Case Note & Summary
The petitioner, Sushilkumar Mandanlal Ganediwal, was the original defendant no.1 in a civil suit for declaration and possession filed in the Court of Civil Judge, Senior Division, Amravati. Respondent no.4, Ghanshyam Babulal Sahu, was added as defendant no.7 but the suit abated against him. Respondent no.4 filed a counter claim in the suit, of which the petitioner claimed to have no intimation or knowledge. Consequently, the petitioner failed to file a written statement to the counter claim. The trial court allowed the counter claim and passed a decree against the co-defendants, including the petitioner. The petitioner came to know about the decree on 21.11.2009 and on 28.11.2009 filed an application under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure, 1908 (CPC) to set aside the ex parte decree, along with an application for condonation of delay. The petitioner led evidence and was cross-examined. The trial court dismissed the application, holding that the bailiff's report on the summons showed proper service on the petitioner. The petitioner challenged this order in the High Court. The key legal issue was whether the bailiff's report on a summons is a public document under Section 74 of the Indian Evidence Act, 1872, and whether a certified copy thereof is admissible under Section 77 without further proof. The High Court held that the bailiff's report is indeed a public document as it records the acts of a public officer in the discharge of official duty. However, the court also noted that the trial court had not given the petitioner an opportunity to rebut the contents of the bailiff's report. Therefore, the High Court set aside the trial court's order and remanded the matter for fresh consideration, directing the trial court to allow the petitioner to cross-examine the bailiff or lead evidence to challenge the report. The court emphasized that while the report is a public document, its evidentiary value can still be contested.
Headnote
A) Evidence Law - Public Documents - Section 74 Indian Evidence Act, 1872 - Bailiff's Report on Summons - The court examined whether a bailiff's report on a summons issued by a court is a public document under Section 74 of the Indian Evidence Act, 1872. The court held that the bailiff's report is a public document as it is a record of the acts of a public officer (the bailiff) made in the discharge of his official duty. Consequently, a certified copy of such report is admissible in evidence under Section 77 of the Act without further proof of its contents. (Paras 2, 6-8) B) Civil Procedure - Setting Aside Ex Parte Decree - Order 9 Rule 13 CPC - Condonation of Delay - The petitioner sought to set aside an ex parte decree passed on a counter claim, claiming lack of knowledge. The trial court dismissed the application on the ground that the bailiff's report showed proper service. The High Court held that the trial court erred in relying on the bailiff's report without giving the petitioner an opportunity to rebut it, as the report was a public document but its contents could still be challenged. The matter was remanded for fresh consideration. (Paras 3-5, 9-10)
Issue of Consideration
Whether the report of bailiff on a summons issued by a Court could be said to be a public document under Section 74 of the Indian Evidence Act, 1872 and consequently placing certified copy of the same would amount to proof of contents thereof under Section 77 of the said Act.
Final Decision
The High Court allowed the writ petition, set aside the order of the trial court, and remanded the matter for fresh consideration. The trial court was directed to allow the petitioner to cross-examine the bailiff or lead evidence to challenge the contents of the bailiff's report.
Law Points
- Bailiff's report on summons is a public document under Section 74 of the Indian Evidence Act
- 1872
- Certified copy of bailiff's report is admissible under Section 77 of the Indian Evidence Act
- 1872 without further proof
