Madhya Pradesh High Court
Pawan Kumar Pathak vs Mohan Prasad on 15 April, 2015
1 W.P. N0.1760/15
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
JUSTICE SUJOY PAUL.
Writ Petition No. 1760/15
Pawan Kumar Pathak
Vs.
Mohan Prasad
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Shri D.D.Bansal, Advocate with Shri Abhishek Bhadoria,
Advocate for the petitioner.
Shri Santosh Agrawal, Advocate for the respondent.
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ORDER
( 15 / 04 / 2015) This petition filed under Article 227 of the Constitution is directed against the order dated 25.2.2015 whereby the objection of the respondent/defendant (Annexure P-14) is allowed by the Court below.
2. The order dated 10.3.2015 (Annexure P-2) is also called in question whereby the application of the petitioner preferred under Order 47 Rule 1 CPC is rejected by the Court below. Learned counsel for the petitioner submits that the petitioner filed a suit for declaration and permanent injunction. During the pendency of the suit, an amendment application under Order 6 Rule 17 CPC was filed contending that the plaintiff is adopted son of late Shri Heeralal Pathak. The said amendment application was disallowed by the trial court. The said order was put to test before this Court in W.P.No. 7500/10. This court by order dated 17.11.2011 (Annexure P-7) dismissed the said writ petition. The petitioner made an unsuccessful effort to review that order by filing review petition No. 27/11 (Annexure P-7A). Yet another review 34/11 was filed which was disposed of on 9.2.2011 (Annexure P-7B). In this order, this Court gave liberty to the petitioner to raise objection in the appeal if suit is dismissed by the trial court. The said liberty was given on the basis of present petitioner's prayer seeking liberty to raise objection in appeal if the judgment of trial court goes against him. On the strength of 2 W.P. N0.1760/15 this liberty, it is contended by the petitioner that at appellate stage the petitioner will be at liberty to raise objection regarding the order of the trial court rejecting the amendment application. If at appellate stage petitioner's objections are sustained, the effect will be of allowing of the said amendment application. At that point, since the document is not taken on record and admitted in evidence, it will be a case where there will be pleading but without there being any evidence. It is contended that the Court below itself by order dated 19.11.2010 (para 17) had taken the said document (adoption deed dated 29.3.1973) on record. Thereafter, the plaintiff witness Shri Mohanlal Swarnakar was examined before the Commissioner vide Annexure P-12 dated 16.1.2015. In his deposition, the said adoption deed was exhibited as P32-C. Once the said document is taken on record and is also marked as exhibit, at later point of time, neither that document can be thrown out of record, nor it can be refused to be taken as an evidence.
3. To bolster the aforesaid submission, it is contended that the court below has erred in not taking such document on record. The proper course would have been to keep this issue of admissibility of this document alive till final decision of the matter. In support of this, reliance is placed on (2001) 2 SCC 65 (Bipin Shantilal Panchal Vs. State of Gujarat and another). The judgment of Delhi High Court reported in AIR 2010 Delhi page 1 (Coca Cola India Vs. C.P.Malik) is also relied upon. By placing reliance on Bombay High Court decision in AIR 1995 Bombay 333 )Appa Babaji Misal Patil and others Vs. Dagdu Chandru Misal, since deceased by his heirs Naginbai Dagadu Misal Etc.Etc. And others), it is contended that the court below has erred in rejecting the said document. In nutshell, the argument of the petitioner is that the petitioner has pleaded that he is owner of the property. The mode by which he became owner is a question of evidence which can be substantiated by leading evidence but court below was not justified in rejecting the document at this stage.
4. Per contra, Shri Santosh Agrawal, learned counsel for the 3 W.P. N0.1760/15 respondent, supported the impugned order. It is contended that the pleadings clearly show that there is no averment about the existence of the said adoption deed. In absence of pleadings, no evidence can be permitted to be lead. By placing reliance on order 6 Rule 2 CPC, it is contended that petitioner was required to plead material facts. On the basis of material facts and the stand taken in written statement, issues were required to be framed. Since there no material facts were pleaded with regard to existence of adoption deed, no issue was also framed and to show this attention of this Court was drawn on the issues framed. It is contended that the court below has not committed any error of law by rejecting the said document because there exists no pleading in this regard. It is contended that before the document was made exhibit by the Commissioner, the petitioner's protest and objection has already been recorded. It is for the competent court to decide whether such document can be treated as exhibit or not? The document can be treated as an exhibit only when the conditions mentioned in Order 13 Rule 4 CPC are satisfied. In support of his contention, he relied on a full bench judgment of Bombay High Court reported in 2009 (2) AIR (Bom) 296 (Hemendra Rasiklal Ghia & ors. Vs. Subodh Mody & Ors.). Shri Santosh Agrawal has taken pains to submit that the judgment on which heavy reliance is placed by the petitioner (Bipin Shantilal Panchal) has been considered by the Bombay High Court. In view of Bombay High Court judgment, no relief is due to the petitioner. Shri Santosh Agrawal further submitted that in absence of pleading, document is irrelevant and, therefore, court below has not committed any legal error in discarding it.
5. No other point is pressed by the learned counsel for the parties.
6. I have heard the learned counsel for the parties and perused the record.
7. In view of rival contentions advanced, the core issues need to be decided are firstly, whether the court below was justified in holding that the admissibility of document in evidence needs to be decided at the same stage when objection was taken?
4 W.P. N0.1760/15 Secondly, whether the court below has rightly refused to admit the adoption deed dt. 29.03.1973 as evidence? In order to deal with these issues, I deem it apposite to reproduce the relevant provision which deals with this aspect. Order 13 Rule 3 & 4 reads as under :-
"3. Rejection of irrelevant or inadmissible documents- The Court may at any stage of suit reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection.
4. Endorsement on documents admitted in evidence :- (1) Subject to the provisions of the next following sub-rule, there shall be endorsed on every document which has been admitted in evidence in the suit in the following particulars, namely:-
(a) the number and title of the suit'
(b) the name of the person producing the documents'
(c) the date on which it was produced, and
(d) a statement of its having been so admitted, and the endorsement shall be signed or initialled by the Judge.
(2) Where a document so admitted is an entry in a book, account or record, and a copy thereof has been substituted for the original under the next following rule, the particulars aforesaid shall be endorsed on the copy and the endorsement thereon shall be signed or initialled by the Judge.
8. The bone of contention of Shri D.D. Bansal is based on the judgment of Supreme Court in Bipin Shantilal Panchal (Supra). It is gathered that the said judgment was again considered by the Supreme Court in State Vs. Navjot Sandhu reported in 2003 (6) SCC 641. As per Bipin Shantilal Panchal (Supra) the better substitute suggested by the Supreme Court was that the objection raised about admissibility of evidence can be decided at the time of final hearing. At the time of objection, the document may be tentatively marked as exhibit subject to such objection to be decided at the last stage in the final judgment. However, I find force in the argument of Shri Santosh Agrawal that the judgment of Bipin Shantilal Panchal (Supra) was considered by the larger Bench of Bombay High Court in Hemendra Rasiklal Ghia (Supra). There was a cleavage of opinion between two Benches and therefore, the learned single Judge found it necessary to refer the following question for decision by larger Bench. The 5 W.P. N0.1760/15 question which is relevant for adjudication of this matter is :-
(1) Whether the questions as to admissibility or mode of proof of evidence, oral and documentary, should be decided upon when raised or whether decisions thereon can be deferred to a later stage?
9. The Bombay High Court considered various judgments of privy council, Supreme Court and various High Courts and opined that these judgments lean in favour of determining the question as to admissibility of document at the time of its reception or at the earliest possible opportunity. The reason is that if the Court allows the objection, the party tendering the evidence may take such steps as may be advised to get the lacunae remedied. Once inadmissible evidence is admitted on record, it is impossible to say what its effect may be on the mind of the person, who hears it. It creates atmosphere of prejudice of affecting fair trial. It may, unconsciously, be regarded by judicial minds as corroboration of some piece of evidence legally admissible and thereby obtain for latter quite undue weight and significance. In order to prevent inadmissible evidence going on record, the opponent can always raise an objection to the admissibility of document. The larger Bench considered the judgment of Bipin Shantilal Panchal and Navjot Sandhu (Supra) and opined as under :-
"81. The aforesaid view is again reiterated by another two Judge Bench of the Supreme Court in the case of Smt. Dayamathi Bai Vs. K.M. Shaffi (Supra) wherein the reliance is placed on the Privy Council judgment in the case of Gopal Das Vs. Sri Thakurji (supra); wherein the Privy Council ruled that the objection as to the mode of proof must be taken and determined as it arises before the document is marked and exhibited.
82. While taking above view, we are also conscious of the another three Judge Bench judgment of the Supreme Court in the case of Bipin Shantilal Panchal (supra) followed by another judgment in the case of State v. Navjot Sandhu (supra); wherein the view taken is that whenever any objection is taken regarding admissibility of the material or any item of oral last evidence such objection should be decided at the stage of the final judgment. The said judgments were followed by the learned single Judge of this Court in the case of Boman P. Irani (supra).
83. The procedure suggested by three Judge 6 W.P. N0.1760/15 Bench of the Apex Court in the case of Bipin Shantilal Panchal (supra) for being followed is little different than the view expressed by the another three Judge Bench judgment of the same Court in the case of P.C. Purushothama Reddiar Vs. S. Perumal (supra) followed by two Division Benches of the Supreme Court in the cases of R.V.E. Venkatachalam Grounder and Smt. Dayamathi Bai Vs. K.M. Shaffi (cited supra).
84. Now the questions arises as to which of the two views this Court should follow. The view expressed in Bipin Shantilal Panchal (supra) by the Apex Court is based on the peculiar factual matrix arising out of criminal trial which was prolonged for almost 10 (Ten) years in breach of fundamental right of the accused under Article 21 of the Constitution of India guarantying speedy and expeditious trial. The same view was followed in the case of State v. Navjot Sandhu (supra) involving more or less similar facts surfaced in a criminal trial. The question referred for our consideration arises out of civil proceedings governed by the provisions of the C.P.C. It is well settled that if certain things are required to be done It is well by the Statute in a specific manner, then it cannot be done in any other manner as ruled by the Apex Court in the case of ( Nazir Ahmed Vs. King Emperor)34, A.I.R. 1936 PC 243; (State of Uttar Pradesh Vs. Singhara Singh) 35, 1964 SC 358 followed by this Court in ( Vanmala S.Aney Vs. National Education Society, Khamgaon) 36 1982 B.C.I. 47 : 1982 403. Thus, mandate of Order XIII Rules 3 and 4 read with Order XVIII Rule 4(1) and consensus of judicial opinion compel us to fall in line with the view expressed in R.V.E. Venkatachalam Gounder and Smt. Dayamathi Bai Vs. K.M. Shaffi (both cited supra).
85. Apart from the above, the principles of stare decisis squarely applies to the case on hand. In (Mishri Lal Vs. Dhirendra Nath) 37, 1999 DGLS (soft) 396 : (1999) 4 S.C.C. 11 ( paras 14-22), the Supreme Court referred to its earlier decision in (Maktul Vs. Manbhari( 38, 1958 DGLS (soft) 86 : A.I.R. 1958 S.C. 918 on the scope of doctrine of stare decisis with reference to Hulsbury's Laws of England and Corpus Juris Secundum and held ( at S.C.C. p. 18 para-14) that-
"a decision which has been followed for a long period of time, and has been acted upon by persons in the formation of contracts or in the disposition of their property, or in the general conduct of affairs, or in legal procedure or in other ways, will generally be followed by courts of higher authority other than the court establishing the rule, even though the court before whom the matter arises afterwards might be of 7 W.P. N0.1760/15 a different view."
86. Assuming that it is possible to take different view or work out different procedure as suggested in Bipin Shantilal Panchal; as long as principle laid down in; in P.C. Purushothama Reddiar Vs. S. Perumal; R.V.E. Venkatachalam Gounder; and Smt. Dayamathi Bai Vs. K.M. Shaffi ( all cited supra) has been consistently followed in our country in civil matters, as observed in Mishri Lal (supra), it will be worthwhile to let the matter rest since a large number of parties have modulated and continue to modulate their legal relationships based on the settled law.
Bombay High Court answered the aforesaid question as under :-
"As already noticed, (i) objection to the document sought to be produced relating to the deficiency of stamp duty must be taken when the document is tendered in evidence and such objection must be judicially determined before it is marked as exhibit;
(ii) Objection relating to the proof of document of which admissibility is not in dispute must be taken and judicially determined when it is marked as exhibit;"
(Emphasis supplied)
10. The larger Bench opined that in civil matters and in view of provision of C.P.C., objection needs to be decided at the earliest. Order 13 Rule 4 C.P.C. makes it clear that every document which has been admitted in evidence in the suit must contain an endorsement regarding the number and title of suit, the name of the person producing the documents, the date on which it was produced and a statement of its having been so admitted. Statutory mandate is that this endorsement must be signed or initialled by the Judge. Sub Rule 2 makes it obligatory on the part of the judge to make an endorsement and sign or initialled it when the document is an entry in a book, account or record. Thus, C.P.C contains a specific mandatory procedure for the propose of admitting a document. This procedure is being followed by civil Courts on regular basis. As per this statutory procedure and principle of stare decisis, I respectfully agree with the view taken by Bombay High Court in Hemendra Rasiklal (Supra). Since this Court has followed the judgment of larger Bench of Bombay High Court, other judgments cited by the 8 W.P. N0.1760/15 parties are of no assistance.
11. The ancillary question raised by Shri D. D. Bansal was that once a document is marked as exhibit, at a later stage, it is not open to the other side to raise objection in this regard. In his rejoinder argument, he contended that Bombay High Court in Hemendra Rasiklal (Supra) has framed three categories of evidence which is reproduced in para 70 of the judgment. He strenuously contended that petitioner's document falls within the ambit of clause (ii) mentioned in para 70 of the said judgment. This clause (ii) deals with the objection which does not dispute admissibility of document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient.
12. It is noteworthy that in para 77 the larger Bench held that objection to the admissibility of the document in first and second categories of cases has to be taken before the document is exhibited which, necessarily, postulates decision on the objection then and there. In other words, whether document is admissible or inadmissible is matter which should always be ruled upon at the time when the document is being proved or the question asked to the witness. Such practice and procedure is fair to both the parties.
13. In the present case, a simple reading of document Annexure P/12 shows that witness Mohan Lal Swarnkar's statement was recorded by the Court Commissioner. Before the said document could be marked as exhibit, a specific objection was taken about its admissibility by the other side. The Court Commissioner tentatively marked the said document as Ex.P/32(c) and reserved the objection of other side to be decided by the Court. Needless to mention that said objection could not have been decided by the Court Commissioner. Later on, a specific objection (Annexure P/14) was also filed in this regard which has been decided by the impugned order.
14. I am not impressed with the contention of Shri Bansal that once document is marked as exhibit, no eyebrows can be raised at later stage. In the peculiar facts of this case, it is clear that objection was taken by the respondents at the first place and 9 W.P. N0.1760/15 exhibit was marked subject to decision on that objection by the competent court. At the cost of repetition, it may be noted that the Court Commissioner was not competent to decide the said objection. This aspect is also dealt with by the Bombay High Court in Hemendra Rasiklal Ghia (Supra), relevant portion reads as under :-
"88. The Court, obviously, has a discretion of recording cross-examination and re-examination itself. During the cross-examination, if the document is produced and the question to its admissibility is raised, then, the Commissioner cannot rule the point as to admissibility of the evidence. In such case, the Court Commissioner is expected to record objection and can give tentative exhibit to the document subject to the decision of the Court. The Court would then be obliged to decide the question before the judgment is delivered so that the party producing evidence could not be deprived of its right to tender evidence or an opportunity of producing fresh evidence or opportunity of making up defects which in many cases could be remedied, if he is told that the objection is allowed."
15. The judgment of larger Bench in Hemendra Rasiklal (Supra) shows that the High Court has taken pains to marshal the entire law on the subject. Thus, in view of the said judgment, it is clear that in civil matters, the objection aforesaid needs to be decided at the earliest and preferably before it is marked as an exhibit. In order to avoid confusion, it is made clear that in cases where evidence is recorded by Commissioner, it will be open for Commissioner to record the objection raised about admissibility of the document and tentatively mark the document as "exhibit". Decision on said objection must be taken by the court at the earliest. In the present case, the court below has adopted the same procedure which is in consonance with law and judgment of Hemendra Rasiklal (Supra). Hence, I find no procedural impropriety in the impugned order.
16. The last question needs to be determined is whether the Court below has erred in holding that the adoption deed is inadmissible in evidence. It is apt to remember that in the plaint, admittedly, there is no factual foundation about the said adoption deed. Having realised this, the plaintiff filed an application under 10 W.P. N0.1760/15 Order 6 Rule 17 C.P.C. before the Court below. The said application was rejected on 19.11.2010. This order was put to test by the petitioner in WP No. 7500/2010. This Court dismissed the said petition and opined as under
"Lateron, the plaintiff-petitioner filed an application under Order 6 Rule 17 C.P.C. in regard to amendment in the plaint. By way of aforesaid amendment the plaintiff- petitioner sought an amendment in the plaint to the effect that late Heeralal adopted the plaintiff-petitioner as son during his life time and an adoption deed was also executed to this effect. That application has been rejected by the trial Court.
In our opinion, the amendment, which is sought by the plaintiff-petitioner by way of an application under Order 6 Rule 17 C.P.C, in regard to the fact that the plaintiff-petitioner is an adopted son of late Heeralal, has rightly been rejected by the trial Court because it would be inconsistent to earlier plea of the plaintiff-petitioner and it would amount to grant of an opportunity to the plaintiff to fill up the lacuna of the evidence. Hence, in our opinion, there is no illegality or irregularity committed by the trial Court in rejecting the application for amendment filed under Order 6 Rule 17 C.P.C."
17. This court opined that the stand of the petitioner is inconsistent in nature. His earlier plea was different and he made an effort to fill up the lacuna of the evidence. Thus, his amendment application was disallowed. This clearly shows that even petitioner realised that there exists a need of specific pleading regarding the said adoption deed. However, said after thought of the petitioner and amendment was disallowed by giving a specific finding that it will tantamount to fill up the lacuna of the evidence. This order has attained finality. Only liberty given to the petitioner in RP No. 34/2011 was to take this objection in appeal if civil suit is decided against him.
18. The Apex Court in AIR 1968 SC 1083 (Mrs. Om Prabha Jain Vs. Abnash Chand and another) opined that ordinary rule of law is that evidence is to be given only on a plea properly raised and not in contradiction of the plea. Different pleas are made on two different occasions which are contrary to each other, the same cannot be admitted. In the peculiar facts and 11 W.P. N0.1760/15 circumstances of this case, it is clear that attempt of the petitioner to make specific pleading regarding existence of adoption deed was disallowed by this Court.
19. In this view of the matter, no fault can be found in the impugned order dated 25.02.2015, wherein the court below opined that document cannot be admitted in evidence. The second impugned order dated 10.03.2015 is passed on an application filed under Order 47 Rule 1 C.P.C. The Court below has rightly rejected the said application. Under the garb of review, the petitioner cannot be permitted to re-argue and reagitate the matter. There was no error apparent on the face of the record. Putting it differently, the petitioner could not satisfy the necessary ingredients for invoking review jurisdiction of the trial Court. Thus, no interference is required on this aspect. As analyzed above, Court below has taken a legal and plausible view.
20. The scope of interference under Article 227 of the Constitution is limited. If order is shown to be passed by a Court having no jurisdiction, it suffers from manifest procedural impropriety or perversity, interference can be made. Even an erroneous order is not required to be corrected in these proceedings under Article 227 of the Constitution. The basic purpose of exercising the said jurisdiction is to keep the courts below within the bounds of their authority. Interference can be made sparingly for the said purpose and not for correcting error of facts and law in a routine manner. Another view is possible, is not a ground for interference. This view is taken in Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil reported in (2010) 8 SCC 329. There is no ingredient on which interference can be made in this petition.
21. Resultantly, petition fails and is hereby dismissed. No costs.
(Sujoy Paul) Judge vv sarathe