D. Mohanram vs D. Karunakaran and C. Rajan

Honourable Mr. Justice G. Rajasuria

This Civil Revision Petition has been filed to get set aside the fair and decreetal order dated 07.06.2012 passed in I.A.No. 25 of 2011 in O.S. No. 231 of 2008 on the file of the learned District Munsif cum Judicial Magistrate, Vadipatti, Madurai. Avoiding discursive delineation, a summation and summarisation, of the relevant facts absolutely necessary and germane for the disposal of this Civil Revision Petition, would run thus:

(i) The learned Counsel for the revision petitioner placing reliance on the grounds of revision, would put forth and set forth his arguments to the effect that before the close of his side during trial as plaintiff, he did choose to file I.A.No. 25 of 2011 for recalling himself for marking some documents which were very relevant to the case of the plaintiff; however, the lower Court dismissed the same and being aggrieved by and dissatisfied with the same, this Civil Revision Petition is focussed.

(ii) The learned Counsel for the respondents would support the findings of the lower Court and the ultimate dismissal order passed by the lower Court on the ground that there were laches on the part of the plaintiff in filing such application; adding fuel to the fire, even the certified copies of those documents were not filed; no reason was found spelt out for the belated production of those documents; as such, the order of the lower Court need not be interfered with.

The point for consideration is as to whether one more opportunity has to be given to the revision petitioner/plaintiff to recall himself as P.W.1 and produce those documents and mark the same?

The Point:

Pithily and precisely, the contentions on the side of the revision petitioner/plaintiff is to the effect that the defendants themselves admitted in one of the registered documents referred to supra, the very plea of the plaintiff that there had been an oral partition emerged between the plaintiff and the defendants. No doubt, the plaintiff did not aver any specific reason for non-production of those documents earlier and also for the delay in filing such application. The plaintiff also did not produce the certified copies of those documents which he wanted to rely upon, however, now he produced before this Court the certified copies of those documents. If a strict view is taken, certainly the plaintiff can be found fault with for the laches in not producing those documents at the earliest point of time. Over and above that, he had not chosen to aver the reason for the delay. In the interest of audi alteram partem and in view of the well settled proposition of law that every trial is a voyage of discovery in which truth is the quest, I am of the view that one more opportunity could be given to the revision petitioner/plaintiff to recall himself as P.W.1 and produce those documents and mark the same subject to proof, admissibility and relevancy as per the dictum found exemplified in the decision of the Honourable Apex Court in Shalimar Chemical Works Limited vs. Surendra Oil and Dal Mills (Refineries and others) reported in (2010) 8 SCC 423. Certain excerpts from it would run thus:

10.... An objection to the admissibility of the document can be raised before such endorsement is made and the court is obliged to form its opinion on the question of admissibility and express the same on which opinion would depend, the document being endorsed, admitted or not admitted in evidence. In support of the submission he relied upon a decision of this Court in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple where it was observed as follows: (SCC p. 764, para 20)

.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 when 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. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court.

(Emphasis in original).

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On a careful consideration of the whole matter, we feel that serious mistakes were committed in the case at all stages. The trial court should not have "marked" as exhibits the xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants. It should have declined to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility. The appellant, therefore, had a legitimate grievance in appeal about the way the trial proceeded.

Accordingly, the point is answered.

Therefore, the order dated 07.06.2012 passed in I.A.No. 25 of 2011 in O.S.No. 231 of 2008 by the learned District Munsif cum Judicial Magistrate, Vadipatti, Madurai, is set aside and the revision petitioner/plaintiff is given one more opportunity as above, subject to the condition that the revision petitioner/plaintiff shall pay a cost of Rs. 1,000/- (Rupees One Thousand only) to the respondents/defendants within a period of one week from today, failing which this Civil Revision Petition shall stand automatically dismissed without any further reference to this Court. In the result, this Civil Revision Petition is disposed of as above. Consequently, the connected Miscellaneous Petition is closed. No costs.