Harjyoti Agarwalla vs Poonam Kejriwal and Others

Dipankar Datta, J.—The petitioner questions propriety of order dated July 26, 2011 passed by the learned trial Judge rejecting her application dated July 2, 2011.

The opposite party no. 1 (hereafter the plaintiff) instituted a suit for eviction and recovery of khas possession of the suit property (a flat), impleading the opposite parties 2 and 3 herein as the first two defendants and the petitioner as the third defendant. In course of recording of evidence of the plaintiff, two documents being letters dated April 17, 2008 and August 6, 2008 were tendered in evidence. The petitioner objected to admissibility of the said documents on the ground that the objected documents, being photostat copies, are not admissible in evidence. The same were marked exhibits 1 and 2 by the learned Judge noting the objection of the petitioner thereon. The application, which has been rejected by the order under challenge, was thereafter filed by the petitioner praying for an order that the objected documents marked exhibits 1 and 2 ought to be expunged from the records since the plaintiff had not produced the originals thereof.

Mr. Sen, learned advocate appearing for the petitioner contends that the learned Judge acted illegally in the exercise of his jurisdiction. According to him, gross injustice has been caused to the petitioner by receiving the objected documents in evidence and marking them as exhibits with objection despite the same being photostat copies, the originals whereof were not produced. It was contended by him, relying on the decisions of the Supreme Court reported in R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P. Temple and Another, and Shalimar Chemical Works Ltd. Vs. Surendra Oil and Dal Mills (Refineries) and Others, , and the decisions of the Bombay High Court reported in Saifuddin Saheblal Vazir Vs. Smt. Habjabai Mishra Patel and Another, and Shri Durgashankar S. Trivedi, Shri Ramshankar Magilal Trivedi, Shri Bhogilal Vishvanath Pandya, Shri Ganpatram Sunderji Joshi, Shri Vasu Shetty and Shri Maddu Kannappa Shetty Vs. Shri Babubhai Bhulabhai Parekh, ), that the objection regarding admissibility of the said documents ought to have been decided by the learned Judge before marking them as exhibits and decision on such objection could not have been deferred till final hearing of the suit by noting the objection of the petitioner thereon.

It was further contended that law is well-settled to the effect that photostat copy of a document is not secondary evidence within the meaning of Section 63 of the Evidence Act and in the absence of the originals, the learned Judge was unjustified in his approach in receiving the objected documents in evidence.

He, accordingly, prayed for orders to set aside the impugned order and to direct the objected documents to be expunged from the records of the suit.

Per contra, Mr. Srivastava, learned advocate representing the plaintiff contended that the learned Judge was perfectly justified in making the order he did. He invited the attention of the Court to the decision of the Supreme Court reported in (2001) 3 SCC 1 (Bipin Shantilal Panchal v. State of Gujarat and anr.) to contend that the learned Judge had followed the law laid down therein while admitting the objected documents and marking the same as exhibits with a note that an objection to its admissibility has indeed been raised by the petitioner, and by keeping such objection open, to be decided at the time of final hearing, he did not commit any illegality in this behalf.

In so far as rejection of the application dated July 2, 2011 filed by the petitioner is concerned, Mr. Srivastava contended that the learned Judge in the impugned order has recorded his satisfaction that the documents marked exhibits 1 and 2 are not photostat copies of original documents but are computer generated documents bearing the signature of the author in original and such finding being essentially a finding on a question of fact, it ought not to be disturbed by the Court in exercise of its revisional jurisdiction under Article 227 of the Constitution.

He, accordingly, prayed for dismissal of the revisional application.

I have heard learned advocates for the parties and considered the materials on record. Before proceeding to consider the necessity of rendering a decision on the contentious issue raised herein, it would be profitable to note the law laid down in the decisions of the Supreme Court referred to me by learned advocates for the parties.

In Venkatachala Gounder (supra), the learned Judges of the Supreme Court felt the need to make the correct position of law regarding admissibility of a document in evidence precise and, accordingly, proceeded to rule as follows:

Order 13, R. 4 of the C.P.C. provides for every document admitted in evidence in the suit being endorsed by or on behalf of the Court, which endorsement signed or initiated by the Judge amounts to admission of the document in evidence. An objection to the admissibility of the document should 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 as admitted or not admitted in evidence. In the latter case, the document may be returned by the Court to the person from whose custody it was produced.

The learned counsel for the defendant-respondent has relied on the The Roman Catholic Mission Vs. State of Madras and Another, 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. The later 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 later 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 superior Court.

In Shalimar Chemical Works (supra), the learned Judges of the Supreme Court were referred to the decision in Venkatachala Gounder (supra) by learned senior counsel appearing for the appellant. While allowing the appeal, the learned Judges held that serious mistakes had been committed in the case at all stages and that the trial Court should not have marked as exhibits the photostat copies of the certificate of registration of trade mark on the face of the objection raised by the defendants. It was observed that the trial Court should have declined to take the photostat copies on record as evidence and the plaintiff there ought not to have been asked to support its case by whatever means it proposed rather than leaving the issue of admissibility all those photostat copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility.

None of the aforesaid two decisions, however, has noticed the decision in Bipin Shantilal Panchal (supra), rendered by a bench of three learned Judges. The appellant was an under-trial prisoner, accused of committing offences under the Narcotic Drugs and Psychotropic Substances Act. On different occasions, the trial Judge had decided questions of admissibility of documents or other items of evidence, as and when objections thereto were raised and detailed orders were passed either upholding or overruling such objections. Such orders were questioned before the higher Courts resulting in delay in culmination of trial proceedings. The need for ensuring speedy trial of under-trial prisoners was emphasized. Ultimately, this is what the Supreme Court had said in paragraphs 13 to 16:

It is an archaic practice that during the evidence-collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fallout of the above practice is this: Suppose the trial court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or the revisional court, when the same question is recanvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial court. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or remoulded to give way for better substitutes which would help acceleration of trial proceedings.

When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.)

The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence-taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.

We, therefore, make the above as a procedure to be followed by the trial courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence.

It appears from the order of the learned Judge impugned herein that while marking the objected documents as exhibits 1 and 2 and noting the objection of the petitioner thereon, the decision in Bipin Shantilal Panchal (supra) was considered and applied by him overruling the objection raised on behalf of the petitioner that the law laid down therein would be applicable only to criminal trials and not to civil cases. Mr. Sen, did not repeat the contention before me but submitted that the views expressed by the Supreme Court in the later decisions cited by him ought to prevail being subsequent decisions and, therefore, the objected documents could not have been marked exhibits with objection and the objection ought to have been decided then and there without proceeding any further.

I consider it necessary to rule that the decision in Bipin Shantilal Panchal (supra), though rendered in proceedings arising out of a criminal trial, is as much applicable to civil proceedings as criminal trials. There is no good reason to come to the conclusion that the procedure directed to be followed by the trial Courts (paragraph 16 of the extract) would be restricted to the criminal Courts and not the civil Courts, for, there is nothing in the decision that makes such a distinction. On the contrary, the portion within brackets in paragraph 14 of the extract refers to a situation that ordinarily arises in civil proceedings and if civil Courts were not to follow the procedure laid down therein, the learned Judges would have made the legal position clear instead of leaving the position uncertain.

However, upon consideration of the decisions of the Supreme Court referred to above, which bind me equally, I am of the view that the divergence in opinion in respect of admissibility of a document in evidence though discernible therein, need not detain me too long having regard to the fact that the learned Judge while deciding the fate of the application dated July 2, 2011 has recorded a satisfaction that the documents marked exhibits 1 and 2 are original documents and not photostat copies, as alleged by the petitioner, and that evidentiary value thereof would be considered at the time of deciding the suit finally.

I may place on record that Mr. Srivastava, in course of his argument, submitted that the plaintiff has tendered the documents, marked exhibits 1 and 2, in evidence confident that the same are admissible in evidence and she is prepared to suffer any order if it is ultimately found that the same are inadmissible in evidence. In view of the fact that the plaintiff is prepared to take the risk, and the point taken by the petitioner regarding admissibility is open to be canvassed by her at later stages of the lis in view of the decision in Venkatachala Gounder (supra), it does not appeal to me to be proper and just, in the circumstances, to interfere with the order impugned.

That apart, since the learned Judge has recorded satisfaction that exhibits 1 and 2 are original documents and, therefore, admissible in evidence, it is not for the revisional Court to disturb such finding as if sitting in appeal over such finding. The objection that exhibits 1 and 2 are inadmissible in evidence has been raised by the petitioner at the appropriate time and even though they may be inadmissible but are considered by the trial Court to be admissible and the suit is decreed upon proof of its contents in a regular manner, nothing would prevent the petitioner to take the point in appeal that exhibits 1 and 2, being inadmissible in evidence, the same could not have formed the foundation of the judgment and decree and the learned Judge by decreeing the suit based thereon committed gross illegality. An issue that could be raised in appeal, if at all the occasion therefore arises, need not be decided by the revisional Court unless circumstances are such that a decision would be imperative for securing the ends of justice. I do not consider the present case to be an exceptional one where the issue that has arisen regarding admissibility of exhibits 1 and 2 calls for decision at this stage.

The revisional application stands dismissed reserving the right of the petitioner to raise the issue in future in appropriate proceedings, if at all the need therefore arises.

Photostat certified copy of this judgment and order may be furnished to the applicant at an early date.