Rajasthan High Court - Jodhpur
Om Prakash vs Smt. Sumitra Devi @ Sumiya & Anr on 20 February, 2013
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
:ORDER :
Om Prakash Vs. Smt. Sumitra Devi & Another
(S.B. Civil Writ Petition No.220/2012)
DATE OF ORDER : February 20, 2013
PRESENT
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
_________________________________________
Mr. P.M. Vyas for the petitioner.
Mr. H.L. Kela for the respondent.
BY THE COURT :
In this writ petition filed under Article 227 of the Constitution of India, the petitioner has prayed for quashing the impugned proceedings/order dated 15.11.2011 (Annex.-5) passed by the Civil Judge (Jr. Dn.) & Judl. Magistrate, Jodhpur Metropolis in Civil Original Case No.60/2009, by which, the trial Court passed an order during recording statement that question of admissibility of unregistered document will be decided at the time of final decision and allowed to exhibit the relinquish deed dated 09.04.1999.
Learned counsel for the petitioner submits that a suit for permanent injunction has been filed by the petitioner before the Civil Judge & Judl. Magistrate, Jodhpur Metropolis and a prayer was made that the respondent may be restrained from removing his immovable property situated at inside Nagori Gate, Vishan Pura, Shanker Bhawan Striate Gati.
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The respondents filed their written-statement and also filed photo stat copy of the relinquish deed. The petitioner filed affidavit of himself as well as of one witness Sunil. At the time of cross-examination by the respondent-defendants the photo stat copy of the relinquish deed was filed by the defendant which is not duly stamped and not registered, then, the petitioner raised an objection that this document is not admissible in evidence.
The trial Court turned turned down the prayer of the petitioner and passed an order to exhibit the document and further ordered that question of admissibility of the document unregistered relinquish deed will be decided at the time of final decision of the case. Learned counsel for the petitioner submits that order passed by the trial Court is against the basic principles of law and law laid down by this Court.
Learned counsel for the petitioner invited my attention towards judgment of this Court rendered by the co-ordinate Bench, reported in AIR 2010 Rajasthan 59, Ramesh Chandra & Others Vs. Addl. District Judge & Others, and judgment of the Hon'ble Supreme Court reported in (2003) 8 SCC 752, R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple & Another; and, submits that as per adjudication made by the Hon'ble Supreme Court the objection with regard to admissibility of the document is required to be decided then and there and postponing the decision on such objection is contrary to the object with which the Civil Procedure Code was amended 3 in the year 2002 viz., to expedite the trial. Therefore, it is submitted that the trial Court may be directed to first decide the objection raised by the petitioner-plaintiff with regard to admissibility of the unregistered relinquish deed and, then, proceed with trial.
Per contra, learned counsel for the respondent submits that there is no error in the order passed by the trial Court, therefore, this writ petition may be dismissed.
After hearing learned counsel for the parties, I have perused the order impugned as well as judgment of the Hon'ble Supreme Court in the case of R.V.E. Venkatachla Gounder (supra) and judgment of co-ordinate Bench rendered in the case of Ramesh Chandra & Others (supra).
The Hon'ble Supreme Court, in the case of R.V.E. Venkatachala Gounder (supra), while deciding identical question held that objection with regard to the admissibility and inadmissibility of document on the ground of irregularity or insufficiency is required to be decided first. The objection can be raised when the evidence is tendered but not after the document has been admitted in evidence and marked as exhibit. Para 20 of the said judgment is as follows :
"20. The learned counsel for the defendant-respondent has relied on The Roman Catholic Mission Vs. The State of Madras & Anr. AIR 1966 SC 1457 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 4 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 5 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."
The aforesaid judgment was further followed by co- ordinate Bench of this Court in Ramesh Chandra's case, in which, following adjudication was made by the co-ordinate Bench :
"7. It appears from the aforesaid legal position that it will depend upon the nature of the objection of the defendants as to whether such objection is as to the admissibility of the evidence itself or as to the mode of proof of such evidence by other parties. If the objection is to the admissibility of the evidence itself, that goes to the root of the matter, then such objection is required to be decided forthwith and immediately. The words used by the Hon'ble Supreme Court in the aforesaid case of R.V.E. Venkatachala Gounder (supra) are "then and there", that means that without deciding such objection, the trial Court cannot proceed further. From a bare perusal of the objection raised by the defendants in the present case vide their application (Annex.4) dtd.7.8.2006, it would appear that the defendants had raised the question of admissibility of such evidence, namely the agreement on the basis of which the suit for specific performance was filed, the same being unregistered and unstamped, the said agreement was not admissible in evidence in accordance with the provisions of stamp law, reference to which was made in para 3 of the said application.6
8. The learned counsel for the respondents
- plaintiffs also could not make serious rebuttal of this argument of learned counsel for the petitioners that this objection is not the objection as to the admissibility of the said evidence, but is as to the mode of proof of said evidence. In view of the objection being of the category
(i), out of two categories specified by the Hon'ble Apex Court, it goes without saying that such objection as to the admissibility of the document was required to be decided forthwith then and there and could not be postponed until the time of final arguments of the suit itself. In view of aforesaid legal position, the judgment of the learned Single Judge of this Court in the case of Jogendero Devi (supra), wherein in para 13 of the judgment, the learned Single Judge held that "all objections during the recording of evidence before the Commissioner are required to be recorded only by the Commissioner for the purpose of having a decision of the Court at the stage of the arguments, obviously final arguments, therefore, after the amendment of the CPC, the procedure can be followed as provided in Order 18 Rule 4 CPC, the validity of which has also been upheld by the Hon'ble Apex Court, with great respects, is distinguishable and cannot be followed because in the present case in hand, firstly does not relate to the evidence being recorded by the Commissioner and secondly under Order 18 Rule 4(1) C.P.C., which applies in the present case, clearly states in proviso that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed alongwith the affidavit shall be subject to the orders of the Court.
9. In Jogindero Devi's case, the Court was dealing with Order 18 Rule 4(4) and not Order 18 Rule 4(1) C.P.C. and it may be noted that the proviso in two sub-rules is differently worded. The proviso to Order 18 Rule 4(1) C.P.C. ends with the words "subject to the orders of the Court"
whereas, proviso to Order 18 Rule 4(4) 7 C.P.C. ends with the words "decided by the Court at the stage of arguments". At what point of time such decision or order under both these provisions has to be made by the Court is not specified in the statute itself. Therefore, it would depend upon the nature of the objection itself. The said position of law has been crystalized by the Apex Court in R.V.E. Venkatchala Gounder 's case (supra), wherein two categories of objections have been specified, namely, objection as to the admissibility of evidence and objection as to mode of proof of the evidence, and we have to go by that proposition of law laid down by the Apex Court. Such orders of the Court have to be passed immediately upon such objection as to the admissibility of the evidence when it is raised and pronouncement on such objection cannot be postponed until the time of final arguments on the suit itself. This would even otherwise be incongruous to postpone the decision on the objection as to the admissibility of the evidence which goes to the root of the matter, until the time of final arguments of the suit. That would be putting the clock back at square one at that stage if the evidence is found to be inadmissible by the Court. Like the question of jurisdiction and limitation being required to be decided at the first instance, the question of admissibility of evidence are also required to be decided forthwith and immediately. Postponing the decision on such objection would act contrary to the object with which the CPC was amended in the year 2002, namely, to expedite the trial. Therefore, in the considered opinion of this Court, the learned trial Court has fallen into error in postponing the decision on the objection as to the admissibility of evidence until final arguments on suit itself and therefore, the impugned order dtd.7.8.2006 cannot be sustained."
In view of the above adjudication of Hon'ble Supreme Court the order impugned in this writ petition is not sustainable in law. Consequently, this writ petition is allowed. Order impugned dated 15.11.2011 (Annex.-5) is hereby quashed and 8 set aside. The trial Court is directed to decide the question of admissibility of the unregistered relinquish deed forthwith and, thereafter, proceed with the trial Court of the case.
(Gopal Krishan Vyas) J.
Ojha, a.