# Raghav Das Chela Mahant Mathura Das Mahant & Anr v. Kali Ram Das Chela Mahant Ganga Ram Das & Ors

- **Citation:** (2023) 3 ILRA 1125
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-14
- **Case number:** FAFO No. 1145 of 2016
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raghav-das-chela-mahant-mathura-das-mahant-anr-v-kali-ram-das-chela-mahant-49784
- **Pages:** 6

## Headnote

Civil Law - Civil Procedure Code, 1908-
Order 32, 41, Rule 15, 27, - Hindu Public
Religious
Institution
Prevention
from
Dissipation
of
Properties
Temporary
Powers Act, - Section 6, - Indian Evidence
Act, 1872 - Section - 114(e), 90, -
Limitation Act, 1963 - Section - 5 - Delay
Condonation
application
-
Admissibility
of
document - presumption of correctness -
photocopy of the order was presented before
the
court
below
along
with
the
delay
Condonation application - said document was
registered on the file as 35C/169C by learned
appellant court - Delay Condonation application
was allowed by the learned appellate court on
the foot of aforesaid document - Order passed
by the learned appellate court allowing delay
Condonation application has attained finality -
court finds that, once a challenge to a particular
document has been waived, the party cannot
resile from its conscious stand and assail the
same at belatedly in appeal - Held, after the
decision
of
application
under
Section
5
Limitation Act - Paper was considered by
learned predecessor at the time of decision of
application under section 5 Limitation Act for
Condonation of delay in filing the present appeal
- Court considered view that the Court below
committed illegality by completely ignoring of
provisions of law contained in order 32 Rule 15
of the Civil Procedure Code in commencing the
proceedings
and
passing
the
impugned
judgment and decree without appointing the
Guardian of the original defendant who was a
1126 INDIAN LAW REPORTS ALLAHABAD SERIES
person of sound mind at the time during the
pendency of the proceedings in original suit
before him - hence, no exception can be taken
to the reasoning or the analysis of the appellate
court in the impugned order - Appeal fails -
dismissed. (Para - 5, 6, 11, 12)

Appeal Dismissed. (E-11)

List of Cases cited:

## Text

3 All. Raghav Das Chela Mahant Mathura Das Mahant & Anr. Vs. Kali Ram Das Chela Mahant
 Ganga Ram Das & Ors.
1125

30. Let the applicant- Vipin be
released on bail in the aforesaid case crime
number, on furnishing a personal bond and
two sureties each in the like amount to the
satisfaction of the court below. The
following conditions be imposed in the
interest of justice:-

(i) The applicant will not tamper
with the evidence or influence any witness
during the trial.

(ii) The applicant will appear
before the trial court on the date fixed,
unless personal presence is exempted.

31. The learned trial court shall
ensure that the sureties demanded of the
applicant are commensurate with his
socioeconomic
status.
Heavy
sureties
which the applicant can not fulfill in view
of his socioeconomic constraints will
render the right of bail nugatory.

32. High Court Legal Services
Authority
shall
kindly
consider
the
payment of the approved remuneration to
Shri Shams Uz Zaman, Advocate (Adv.
Roll A/S0815/2012) who represented the
applicant as amicus curiae before this
Court.

33. A copy of this order be
communicated to the learned trial court as
well as District Legal Services Authority,
Shahjahanpur, by Registrar Compliance by
FAX.
----------

(2023) 3 ILRA 1125
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.02.2023

BEFORE

THE HON'BLE AJAY BHANOT, J.
FAFO No. 1145 of 2016

Raghav Das Chela Mahant Mathura Das
Mahant & Anr. ...Appellants
Versus
Kali Ram Das Chela Mahant Ganga Ram
Das & Ors. ...Respondents

Counsel for the Appellants:
Sri Ram Kishore Pandey, Sri R.K. Pandey,
Sri Sachin Ohja

Counsel for the Respondents:
Sri Gulrez Khan, Sri G. Khan, Sri Javed
Husain Khan, Sri Pradeep Chandra Tripathi,
Sri W.H. Khan (Sr. Advocate)

Civil Law - Civil Procedure Code, 1908-
Order 32, 41, Rule 15, 27, - Hindu Public
Religious
Institution
Prevention
from
Dissipation
of
Properties
Temporary
Powers Act, - Section 6, - Indian Evidence
Act, 1872 - Section - 114(e), 90, -
Limitation Act, 1963 - Section - 5 - Delay
Condonation
application
-
Admissibility
of
document - presumption of correctness -
photocopy of the order was presented before
the
court
below
along
with
the
delay
Condonation application - said document was
registered on the file as 35C/169C by learned
appellant court - Delay Condonation application
was allowed by the learned appellate court on
the foot of aforesaid document - Order passed
by the learned appellate court allowing delay
Condonation application has attained finality -
court finds that, once a challenge to a particular
document has been waived, the party cannot
resile from its conscious stand and assail the
same at belatedly in appeal - Held, after the
decision
of
application
under
Section
5
Limitation Act - Paper was considered by
learned predecessor at the time of decision of
application under section 5 Limitation Act for
Condonation of delay in filing the present appeal
- Court considered view that the Court below
committed illegality by completely ignoring of
provisions of law contained in order 32 Rule 15
of the Civil Procedure Code in commencing the
proceedings
and
passing
the
impugned
judgment and decree without appointing the
Guardian of the original defendant who was a
1126 INDIAN LAW REPORTS ALLAHABAD SERIES
person of sound mind at the time during the
pendency of the proceedings in original suit
before him - hence, no exception can be taken
to the reasoning or the analysis of the appellate
court in the impugned order - Appeal fails -
dismissed. (Para - 5, 6, 11, 12)

Appeal Dismissed. (E-11)

List of Cases cited:

1. R.V.E. Venkatachala Gounder Vs Arulmigu
Viswesarasami and V.P. Temple, (2003) 8 SCC 752,

2. The Roman Catholic Mission Vs The St. of
Madras & anr., AIR 1966 SC 1457,

3. E.S.I. Corp Vs Jagdish Prasad (FAFO No.
103/2001 decided on Dated 23.03.2022),

4. Jagannath Ji/Jagdish Ji Virajman Mandir Katra
& anr. Vs Mahant Vijai Ram Das Chela Ganga
Ram Das & anr., Writ-C No.36104 of 2013, order
dated 01.05.2013,

5. Iqbal Basith & ors. Vs N. Subbalakshmi &
ors., (2021) 2 SCC 718,

6. Lakhi Baruah Vs Padma Kanta Kalita, (1996) 8
SCC 357.

(Delivered by Hon'ble Ajay Bhanot, J.)

1. Heard Shri Ram Kishore Pandey,
learned counsel assisted by Shri Sachin
Ojha, learned counsel for the appellants and
Shri W.H.Khan, learned Senior Counsel
assisted by Shri Gulrez Khan, learned
counsel for the respondents.

2. The following issues which arise
for consideration in this appeal is that :

i). Whether the document (order
of
Assistant
Commissioner
dated
04.10.1978) was admissible in evidence?

ii) Whether on account of the
failure of the appellant to object to
admissibility of the said document at the
time of its presentation before the learned
court below precludes the appellants from
raising such objections at a later stage in
the proceedings?

3. The photocopy of the order dated
04.10.1978 was presented before the court
along
with
the
delay
condonation
application. The document was registered
as 35C/169C by the learned appellant court.
The delay condonation application was
allowed by the learned appellate court on
the foot of the aforesaid document. The
order passed by the learned appellate court
dated 01.05.2013 allowing the delay
condonation
application
has
attained
finality.
The
appellants
assailed
the
aforesaid order dated 01.05.2013 by
instituting the writ petition registered as
Writ-C No.36104 of 2013 (Jagannath
Ji/Jagdish Ji Virajman Mandir Katra and
another v. Mahant Vijai Ram Das Chela
Ganga Ram Das and another). The
following order was passed by this Court in
the said writ petition:

"Sri R.K.Pandey, learned counsel
for the petitioners states that the writ
petition has become infructuous.

The writ petition is dismissed as
such."

4. It is evident that the appellants did
not press the challenge to the order
allowing delay condonation application.
The appellant waived their rights to
challenge all documents on which reliance
was placed in the said order. The delay
condonation application was part of the
appeal court proceedings.

5. Once a challenge to a particular
document has been waived, the party
3 All. Raghav Das Chela Mahant Mathura Das Mahant & Anr. Vs. Kali Ram Das Chela Mahant
 Ganga Ram Das & Ors.
1127
cannot resile from its conscious stand and
assail the said document belatedly in
appeal. The rational for insisting upon the
parties to object to the document at the
earliest stage is not far to seek. Such a
challenge is consistent with rules of fair
play, and enables the opposing side to
rectify curable defects or lead evidence to
support the document.

6. The narrative will now be fortified
by the authorities in point. Considering the
belated challenge to the admissibility of a
document, the Supreme Court in R.V.E.
Venkatachala
Gounder
v.
Arulmigu
Viswesarasami and V.P. Temple reported
at (2003) 8 SCC 752 held thus:

"20. The learned counsel for the
defendant-respondent has relied on The
Roman Catholic Mission Vs. The State of
Madras & Anr. AIR 1966 SC 1457 in
support of his submission that a document
not admissible in evidence, though brought
on record, has to be excluded from
consideration. We do not have any dispute
with the proposition of law so laid down in
the abovesaid case. However, the present
one is a case which calls for the correct
position of law being made precise.
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."

7. This Court in E.S.I. Corp. v.
Jagdish Prasad, reiterated the unexceptional
requirement of law to take out an objection
about the admissibility of a document in the
first instant and at the first available
opportunity. In Jagdish Prasad (supra) held
thus:

"9. This Court is of opinion that
an
objection
about
admissibility
of
secondary evidence must be taken before
the Court of first instance, where the
secondary
evidence
is
filed
without
foundation. If that objection is not taken
before the Court, where the evidence is
filed on behalf of a party, it cannot be later
on urged in appeal.

15. In view of this position of the
law, there is no doubt that unless an
objection
about
the
admissibility
of
evidence is taken in the Court of first
instance, where the evidence is led, it
cannot be raised in appeal for the first
time."

8. The law set its face against a
challenge
to
the
admissibility
of
a
document when the party failed to raise an
objection at the earliest or permitted the
court to proceed on the foot of such
document in Iqbal Basith and others v.
1128 INDIAN LAW REPORTS ALLAHABAD SERIES
N.Subbalakshmi and others, reported at
(2021) 2 SCC 718, the Supreme Court in
Iqbal Basith (supra) held thus:

"13.
Both
the
courts
then
proceeded to consider the title of the
appellants to decide lawful possession. The
respondents had themselves produced a
certified copy of Ex.1 dated 07.09.1946.
The appellants produced photocopies of all
other resolutions, government orders and
sale deed in favour of their vendor O.A.
Majid Khan by the Municipality. The
failure to produce the originals or certified
copies of other documents was properly
explained as being untraceable after the
death of the brother of P.W.1 who looked
after property matters. The attempt to
procure
certified
copies
from
the
municipality was also unsuccessful as they
were informed that the original files were
not traceable. The photocopies were
marked as exhibits without objection. The
respondents
never
questioned
the
genuineness of the same. Despite the
aforesaid, and the fact that these documents
were more than 30 years old, were
produced from the proper custody of the
appellants along with an explanation for
non production of the originals, they were
rejected without any valid reason holding
that there could be no presumption that
documents executed by a public authority
had been issued in proper exercise of
statutory powers. This finding in our
opinion is clearly perverse in view of
Section 114(e) of the Indian Evidence Act
1872, which provides that there shall be a
presumption that all official acts have been
regularly performed. The onus lies on the
person who disputes the same to prove
otherwise."

9. Similarly, an old public document
also attracts the presumption of correctness
which is relatable to Section 90 of the
Evidence Act. The Supreme court in Lakhi
Baruah v. Padma Kanta Kalita, reported at
(1996) 8 SCC 357 upon considering the
challenge to an old public document held
thus:

"14. It will be appropriate to refer
to Section 90 of the Evidence Act, 1872
which is set out hereunder:

90. Presumption as to documents
thirty years old.? Where any document,
purporting or proved to be thirty years old,
is produced from any custody which the
Court in the particular case considers
proper, the Court may presume that the
signature and every other part of such
document, which purports to be in the
handwriting of any particular person, is in
that person?s handwriting, and, in the case
of a document executed or attested, that it
was duly executed and attested by the
persons by whom it purports to be executed
and attested.

15. Section 90 of the Evidence
Act, 1872 is founded on necessity and
convenience
because
it
is
extremely
difficult and sometimes not possible to lead
evidence to prove handwriting, signature or
execution of old documents after lapse of
thirty years. In order to obviate such
difficulties or improbabilities to prove
execution of an old document, Section 90
has been incorporated in the Evidence Act,
1872 which does away with the strict rule
of proof of private documents. Presumption
of genuineness may be raised if the
documents in question is produced from
proper custody. It is, however, the
discretion of the court to accept the
presumption flowing from Section 90.
There is, however, no manner of doubt that
judicial discretion under Section 90 should
3 All. Raghav Das Chela Mahant Mathura Das Mahant & Anr. Vs. Kali Ram Das Chela Mahant
 Ganga Ram Das & Ors.
1129
not be exercised arbitrarily and not being
informed by reasons."

10. In this case the offending
document dated 04.10.1978 was in the
nature of a public document having been
issued by a statutory authority upon
enquiry. The document being an old one
and having been produced by credible
person
attracts
the
presumption
of
correctness as laid down in Lakhi Baruah
(supra).

11. The learned appellate court dwelt
at
length
on
the
objection
to
the
admissibility of the said document and held
as under:

"Point for determination number
three:-

Learned
counsel
for
the
respondent has referred to order of the
Assistant Commissioner Jhansi Division
dated October 4, 1978, passed by him in
inquiry under section 6 of the Hindu Public
Religious Institution (Prevention from
Dissipation
of
Properties
(Temporary
Powers) Act, 1962. Copy of whic his on
file as 35C/169C. Perusal of this order
shows that there was a dispute between the
original plaintiff and original defendant
regarding the management of the properties
of the same deity and inquiry was done by
the then Assistant Commissioner of Jhansi
Division, the original plaintiff, had objected
to
the
appointment
of
the
original
defendant as Shebait of the temple as he
was not fit for this job on various grounds.
An inquiry was conducted by the Assistant
Commissioner and during this inquiry, it
was found by him and was held by him that
the original defendant, who appeared
before the impugned inquiry, was not a
person of sound mind and hence he was not
able to manage the properties of the temple.
He, thus rejected the claim of original
defendant and the original plaintiff as well
and appointed a receiver to look after the
affairs of and management of the temple
and its properties. This order became final
between the parties.

Learned
counsel
for
the
respondent has raised preliminary objection
regarding
the
maintainability,
rather
admissibility of copy of this order on the
ground that since it was filed during the
time of hearing of application under
Section 5 Limitation Act, filed for
condoning the delay in finding the present
appeal and was not filed are admitted by
the Court under Order 41 Rule 27 Civil
Procedure Code, hence it cannot be looked
into also that it was photocopy of a
certified copy, I am unable to accept this
argument because after the decision of
application under Section 5 Limitation Act,
the papers and file became a part and parcel
of the present appeal and also that when
this paper was considered by my learned
predecessor at the time of decision of
application under section 5 Limitation Act
for condonation of delay in filing the
present appeal, no such objection regarding
photocopy was raised and the order
condoning delay also shows that this point,
and finding of the Assistant Commissioner
in this order was the main ground for
correlation of delay.

Hence it is established that since
the ex parte judgment under attack in the
present appeal was passed on August 20,
1979, whereas the order of the Assistant
Commissioner was passed on October 4,
1978 in the above noted proceedings in
which the original plaintiff was a party,
hence this finding was known to the
original plaintiff during the pendency of the
1130 INDIAN LAW REPORTS ALLAHABAD SERIES
original suit number 469 of 1975 that the
original defendant was person of unsound
mind doing the proceedings in that original
suit. The record of the lower court file also
shows that no steps were taken by the
original
plaintiff
for
appointment
of
guardian ad litem of the insane original
defendant and the proceedings were done
by the court below without appointing such
a guardian. When the original defendant
became insane during the proceedings, all
the powers of attorney, if any, executed by
him lost its legal significance.

On
the
basis
of
above
discussion, I am of the considered view
that the Court below committed illegality
by completely ignoring of provisions of
law contained in order 32 Rule 15 of the
Civil Procedure Code in commencing the
proceedings and passing the impugned
judgment and decree without appointing
the Guardian of the original defendant
who was a person of sound mind at the
time
during
the
pendency
of
the
proceedings in original suit before him.
The point for determination number three
is answered accordingly."

12. No exception can be taken to the
reasoning or the analysis of the learned
appellate court in the impugned order. The
impugned order is liable to be affirmed and
the appeal fails.

13. The instant appeal is dismissed.
----------
(2023) 3 ILRA 1130
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.12.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
FAFO No. 2691 of 2004

The New India Assurance Co. Ltd.
 ...Appellant
Versus
Smt. Guddi @ Sarojni & Anr.
 ...Respondents

Counsel for the Appellant:
Sri Ashok Kumar Srivastava, Sri Sayed Ali
Murtaza

Counsel for the Respondents:
Sri Sanjay Kumar

Civil Law - The Workmen's Compensation
Act, 1923 - Section 30, - Motor Vehicles
Act, 1988, Section - 167 - Appeal - insurance
company Challenged the Award - Accident -
deceased was employed as cleaner on a insured
vehicle and dies during course of employment -
maintainability of claim petition - just because
another vehicle is involved in the accident will
the
claim
petition
before
Workman
Compensation
Commissioner
be
not
maintainable - said question raised by insurance
company is answered by the legislation itself
under section 167 of MV Act, - count finds that,
Commissioner cannot be said to have gone
beyond his jurisdiction - substantial question of
law - held, all the substantial question of law
framed in the appeal are questions of facts and
the finding of the Commissioner on the said
issues are not perverse - High Court cannot
enter into the arena of facts unless they are
proved to be perverse - therefore, this appeal
fails and is dismissed. (Para -6, 11, 12, 13)

Appeal Dismissed. (E-11)

List of Cases cited:

1. C. Manjammu Vs Divisional Manager, New
India Assurance Comp. Ltd. (2022 ACJ 2661),

2.
North East Karnataka Road
Transport
Corporation Vs Smt. Sujata ( Civil Appeal No.
7470/2009 Decided on Dt. 02.11.2018),

3. ESIC Vs S. Prasad (FAFO No. 1070/1993
decided on Dt. 26.10.2017),