IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.: 204 of 1998. Reserved on: 24.10.2008. Decided on: 06.11.2008. Shri Daulat Ram and Others. … … Appellants. Versus Shri Gian Singh and Others. … … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Appellants: Mr. Bhupender Gupta, Senior Advocate with Mr. Neeraj Gupta, Advocate. For Respondent No. 1: Mr. Avneesh Bhardwaj, Advocate vice Mr. Ajay Kumar, Advocate. Rajiv Sharma, Judge: This regular second appeal is directed against the judgment and decree passed by the learned Additional District Judge, Shimla in civil Appeal No.65-S/13 of 1994 dated 30.3.1998. Brief facts necessary for the adjudication of this regular second appeal are that the plaintiff/respondent (hereinafter referred to as the plaintiff for convenience sake) filed a civil suit in the Court of learned Sub Judge (II), Rohru for declaration to the effect that he was son of Shri Piashu son of Shri Nesru and consequent to that he was entitled to get Whether reporters of local papers may be allowed to see the judgment? No. - 2 - his name entered in the register of birth and death of Notified Area Committee, Rohru. Shri Piashu did not contest the suit though he appeared as PW-5 before the trial Court. The Notified Area Committee, Rohru and respondents No.2 to 7 arrayed in the original suit contested the suit. The learned trial Court dismissed the suit on 31.3.1994. The plaintiff preferred an appeal before the learned Additional District Judge, Shimla on 2.5.1994 assailing the judgment and decree passed by the learned trial Court on 31.3.1994. The learned Additional District Judge, Shimla accepted the appeal vide judgment and decree dated 30.3.1998. This regular second appeal has been filed against the judgment and decree dated 30.3.1998 passed by the learned Additional District Judge, Shimla. At the time of admission of this regular second appeal on 3.8.1998, the substantial questions of law were not framed. However, vide order dated 23.10.2008, this regular second appeal was deemed to have been admitted on the following substantial questions of law:- 1. Whether the relationship between the plaintiff and defendant No.1 to be that of father and son could be established on account of the pleadings and on account of the evidence which were in conformity with Sections 50 and 60 of the Evidence Act? 2. Whether the lower Appellate Court has committed grave procedural illegality in putting reliance on Marks ‘X’ and ‘Y’, the affidavits which were not proved in accordance with law, does not the judgment and decree of the learned lower Appellate court suffer from inherent defect and stands vitiated? Mr. Bhupender Gupta, the learned Senior Advocate has strenuously argued that the judgment and decree passed by the learned Additional District Judge, Shimla is not sustainable in the eyes of law. He - 3 - then contended that the plaintiff has failed to prove that he was son of Shri Piashu on the basis of evidence led by the parties. He lastly contended that the learned Additional District Judge has misread the evidence and has taken into consideration the evidence which is not admissible under the Evidence Act, 1872. Mr. Avneesh Bhardwaj appearing vice Mr. Ajay Kumar has supported the judgment and decree passed by the learned Additional District Judge, dated 30.3.1998. I have heard the learned counsel for the parties and perused the entire record carefully. Since both the substantial questions of law are interconnected, they are taken up together for discussion for convenience sake. The plaintiff has appeared as PW-1. He has deposed that his mother gave birth to him in her parental house since she was unmarried at the time of his birth. He further deposed that his mother Smt. Bisu and Piashu had sworn affidavits marks ‘X’ and ‘Y’ respectively to the effect that he was born to them. He then deposed that Piashu had filed an application Ex.P-2 before the Sub Divisional Magistrate, Rohru for making necessary entries regarding his birth in the records of Notified Area Committee, Rohru. The same was rejected vide Ex.P-1. PW-2 and PW-3 have supported PW-1. PW-4, Rajinder Singh, Pradhan, Gram Panchayat, Seema had stated that Piashu had come to him and requested him to record the name of the plaintiff in Panchayat records as his son. Smt. Bisu was also called by him to the Gram Panchayat, however, she pleaded that the entries regarding the parentage of plaintiff be allowed to remain in the Panchayat record in her own name. He had deposed that the plaintiff is son of Shri Piashu. Piashu had appeared as PW-5. He has deposed that the plaintiff is his son. - 4 - DW-1, Daulat Ram has deposed that he is son of Shri Piashu. He then deposed that his mother is wife of Shri Piashu. He further deposed that his father has contracted only one marriage. He further deposed that there is no relationship of his father with Bisu. It will be apt to take note at this stage that the defendant No.1 Shri Piashu in original suit was proceeded ex-parte, however, he has appeared as PW-5 before the learned trial Court. The case set up by the plaintiff was that he is son of Smt. Bisu. However, Smt. Bisu was neither added as party nor she has been cited as witness. PW-4 Shri Rajinder Singh, as noticed above, has deposed that the mother has opposed the entry to be made in favour of Shri Piashu in the birth register. The application filed by Shri Piashu, Ex.P-2 was rejected by the Sub Divisional Magistrate, Rohru vide Ex.P-1. The learned Additional District Judge has strongly relied upon the affidavits sworn by Shri Piashu and Smt. Bisu. These affidavits are not admissible as evidence under Sections 1, 4 and 17 of the Indian Evidence Act, 1872. The learned Single Judge in Messrs. Shamsunder Rajkumar, a Firm dealing in Oil, Cakes, etc., Calcutta v. Messrs. Bharat Oil Mills, Nagpur, AIR 1964 Bombay 38 has held that the affidavits cannot be used as evidence under Evidence Act but can be so used under Order 19 provided Court passes an order as required by Order 19 Rule 1. The learned Single Judge has held as under:- “What evidence means and includes, is described in section 3 of the Indian Evidence Act, but affidavits are not included within that description. On the contrary, affidavits have been expressly excluded by section 1 of the Indian Evidence Act from the applicability of that Act. That means that affidavits cannot be used as evidence under any of the provisions of the Indian - 5 - Evidence Act. Affidavits can however, be used as evidence, only under Order 19, of the Civil Procedure Code. In accordance with Order 19, Rule 1, of the Civil Procedure Code, the Court has, for sufficient reasons, to pass an order that any particular fact or facts may be proved by affidavit. That would mean that affidavit evidence cannot be entertained unless the Court passes an order, for sufficient reasons, that any particular fact or facts may be proved by affidavits. While passing an order under Order 19, Rule 1, to call for evidence on affidavits, it is necessary to consider compliance with the proviso to Rule 1 and with the requirements of R.2, under Or. 19, as the circumstances of each case may require. I would also like to point out the decision in Kanhaiyalal v. Meghraj, ILR (1954) Nag 603 : (AIR 1954 Nag 260) wherein it was held that in cases where affidavits are filed in support of applications and are received by the Court, the order receiving the affidavit is tantamount to passing an order under Order 19, Rule 1, of the Civil Procedure Code and complies with the law. When an affidavit is filed, the Court official receiving it ought to see that it is properly drawn up and verified as per Order 19, Rule 3, of the Civil Procedure Code and the instructions in Chapter XXIII, Civil Manual, Volume I. If it is not properly drawn up or verified, it ought not to be received and the parties should be required to file a proper affidavit. A judge ought not to act upon an affidavit which is not properly drawn up and verified in accordance with the requirements explained in the rulings cited supra.” Similarly, a Division Bench of Calcutta High Court in M/s Parekh Brothers v. Kartick Chandra Saha and others, AIR 1968 Cal. 532 has held that the affidavits per se do not become evidence. Their Lordships have held as under:- - 6 - “Mr. Banerjee contended that the appellant should not be allowed to take the plea that the appellant had only one land lord in view of the fact that in its application under S. 17(1) of the said Act the defendant had asked for the permission of the Court to pay rent in favour of all the three plaintiffs. This application which had been made before the Rent Controller upon an affidavit was not tendered as evidence in the trial Court. Mr. Ghosh argued that the application in question was not a part of the records of this case and cannot, therefore, be relied upon. He contended that if the respondents had sought to rely on this document his client could have easily explained the document. It would be unjust, according to him, to rely on a document which was never produced as evidence at the time of the trial and which the appellant had no opportunity to explain. Mr. Banerjee strenuously argued that since this was an affidavit and since the affidavit had been made in connection with the proceedings in this suit, it was not necessary to formally tender this affidavit as evidence and that we should treat the affidavit as evidence. This contention of Mr. Banerjee is not correct. Section 1 of the Evidence Act provides that the Act applies to all judicial proceedings in or before any court ‘but not to affidavit presented to any court or officer’. Affidavits are not even included in the definition of evidence in S.4 of the Evidence Act. Therefore, affidavits cannot be used as evidence under any of the provisions of the Indian Evidence Act. Affidavits can be used as evidence only under Order 19 or the Civil Procedure Code. See Firm Shamsunder Rajkumar v. Bharat Oil Mills, AIR 1964 Bom 38. Section 3 of the Indian Evidence Act provides that subject to certain conditions and limitations the court may at any time order any fact to be proved by affidavit. The conditions and limitations to this power are to be found - 7 - in O. 19 of the Code of Civil Procedure. In Dominion of India v. Rupchand, AIR 1953 Nag 169 in a suit against the railways for damages, the plaintiff sought to rely on an affidavit of the District Commercial Inspector, G.I.P. Railway made by him in answer to the interrogatories. This was, however, dfisallowed; it was held that the affidavit did not ipso facto become evidence unless tendered. See also Marneedi Satyam v. Venkataswami, AIR 1949 Mad 689 at p. 690 and Kamakshya Prosad Dalal v. Emperor, AIR 1939 Cal 657 at p. 658. In all these cases, it is clearly established that an affidavit per se does not become evidence in the suits but that it could become evidence only by consent of the party or where it is specially authorised by a particular provision of law. In the present case therefore the statements contained in the affidavit made by the appellant under S. 17 of the said Act can not be looked into. Such statements cannot become evidence automatically because the affidavit has neither been proved nor tendered.” The learned first appellate Court has wrongly relied on these affidavits while coming to the conclusion that the plaintiff was son of Shri Piashu. The first appellate Court has also relied upon the statements of PW-2, PW-3 and PW-4 while accepting the appeal. PW-2 has stated that he has heard about the plaintiff being son of defendant Piashu and Smt. Bisu from the villagers. It was only hear say evidence. PW-3 had deposed that he used to learn the tailoring work from Shri Piashu and on one occasion he (Piashu) had given ration to him at the time of delivery of Smt. Bisu and he took this ration to her. PW-4 is the Pradhan, Gram Panchayat, Seema. He has deposed that plaintiff is son of defendant Piashu. Now the Court has to consider whether the statements of PWs-2 to 3 fall within the ambit of Section 50 and 60 of the Evidence Act, 1872 or - 8 - not. The scope and applicability of Sections 50 and 60 has been indicated by their Lordship of the Hon’ble Supreme Court in Dolgobinda Paricha v. Nimai Charan Misra and others, AIR 1959 SC 914 as under:- “We proceed to consider the second question first. The Evidence Act states that the expression "facts in issue" means and includes any fact from which either by itself or in connection with other facts the existence, non-existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessarily follow; "evidence" means and includes (1) all statements which the Court permits or requires to be made before it by witnesses in relation to matters of fact under enquiry; and (2) all documents produced for the inspection of the Court. It further states that one fact is said to be relevant to another when the one is connected with the other in any one of the ways referred to in the provisions of the Evidence Act relating to the relevancy of facts. Section 5 of the Evidence Act lays down that evidence may be given in any suit or proceeding of the existence or non-existence of every, fact in issue and of such other facts as are declared to be relevant and of no others. It is in the context of these provisions of the Evidence Act that we have to consider S. 50 which occurs in Chapter II, headed "Of the Relevancy of Facts". Section 50, in so far as it is. relevant for our purpose, is in these terms : "Section 50. When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact". - 9 - On a plain reading of the section it is quite clear that it deals with relevancy of a particular fact. It states in effect that when the Court has to form an opinion as to the relationship of one person to another the opinion expressed by conduct as to the existence of such relationship of any person who has special means of knowledge on the subject of that relationship is a relevant fact. The two illustrations appended to the section clearly bring out the true scope and effect of the section. It appears to us that the essential requirements of the section are - (1) there must be a case where the Court has to form an opinion as to the relationship of one person to another; (2) in such a case, the opinion expressed by conduct as to the existence of such relationship is a relevant fact; (3) but the person whose opinion expressed by conduct is relevant must be a person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship; in other words, the person must fulfil the condition laid down in the latter part of the section. If the person fulfils that condition, then what is relevant is his opinion expressed by conduct. Opinion means something more than mere retailing of gossip or of hearsay; it means judgment or belief, that is, a belief or a conviction resulting from what one thinks on a particular question. Now, the "belief" or conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or opinion. What the section says is that such conduct or outward behaviour as evidence of the opinion held is relevant & may, therefore, be proved. We are of the view that the true scope and effect of section 50 of the Evidence Act has been correctly and succinctly put in the following observations made in Chandu Lal Agarwala v. Khalilar Rahman, ILR (1942) 2 Cal 299 at p. 309 : (AIR 1943 Cal 76 at p. 80). - 10 - ''It is only 'opinion' is expressed by conduct which is made relevant. This is how the conduct comes in. The offered item of evidence is 'the conduct', but what is made admissible in evidence is the opinion, the opinion as expressed by such conduct. The offered item of evidence thus only moves the Court to an intermediate decision : its immediate effect is only to move the Court to see if this conduct establishes any 'opinion' of the person, whose conduct is in evidence, as to the relationship in question. In order to enable the Court to infer 'the opinion', the conduct must be of a tenor which cannot well be supposed to have been willed without the inner existence of the 'opinion'. When the conduct is of such a tenor, the Court only gets to a relevant piece of evidence, namely, 'the opinion of a person'. It still remains for the Court to weigh such evidence and come to its own opinion as to the 'factum probandum'- as to the relationship in question." We also accept as correct the view that S. 50 does not make evidence of mere general reputation (without conduct) admissible as proof of relationship : 'Lakshmi Reddi v. Venkata Reddi, AIR 1937 PC 201. It is necessary to state here that how the conduct or external behaviour which expresses the opinion of a person coming within the meaning of S. 50 is to be proved is not stated in the section. The section merely says that such opinion is a relevant fact on the subject of relationship of one person to another in a case where the Court has to form an opinion as to that relationship. Part II of the Evidence Act is headed "On Proof". Chapter III thereof contains a fascicule of sections relating to facts which need not be proved. Then there is - 11 - Chapter IV dealing with oral evidence and in it occurs S. 60 which says inter alia : "Section 60. Oral evidence must, in all cases whatever, be direct; that is to say- if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds." If we remember that the offered item of evidence under S. 50 is conduct in the sense explained above, then there is no difficulty in holding that such conduct or outward behaviour must be proved in the manner laid down in S. 60; if the conduct relates to some thing which can be seen, it must be proved by the person who saw it; if it is something which can be heard, then it must be proved by the person who heard it; and so on. The conduct must be of the person who fulfils the essential conditions of S. 50, and it must be proved in the manner laid down in the provisions relating to proof. It appears to us that that portion of S. 60 which provides that the person who holds an opinion must be called to prove his opinion does not necessarily delimit the scope of S. 50 in the sense that opinion expressed by conduct must be proved only by the person whose conduct expresses the opinion. Conduct, as an external - 12 - perceptible fact, may be proved either by the testimony of the person himself whose opinion is evidence under S. 50 or by some other person acquainted with the facts which express such opinion, and as the testimony must relate to external facts which constitute conduct and is given by persons personally acquainted with such facts, the testimony is in each case direct within the meaning of S. 60. This, in our opinion, is the true inter-relation between S. 50 and S. 60 of the Evidence Act. In Queen Empress v. Subbarayan, ILR 9 Mad 9 at p. 11, Hutchins J., said : "That proof of the opinion, as expressed by conduct, may be given, seems to imply that the person himself is not to be called to state his own opinion, but that, when he is dead or cannot be called, his conduct may be proved by others. The section appears to us to afford an exceptional way of proving a relationship, but by no means to prevent any person from stating a fact of which he or she has special means of knowledge." While we agree that S. 50 affords an exceptional way of proving a relationship and by no means prevents any person from stating a fact of which he or she has special means of knowledge, we do not agree with Hutchins J., when he says that the section seems to imply that the person whose opinion is a relevant fact cannot be called to state his own opinion as expressed by his conduct and that his conduct may be proved by others only when he is dead or cannot be called. We do not think that S. 50 puts any such limitation.” In view of the definitive law laid down by their Lordships of the Hon’ble Supreme Court, the statements of PW-2, PW-3 and PW-4 cannot be relied upon to establish the relationship of plaintiff with Piashu under Sections 50 and 60 of the Evidence Act, 1872. The plaintiff has not - 13 - added Smt. Bisu as party respondent though she was a necessary party. Moreover, Smt. Bisu has not appeared as witness before the trial Court. Consequently, the Court is bound to draw adverse inference against the plaintiff for neither adding Smt. Bisu as party nor citing her as witness. Accordingly, in view of the observations made hereinabove, the regular second appeal is accepted. The judgment and decree passed by the learned Additional District Judge, Shimla, dated 30.3.1998 is set aside and the judgment and decree passed by the learned Sub Judge (II), Rohru dated 31.3.1994 is restored. No costs. November 6, 2008. (Rajiv Sharma) (sck). Judge.