Gyanti Devi Si Ors. vs Shanti Devi

Harish Tandon, J.—This revisional application is directed against an Order dated May 23, 2011 passed by learned Civil Judge (Junior Division). Third Court, Howrah in Title Suit No. 156 of 2007 by which an application u/s 151 of the CPC for expunging the exhibited documents marked on admission is rejected. Before dealing with the point involved in this revisional application, salient features relating to the instant case is required to be spelt out. The plaintiff/opposite party filed an eviction suit against the petitioners in respect of flat situated on the 5th Floor at Premises No. 26, Gopal Chandra Mukherjee Lane. District Howrah. It is a specific case made out by the plaintiff/opposite party in the plaint that the defendants/petitioners were permitted to use and occupy the suit premises. In spite of the revocation of such permission, the defendants/petitioners denied to hand over the possession of the suit premises.

By filing the written statement, it is contended that one Doman Shaw, the predecessor of the opposite parties was the sole owner of the said property and entered into a tripartite agreement with the plaintiff/opposite party for construction of six storied building at premises No. 26, Gopal Chandra Mukherjee Lane, Howrah. It is further stated that upon the death of the said owner, the opposite parties succeeded to the estate of the said deceased and cannot be regarded in permissive occupation.

The suit was, thereafter, posted at the peremptory board, the daughter of the plaintiff/opposite party deposed as P.W. 1 and filed affidavit as to examination-in-chief. The said affidavit as to examination-in-chief was subsequently tendered by the said witness along with certain documents which were marked exhibits.

According to the defendants/petitioners, at the time of receiving the documents for the purpose of exhibits, objection was raised but the said objections were not noted and/or recorded by the Trial judge.

Subsequently an application u/s 151 of the CPC is filed by the defendant/petitioner praying for expunging the documents marked as an exhibit on admission save and except Exhibit No. 4 to 4H. It is contended by the defendants/petitioners that the documents exhibited in the instant case were not filed along with the plaint. It Is further contended that at the time of tendering those documents, specific objection was raised relating to the admissibility of those documents. On May 19, 2011 it appears from the record that excepting the documents marked as Exhibit 4 to 4H all other documents are marked as exhibits on admission. In written objection to the said application, the plaintiff/opposite party states that at the time of marking the documents as exhibits specially the Exhibit. 1, the defendant/petitioner did not raise any objection therefore objection raised subsequently is not entertainable.

The Trial Court found that the Exhibit. 1 was marked exhibit after objection. Although in the list of documents, there is an error and/or discrepancy which manifest that the said exhibit. 1 is marked exhibit on admission. Regarding the inadmissibility of the documents including the exhibit. 1, the Court took note of a decision of the Supreme Court rendered in case of Bipin Shantilal Panchal v. State of Gujarat & Anr. reported in (2001) 3 SCC 1 where the three Judges bench of the Supreme Court held that the court should not unnecessarily drag the trial in allowing or rejecting the objection taken at the time of tendering the document in evidence but should tentatively marked the said document as exhibit, subject to the objection to be decided at the last stage of the final judgment. Assailing the said judgment, the instant revisional application is filed.

An interesting point has evolved as to whether the Civil Court should decide the objection as to the proof and admissibility of the document at the time when such document is tendered in evidence or should postpone, the same to be considered at the time of the argument after tentatively marking the document as exhibit subject to the objection.

Learned Advocates appearing for the respective parties have mainly addressed on such issue. Though there is some confusion as to whether the application filed by the defendants/petitioners are, in fact, rejected by the trial court or have postponed its consideration at the stage of an argument.

Mr. Biswajit Basu, the learned Advocate appearing for the petitioner, at the very outset, submits that the judgment rendered in case of Bipin Shantilal Punchal (supra) was in relation to a criminal matter which cannot apply in case of a civil proceedings/matters. Thus he would contend that the CPC is exhaustive and regulates the civil proceedings/suits and takes me to the different provisions of the Code of Civil Procedure.

According to him, Order 7 Rule 14 of the Code provides for production of the document in Court by the plaintiff when the plaint is presented and cannot be received in evidence if not produced with the plaint without the leave of the court. There is a corresponding similar provision with regard to the written statement under Order 8 Rule 1A of the Code. By taking me to Order 13 Rule 1 of the Code, he submits that the original documents shall be produced by the parties on or before the settlement of issues which the court shall receive provided, they are accompanied by the accurate list prepared in the prescribed form. By placing the provisions contained Order 18 Rule 4 of the Code, he vehemently submits that the parties should file the affidavit as to examination-in-chief upon supplying the copy thereof to the other side and the documents which are filed and relied upon by the said witness and filed along with the affidavit, the Court should consider the proof and admissibility of such document. He thus summed up his submissions by saying that the CPC provided the complete mechanism relating to tendering of the documents, consideration of proof and admissibility, and marking the same as exhibit. In support of his aforesaid contentions, he placed reliance upon a judgment of the Privy Council rendered in case of Gopal Das & Anr. v. Sri Thakurji & Ors. reported in AIR 1943 privy 83. Judgment of the Supreme Court in case of R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P. Temple and Another, , in case of Shalimar Chemical Works Ltd. Vs. Surendra Oil and Dal Mills (Refineries) and Others, In support of his contention that the medical certificate should not be admitted in evidence through the P.W. 1, reliance is placed upon a judgment of this case in case of Sris Chandra Nandy Vs. Sm. Annapurna Ray,

Per contra. Mr. Jiban Ratan Chatterjee, the learned Senior Advocate appearing for the plaintiff/opposite party submits that the defendants/ petitioners did not raise any objection at the time of receiving the documents in evidence excepting the exhibit Nos. 1, 4 to 4H. However, he contends that there was some erroneous recording in the list of exhibits relating to the exhibit. 1 which was, in fact, marked after objection and not on admission. By supporting the reasoning given by the Trial Court, he submits that the trial court has adopted the correct procedure as laid down in the three-bench judgment of the Apex Court in case of Bipin Shantilal Pachal (supra) and heavily placed reliance thereupon. However, he submits that the application filed by the defendants/petitioners was rejected by the Trial Court and the contention that the Trial Court has postponed its consideration relating to the objection regarding proof and admissibility of the exhibit, is not correct. Lastly, he contends that the prayer which is made in the application u/s 151 of the Code cannot be allowed as the defendants/petitioners pray for expunging the documents which are marked as exhibits on admission.

Having considered the respective submissions, it is manifest from the Trial Court''s order that the sole criteria for disposal of the said application u/s 151 of the Code is on the basis of the ratio laid down by the Apex Court in case of Bipin Shantilal Pachal (supra). On perusal of the impugned order it appears that the Trial Court after recording the error and/ or discrepancy as to marking the exhibit. 1 on admission, relied upon the judgment of the Supreme Court in case of Bipin Shanti Lal Pachal (supra) and disposed of the said application.

However, a new dimension is tried to be given to the matter by Mr. Chatterjee that the trial court rejected the said application and has not kept the objection raised by the petitioner to be considered at the time of an argument.

Therefore, before proceeding to deal with the point as indicated hereinbefore, it would be pertinent to decide whether the Trial Court rejected the said application or have postponed the same.

The prayer which Is made in the said application u/s 151 of the Code, no doubt relates to an expunging the documents marked exhibit on admission excepting the documents which are marked after objection. From the averments made in Paragraph 1 of the said application, it is stated that in spite of the specific objection as to admissibility of the documents the trial court has erroneously and illegally marked the said documents as exhibits on admission. However, the aforesaid contention is disputed by the plaintiff/opposite party in his written objection where he denied that any such objection was made at the time of admission of those documents in evidence.

The aforesaid statement of the plaintiff/opposite party is not acceptable for simple reason that if the entire document tendered by P.W. 1 was admitted in evidence, the court could not have marked exhibit. 4 to 4H after objection and also could not have recorded the apparent mistake in the list of exhibits relating to exhibit. 1. On bare look of the application filed by the defendants/ petitioners, one can say without hesitation that the defendants/petitioners never objected to the admission of the documents in evidence after recording an objection but what is tried to be objected is that the documents could not have been received in evidence on admission as the petitioner has objected at the time of marking the same as exhibits.

Therefore, the point as it emerges is, in effect, diluted in view of the aforesaid stand taken by the defendants/petitioners but it has a material bearing, so far as the civil suits/proceedings are concerned which are regulated by the Code of Civil Procedure.

There is no doubt to the proposition that the CPC regulates the civil proceedings initiated before the Civil Court. It is exhaustive and elaborate in dealing all conceptual procedural aspect and also providing effective remedies as well. Order 7 Rule 14(1) of the Code provides that the plaintiff suing or relying upon a document in his possession shall produce it along with the plaint by entering it into a list and shall deliver the same. The Sub-rule 3 thereof confers power upon the court to grant leave to produce document by the plaintiff which ought not to have been produced at the time of presentation of the plaint to be received in evidence at the hearing of the suit.

There is reciprocal and corresponding provision relating to the written statement as enshrined under Order 8 Rule 1A of the Code.

However, Order 11 Rule 12 of the Code entitles any party to the proceeding to apply to the court for an order directing the other party to make discovery on oath of the documents which are or have been in his possession or power relating to the matter in question. The sua motu power is also conferred upon the court relating to the production of a document upon oath under Order 11 Rule 14 of the Code.

Apart from the aforesaid provision relating to the production of the document under Order 11, it is obligatory and imperative on the parties to produce all documentary evidence in original where the copies have been filed along with the plaint or written statement on or before the settlement of issues under Order 13 Rule 1 of the Code. The Court at any stage of the suit may reject any document which it considers irrelevant or otherwise inadmissible after recording the reasons as contemplated under Order 13 Rule 3 of the Code. The endorsement on documents admitted in evidence shall be made on each of the documents under the seal and initial of the judge. The documents which are admitted shall form the part of the record but the documents which are not admitted in evidence shall be returned to the person producing the same. However, the admitted documents can also be received back by the party subject to the fulfillment of the provision contained under Order 13 Rule 9 of the Code.

Order 18 Rule 4 of the Code provides that the examination-in-chief of a witness shall be on affidavit and copies thereof shall be given to the other party. By inserting a proviso, therein, it is imperative that the documents which are filed and relies upon by the parties along with the affidavit shall be subject to the orders of the Court relating to the proof and admissibility thereof.

In view of the aforesaid legal provisions, the proof and admissibility of the document produced by the witness at the time of filing the affidavit as to examination-in-chief shall be admitted subject to the order of the Court.

Does this mean the court should postpone the objection as to admissibility or proof at the time of final stage of the suit in stead of deciding then and there.

The Privy Council in case of Bhagat Ram v. Kheta Ram reported in AIR 1929 Privy Council 110 held if the objection is not taken as to the admissibility of the document at the trial, the same cannot be taken subsequently.

The two judges bench of the Supreme Court in case of R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple & Anr. (supra) held that the objection as to the admissibility of the document should be raised as and when the evidence is tendered if the document is marked as an exhibit, such objection cannot be allowed to be raised, subsequently, as the party who is deprived to rely upon a document because of the determination of the Court at the final stage of the suit, shall not be in a possession to resort to the mode of proof in order to cure the defect in these words:

The learned counsel for the defendant-respondent has relied on Roman Catholic Mission v. State of Madras 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 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.

In most recent judgment delivered in case of Shalimar Chemical Works Ltd. (supra) the Supreme Court reiterated the aforesaid principle in paragraph 15 which reads:

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.

The aforesaid later judgment of the Supreme Court delivered by the two judges bench did not take into consideration the judgment rendered by the three judges bench in case of Bipin Shanti Pachal (supra) which runs counter to the ratio enunciated therein. The three judges bench in case of Bipin Shanti Pachal (supra) laid down that the court should not invest considerable time in deciding the objections raised by the party as to the mode of proof and/or admissibility of the document immediately but should postpone the same at the time of final stage of the Judgment after marking the said document tentatively after objection. The said three judges bench did not take into consideration the earlier three judges bench judgment of the supreme court which has been relied in case of R.V.E. Venkatachala Gounder (supra) where it has been held that if the objection is not made, the same cannot be considered subsequently.

There is a gulf of difference between a criminal proceeding and the civil proceeding although the mode of proof is same. In case of Bipin Shanti Pachal (supra) what has really swayed the mind of the Hon''ble judges is that to ensure the speedy trial where the accused is languishing in jail, the court should adopt a procedure of marking the document tentatively after objection and postpone the consideration at the final stage of the judgment. The Code of Criminal Procedure does not contain a provision like Order 7 Rule 14, Order 8 Rule 1A, Order 13 and/or Order 18 of the Code of Civil Procedure. Order 18 Rule 4 which envisaged that the proof and admissibility of the document shall be subjected to the orders of the Court. Therefore, if the objection as to the proof is sustained, the party may have taken further recourse relating to the proof so as to cure the defect for which such objection is sustained by the Court. If the said objection is considered at the time of final stage of the suit and is sustained by the Court, although the appellate Court Order 41 Rule 27 has power to adjudicate whether the trial court was justified in not admitting the said document in evidence or not but in such event has to remand the matter permitting the party to adduce evidence and invite the Trial Court to make a fresh adjudication taking into consideration the evidentially value of the said document.

It is a settled law that the decision of the court is in relation to the facts and circumstances of the case which it decides. The procedural law which regulates the proceeding be it a criminal or civil shall be the guiding factor and a judgment rendered contrary to the statute losses efficacy as a binding precedent. The subsequent judgment of the Supreme Court rendered in case of Shalimar Chemical Works Ltd. (supra) after taking into consideration the meaning and purport of Order 13 Rule 4 of the Code held that the objection as to the admissibility must be decided before the document is endorsed in Paragraph 10 which reads thus:

Mr. Rao submitted that the provision of Order 13 Rule 4 CPC provides for every document admitted in evidence in the suit being endorsed by or on behalf of the Court, and the endorsement signed or initialed by the Judge amounts to admission of the document in evidence. 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)

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.

The three judges bench of the Supreme Court in case of Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, while considering the efficacy in applicability of the CPC held:

Now a code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it.

Therefore, the subsequent three judges bench of the Supreme Court in case of Bipin Shanti Pachal (supra) did not take into consideration the earlier co-ordinate bench decisions where the court should adhere to the code of procedure which is inacted to facilitate justice and for its ends and any interpretation which would render to frustrate the same should be sufficiently guarded against.

This Court is not oblivious of the fact that certain objections relating to proof and admissibility may be considered at the time of final stage of the suit in stead of investing huge time in deciding the same at the time when it is raised. Equally there may be certain objections which if not decided at the lime of the objection would result not provide an opportunity to the party to cure the defects for which such objection is sustained.

To sum up, the court must decide the objection as to its proof and admissibility as enshrined under Order 18 Rule 4 of the Code either at the time of raising such objection or may postpone till final hearing considering the nature of the objection.

Reverting back to the instant case, the true spirit of an application filed by the defendants/petitioners is not relating to the postponement of an objection raised at the time of marking the document as an exhibit but relates to marking of certain documents on admission, erroneously or mistakenly which would be evident from the prayer made in the said application which reads thus:

In this circumstances, it is prayed that your honour may be pleased to expunge the documents allegedly exhibited ''on admission'' save and except exhibit No. 4 to 4H during the trial of P.W. 1 and pass other order/orders as to your honour may deem fit and proper.

The dispute in essence rest on whether the defendants/petitioners raised objection at the time of marking an exhibit relating to the documents other than the exhibits 4 to 4H or they did not. From the certified copy of deposition of the P.W. 1 annexed to this writ petition, it appears that the documents were marked exhibits on February 17, 2009 whereas an application u/s 151 has been filed on May 20, 2011. It is averred that such erroneous marking of the exhibited documents was detected on May 19, 2011. There is no explanation between the period from February 17, 2009 till May 19, 2011 When admittedly the trial is been carried on.

It is no doubt true, if there is any mistake in recording the happening in the order by the court, the party must approach the same Court without any delay before it fades from the memory of the learned Judge. Reliance can be made on a judgment of the Apex Court in case of State of Maharashtra Vs. Ramdas Shrinivas Nayak and Another, where it is held:

When we drew the attention of the learned Attorney General to the concession made before the High Court, Shri A.K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submission made by him in the High Court. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us Judicial decorum restrains us. Matters of Judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation". AIR 1926 136 (Privy Council) ). We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well-settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still, fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error (Per Lord Buckmaster in Madhusudan v. Chandrabati, AIR 1917 PC 30). That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making

(Emphasis Supplied)

The learned Judge, in my view, rightly recorded that he cannot decide whether the defendants/petitioners raised an objection at the time of receiving the documents in evidence. The events took place before the predecessor-in-office and if there is any mistake in recording by the learned judge, the petitioner should have Immediately approached the same presiding officer and points out such mistake but should not have waited for nearly more than two years and invites the successor-in-office to decide the said issue. Mr. Jiban Ratan Chatterjee to that extent is right in contending that the Court has in effect rejected the said application.

Factually this Court finds that the petitioner cannot succeed in the instant revisional application as the prayer made in section 151 of the Code cannot be granted by the successor-in-office.

The revisional application is therefore dismissed. However, there shall be no order as to costs.

Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.