Smt. Ahamedi Begum vs Noor Md. Ansari @ Doma

Indrajit Chatterjee, J. - This is an application under Article 227 of the Constitution of India wherein the order dated 8.6.2015 passed by the learned Civil Judge, Jr. Div., 6th Court, Alipore, South 24 Paraganas in connection with ejectment suit no. 392 of 2009 has been assailed before this court.

In the impugned order the learned trial court was pleased not to mark one rent receipt as exhibit but preferred to tackle the situation by marking the same as "X" for identification considering the objection raised by the defendant/opposite party as per provisions of Section 151 of the Civil Procedure Code (hereinafter called the said Code).

Now, the question before this court is as to whether this document ought to have been marked as exhibit or not. I am told that this counterfoil of the rent receipt dated 10.1.2000 shows acceptance of rent to the tune of Rs. 1500/- for the moth of October 19, 1999 to December, 1999 and was signed by one Sankar Lal Saha, the previous owner. It may be noted that it is the specific case of the defendant/opposite party that he is not the tenant in respect of the suit property but he is the owner in respect of the same by acquiring title adversely against the owner.

Both parties are represented.

On behalf of the petitioner it is submitted by Mr. Bhattacharya, learned advocate for the petitioner that in view of the decision of the Hon''ble Apex Court as reported in (2003) 3 SCC 1 [Bipin Santilal Panchal v. State of Gujarat], the procedure adopted by the learned trial court is contrary to the aforesaid decision of the Hon''ble Apex Court wherein the Hon''ble Apex Court specifically directed that such a situation may be tackled after marking the said document noting the objection of the other side as that will minimise the time of the learned trial court as well as the court of revision or appeal who may also consider such document when that is needed. In this regard, he relied upon paragraph 10 to 15 of the said judgment.

He further contended that it is true that the opposite party has every right to challenge the veracity of that document and that the learned trial court has every right to decide later at the time of delivery of the judgment as to whether such admissibility of that document was rightly done or not. According to him, the order passed by the learned trial court is to be set aside and the learned trial court be directed to mark the said document as exhibit on behalf of the plaintiff after noting objection of the defendant.

On the other hand, Mr. Ghosh, learned advocate appearing on behalf of the opposite party drew my attention to Section 67 of the Indian Evidence Act to show that actually the impugned document ought to have been proved by its maker i.e. Sankar Lal Saha and unless the same person faces the dock the said document cannot be marked as exhibit. In this context, he cited one decision of the Hon''ble Apex Court as reported in (2010) 4 SCC 491 [LICI & anr. v. Rampal Singh Bisen] wherein it was held by the Hon''ble Apex Court in paragraph 26 that mere admission of document in evidence does not amount to its proof. It was further held that mere marking of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law.

Mr. Ghosh further supplemented his argument by saying that the maker ought to have faced the dock to prove the said document and the learned trial court perfectly judged that such document cannot be marked as exhibit unless it is proved by its maker.

I have gone through the materials on record and after taking into consideration the facts and circumstances of the case and the submissions made by both the parties, I am to answer whether at this stage the said counterfoil of the rent receipt can be marked as exhibit after noting objection of the defendant.

On reading and re-reading the judgment of the Hon''ble Apex Court as reported in Bipin Santilal Panchal (supra), a three Judge Bench decision, I hereby direct the learned trial court to ease out the matter by marking the said document as exhibit after noting necessary objection therein while marking so. It may be noted that mere marking of a document will not prove the said document and as such the burden will squarely lie on the party claiming on that document that it was duly executed. I reiterate that mere marking of the said document as exhibit does not dispense with its proof, which is required to be done in accordance with law.

In the light of the observations made above, the impugned order is hereby set aside.

The learned trial court is directed to act accordingly.

Thus, in view of the above directions, the revisional application is answered in the affirmative and disposed of on contest.

There will, however, be no order as to costs.

The Office is directed to communicate this order to the learned trial court. The parties will also be at liberty to communicate this order to the learned trial court accordingly.

It is submitted by Mr. Ghosh that the learned trial court may expedite the hearing of the matter which is already seven years old. Therefore, the learned trial court is requested to see that the matter is disposed of at an early date considering the state of file of that particular court.

The affidavit-of-service filed today be kept with the record.

Urgent certified photostat copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.