Case: Mahasay Ganesh Prasad Ray &amp; Another Vs. Narendra Nath Sen &amp; Others

of reasoning in holding that they are not of such a nature and character as to compel the conclusion which the Subordinate Judge thought he was forced to come to. Exhibit 32 series as noticed by the High Court, consists of loose sheets of papers.They have not the probative force of a book of account regularly kept. Being old documents, naturally, the writer is not called and barring the fact that they were produced from the Receivers possession there is nothing to show their genuineness. Section 90, Evidence Act, does not help the appellants because this is not a case where the signature of a Particular person is in question or sought to be established.6. We do not propose to repeat the reasons given by the High Court to show why these documents are not of that. compelling nature as thought by the Subordinate Judge. They are all well summarized in the judgment of the High Court. In its judgment the High Court has also pointed out the circumstances under which these account sheets, contended to be of the year 1287, were produced and the way in which they came to be noticed in the Receivers possession. Bearing in mind these circumstances and the material fact that the important document is not convincingly proved to be of the year 1287 as the figure 8 appears to be torn, we are unable to consider this document as proved of the year 1287.7. The appellants relied on the account sheets of the year 1297 and the entries therein to support their case that these sheets contained entries of the birth of Indubala. From these sheets it was sought to be argued that they contain entries in respect of the birth of the only two daughters of Govind Ballab, namely Sabitri and Indubala, and therefore Binodini could not be his natural daughter. As pointed out by the High Court, however these account sheets of 1297 have the appearance of fresh ink and are unreliable. No argument could therefore be based on their genuineness.8. As regards the entries in the almanac, it is necessary only to point out, as has been done (by the High Court, that these are again loose sheets of papers with blanks left at different places. The writer is of course not available and therefore the weight which could be attached to documents which on the face of them are regularly kept cannot attach to these papers. The sheets and entries could be substituted or interpolated at different places, if one were so minded. Having regard to these defects therefore it is not possible to say that the entries have been made in the regular course of business and have the necessary probative value. In our opinion therefore the conclusion of the High Court is correct.9. Mr. Umrigar, following the argument of Mr. Chatterjee who argued the main points in the appeal, contended that there was a preliminary objection to the appeal being heard. He argued that after the Subordinate Judge passed the decree in favour of the appellants the respondents filed the appeal, without the necessary court-fees stamp. On the appellants objection the matter was discussed before the Registrar who held that ad valorem court-fee must be paid on the appeal. At that time the prayer in the memorandum of appeal was "The appeal be allowed and the plaintiffs suit be dismissed with costs throughout."10. Following this decision of the Registrar the present respondents prayed for amendment- of their" prayer by adding the following "except delivery of possession of schedules k, kha, ga, except lot No. 7 of the properties mentioned in the plaint." When this application came before the Court a Division Bench of the High Court Permitted the amendment at the appellants own risk. The matter then again came before the Registrar who while doubting the prudence of the respondents in making the amendment, held that as the memo stood the court-fee was properly paid on the footing that the decree under appeal was only a declaratory decree. When the present respondents appeal came for hearing before the High Court, the question of maintainability was argued as a preliminary objection and the High Court held that the objection was sound but allowed the present respondents (who were appellants there) to delete the amendment made by them and gave them time to pay the requisite court-fees.11. Mr. Umrigar argued that this order of the High Court was wrong, particularly. because it took away from the appellants their valuable right to plead the bar of limitation if this appeal was treated as filed on the day the requisite court-fees were paid in the High Court. In our opinion this argument has no substance. In the first place, the decree of the Subordinate Judge, as drafted, is only a declaratory decree and contains no order directing delivery of possession. It is true that in the judgment of the Subordinate Judge there are directions about delivery of possession but they do not appear to have been included in the decree as drawn up.12. Secondly, the power of the High Court to allow an amendment under S. 149, Civil procedure Code is clearly one under which the plea of the bar of limitation may be ignored. There are decisions at very- high authority taking that view. The contention therefore that by allowing the amendment the High Court took away the present appellants valuable right to plead the bar of limitation cannot be accepted. It was a matter of discretion for the High Court and the materials put before us indicate no reason to hold that the discretion was exercised so as to violate any recognised principles of law or that by granting leave to amend any gross injustice has been done. As pointed out by the High Court, the payment of court-fees is a matter primarily between the Government and the present respondents and that was the whole fight in respect of this contention. In our opinion therefore the preliminary objection fails.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]6. We do not propose to repeat the reasons given by the High Court to show why these documents are not of that. compelling nature as thought by the Subordinate Judge. They are all well summarized in the judgment of the High Court. In its judgment the High Court has also pointed out the circumstances under which these account sheets, contended to be of the year 1287, were produced and the way in which they came to be noticed in the Receivers possession. Bearing in mind these circumstances and the material fact that the important document is not convincingly proved to be of the year 1287 as the figure 8 appears to be torn, we are unable to consider this document as proved of the year 1287.7. The appellants relied on the account sheets of the year 1297 and the entries therein to support their case that these sheets contained entries of the birth of Indubala. From these sheets it was sought to be argued that they contain entries in respect of the birth of the only two daughters of Govind Ballab, namely Sabitri and Indubala, and therefore Binodini could not be his natural daughter. As pointed out by the High Court, however these account sheets of 1297 have the appearance of fresh ink and are unreliable. No argument could therefore be based on their genuineness.8. As regards the entries in the almanac, it is necessary only to point out, as has been done (by the High Court, that these are again loose sheets of papers with blanks left at different places. The writer is of course not available and therefore the weight which could be attached to documents which on the face of them are regularly kept cannot attach to these papers. The sheets and entries could be substituted or interpolated at different places, if one were so minded. Having regard to these defects therefore it is not possible to say that the entries have been made in the regular course of business and have the necessary probative value. In our opinion therefore the conclusion of the High Court isour opinion this argument has no substance. In the first place, the decree of the Subordinate Judge, as drafted, is only a declaratory decree and contains no order directing delivery of possession. It is true that in the judgment of the Subordinate Judge there are directions about delivery of possession but they do not appear to have been included in the decree as drawn up.12. Secondly, the power of the High Court to allow an amendment under S. 149, Civil procedure Code is clearly one under which the plea of the bar of limitation may be ignored. There are decisions at veryhigh authority taking that view. The contention therefore that by allowing the amendment the High Court took away the present appellants valuable right to plead the bar of limitation cannot be accepted. It was a matter of discretion for the High Court and the materials put before us indicate no reason to hold that the discretion was exercised so as to violate any recognised principles of law or that by granting leave to amend any gross injustice has been done. As pointed out by the High Court, the payment ofis a matter primarily between the Government and the present respondents and that was the whole fight in respect of this contention. In our opinion therefore the preliminary objection fails.