Jagannath Prasad Kori vs Shailendra Kumar Mishra & others

This petition has been filed under Article 227 of the Constitution of India by the petitioner/plaintiff against the order dated 12.5.2016 which is

actually a note appended by the trial Court to the cross examination of defendant witness No.2 in Civil Suit No.60-A/2013 by the 7th Civil Judge

Class-II, Sagar whereby a particular question regarding the plaint map has been denied.

In brief, the facts of the case are that the petitioner/plaintiff has preferred a civil suit for declaration and permanent injunction to the effect that he

be declared the owner of the land bearing Survey No.159/2, 159/3 admeasuring 1800 sq. ft. situated at Patwari Halka No.11, Makronia Buzurg, Tahsil

and District Sagar and also to declare the sale deed dated 3.11.2011 as null and void to the extent of the suit property.

Admittedly, in the aforesaid suit the defendants’ evidence is being recorded and during the cross examination of defendant witness No.2, a

question was put to him regarding the map filed along with the plaint, which was refused to be asked by the learned Judge of the trial Court on the

ground that the same is not relevant, as the map itself has not been issued by the competent officer and no construction has been carried out by the

said witness also.

Learned counsel for the petitioner has vehemently argued before this Court and has submitted that the impugned order is liable to be set aside on

the ground that the question which was put to the aforesaid witness was not prejudicial to his interest and was very much a relevant question. In

support of his contention learned counsel for the petitioner has also relied upon the decision rendered by the Hon’ble Apex Court in the case of

Union of India Vs. TR Varma, reported in AIR 1957 SC 882. The relevant para 10 of the said judgement reads as under:-

“10. Now, it is no doubt true that the evidence of the respondent and his witnesses was not taken in the mode prescribed in the Evident Act; but that Act has no

application to enquiries conducted by tribunals, even though they may be judicial in character. The law requires that such tribunals should observe rules of natural

justice in the conduct of the enquiry, and if they do so, their decision is not liable to be impeached on the ground that the procedure followed was not in accordance

with that, which obtains in a court of law. Stating it broadly and without intending it to be exhaustive, it may be observed that rules of natural justice require that a

party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that

he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being

given an opportunity of explaining them. If these rules are satisfied, the enquiry is not open to attack on the ground that the procedure laid down in the Evident Act

for taking evidence was not strictly followed. Vide the recent decision of this Court in New Prakash Transport Co. v. New Suwarna Transport Co. where this question

is discussed.â€​

Learned counsel for the petitioner has also relied upon the decision rendered by the Hon’ble Apex Court in the case of Kishore Kirtilal Mehta

and others Vs. Lilavati Kirtilal Mehta Medical Trust and others, reported in (2007) 10 SCC 21. The relevant paras 13 and 14 of the said judgment read

as under:-

“13. By and large, which part of the evidence is to be discarded as being outside the pleadings is something that the court considers when it discuses the

evidence. There cannot also be any doubt that no amount of evidence can be looked into on a plea never put forward. (See Siddik Mahomed Shah v. Saran).

Therefore, at this stage, if the operation of those two orders are not stayed, it would mean that the examination of the witnesses will cover only that portion of the

plea admitted to be put forward by Defendants 11 to 13 or in the plaint, and that would cause inconvenience to the trial which has been directed to be expedited by

this Court. Merely because some more or not strictly necessary questions are also asked either in cross-examination or in chief-examination, that cannot also

prejudice the contesting defendants since they can always plead either that a part of the evidence has to be discarded as not being covered by the pleadings in the

case, or that it is irrelevant.

We do not think that it is necessary at this stage to shut out any evidence. We clarify that what part of the pleadings and what part of the evidence have to be

discarded, will have to be considered by the court in the light of the order that may be passed by the High Court and if that part of the evidence is covered by the

pleadings that are directed to be struck out then, obviously, that part of the evidence will have to be ignored. So will be the fate of the evidence that might be

tendered which is not covered by the pleadings in the plaint. Obviously, the question whether Defendants 11, 12 and 13 can enlarge the scope of the suit will also

have to be considered both by the High Court while dealing with the issue and by the trial court when it deals with the suit finally. Suffice it to say that in order only

to ensure that there is no possibility of a truncated trial, we stay the operation of the orders striking out portions of the written statement of Defendants 11, 12 and 13

and portions of the affidavit tendered in chief-examination by the plaintiff. We make it clear that what part of the written statement of Defendant No. 11 and of

Defendants 12 and 13 and what part of the evidence are to be ignored, are matters that will depend upon the decision to be rendered by the High Court in the matters

pending before it and to be considered by the trial court when it finally disposes of the suit and if its order were to be upheld by the High Court, to be consistent with

the order it has already passed.â€​

Learned counsel for the respondents on the hand other has opposed the prayer of the petitioner and has submitted that no illegality has been

committed by the learned Judge of the trial Court in rejecting the petitioner’s question as being irrelevant.

Heard the learned counsel for the parties and perused the record.

So far as the practice of deciding any objection which has come up before the trial Court during the course of cross examination of any of the

witnesses, the Hon’ble Apex Court in the case of Bipin Shantilal Panchal v. State of Gujarat, (2001) 3 SCC 1 has held as under:-

“12. As pointed out earlier, on different occasions the trial Judge has chosen to decide questions of admissibility of documents or other items of evidence, as and

when objections thereto were raised and then detailed orders were passed either upholding or overruling such objections. The worse part is that after passing the

orders the trial court waited for days and weeks for the parties concerned to go before the higher courts for the purpose of challenging such interlocutory orders.

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.â€​

(emphasis supplied)

On perusal of the aforesaid enunciation of the Supreme Court, it is apparent that the learned Judge of the trial Court has erred in deciding the

aforesaid objection raised by the counsel appearing for the defendants during the course of cross examination of defendant No.2. In the considered

opinion of this Court, as has already been laid down by the Supreme Court, the right approach to deal with such objections was to allow the question

which was being asked by the counsel appearing for the plaintiff in the course of cross examination of the defendant No.2 and to decide the

admissibility of the same at the end of trial while finally deciding the matter on merits. But, apparently, the learned Judge of the trial Court, instead of

adopting the procedure as laid down by the Supreme Court in the aforesaid case, oblivious of the said decision, has gone on to decide the objection

unnecessarily causing further delay in the final disposal of the suit.

In view of the aforesaid discussion, the impugned order dated 12.5.2016 cannot be sustained in the eyes of law and is hereby set aside and the

learned Judge of the trial Court is directed to proceed with the suit and allow the counsel for the petitioner to cross examine the defendant’s

witness on the point of plaint map as well.

So far as the objection which has been raised by the defendants’ counsel, the same may be taken note of but should be decided only at the

time of appreciating the evidence while deciding the matter finally.

With the aforesaid observations petition stands allowed. No cost.