance on the judgment of this Court rendered in Daluram v. Rameshwar (S.B. Civil Second Appeal No. 3/1950) reported in RLW 1955 page 549

5. In the case of Daluram (supra), this Court allowed the appeal placing reliance on the judgment rendered in the case of Lodha Singh v. Mst. Hukam Devi, 75 IC p. 57, wherein it was held that the period of thirty years mentioned in Section 90 of the Evidence Act must be counted not from the date on which the document is put in the court, but from the date on which it is being tendered in evidence, its genuineness becomes the subject of proof.

6. Adverting to the facts of the instant case, it is noticed that the crucial time at which it is to be seen whether the document is more than thirty years old is the time when the document is asked to be tendered in evidence. In the case in hand, the plaintiff-petitioners are yet to be examined. The period of thirty years ought to have been counted on the date when the document was to be put in evidence.

7. In view of above, the learned trial court is found to have committed material illegality while dismissing the application of the plaintiff-petitioners and hence, the impugned order needs to be set-aside and the writ petition deserves to be allowed.

8. For the reasons stated above, the writ petition succeeds and the impugned order dated 4.7.2011 passed by the trial court stands set-aside.

9. Consequent upon the disposal of writ petition, the stay application, filed therewith, does not survive and that also stands disposed of.
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