Delhi High Court
Shail Kumari vs Saraswati Devi on 2 August, 2001
Equivalent citations: 96(2002)DLT131, AIR 2002 (NOC) 167 (DEL), 2002 A I H C 1973, (2002) 2 PUN LR 26, (2002) 96 DLT 131, (2002) 3 CIVILCOURTC 84, (2002) 3 RECCIVR 239
Author: Mahmood Ali Khan
Bench: Mahmood Ali Khan
JUDGMENT Mahmood Ali Khan, J.
1. ADMIT.
2. On the request of counsel for the parties arguments were heard for final disposal of the matter.
3. This revision petition raises a simple as well as a question of great importance to the subordinate courts as to whether in the trial of a civil suit during examination of a witness when a document is tendered in evidence and it is sought to be proved the question of admissibility of that document and marking of the exhibit thereon may be deferred till the stage of hearing of final arguments.
4. The factual matrix of the case is that the petitioner/plaintiff filed a civil suit for declaration that she was the sole and absolute owner of the disputed wall and also for grant of permanent injunction restraining the respondent from raising any further construction in the suit property. On contest by the respondent, the trial court framed the issues. The petitioner did not enter into the witness box herself. She examined her daughter Ms. Geeta Rohtagi as PW-3 to prove her case. In her statement Ms. Geeta Rohtagi stated that the petitioner had executed a power of attorney in her favor and she identified the signatures of the petitioner on that document. The court put 'mark X' on the document and recorded following observations in the statement:-
"The document is got marked because it has been filed at a belated stage. And there is not photocopy of same is available on the record. Its admissibility to be decided at the time of final arguments."
5. PW3 Ms. Geeta Rohtagi further stated that her mother, the petitioner, became owner of the property by virtue of a registered settlement deed dated 5.9.1950. She has brought the original deed of settlement, Hindi translation of which is 'marked Y'. Below it the court recorded the following observations:-
The document has been marked because of the fact that there is not copy of the same available on record in Urdu language. Though the Ld. Counsel for plaintiff submits that the translation of the same is on record in Hindi. Whether should be exhibited or not is to be decided at the stage of final argument.
6. Thereafter the petitioner filed an application under Order 13 Rule 1 & 2 read with Section 151 CPC seeking permission of the court to produce photocopy of the settlement deed dated 5.9.1950 in Urdu script and also photocopy of a registered general power of attorney dated 31.7.1998. She moved another application under Section 151 CPC, inter alia, praying that the objections with regard to the exhibition of the two documents be decided at this stage rather than deferring them for decision at the stage of final argument. She also moved an application for amendment of the issue No. 1. All these three applications were disposed of by the learned Civil Judge by a common order dated 15.2.2000.
7. The petitioner is aggrieved by the order of the learned Civil Judge by which he had declined to allow her to file the subsequent power of attorney dated 31.7.1998 and has deferred decision on the question of admissibility of the documents marked 'X' and 'Y' and marking of exhibits on them at the stage of recording of evidence, to the stage of hearing of final arguments.
8. At the outset a question was posed to the counsel for the petitioner whether one revision petition assailing two orders passed on separate and distinct subject matter in a civil suit is competent. The counsel for the petitioner relying upon the judgment in Nand Ram v. Karnail Singh and Ors. AIR 1978 Punjab and Haryana 100 has argued that a single petition may be filed for assailing two decisions if made by a common order. I have considered the judgment cited by him and do not find that it supports his argument. In the judgment the High Court has exercised its own powers suo motu for dealing with the second matter observing that it was within the competence of the High Court to set aside the second order if the second order seem to have been passed either in excess or without jurisdiction or with material irregularity or illegality in exercise of the jurisdiction by the trial court. The court also considered the second order because the application for amendment was really not a serious matter. Therefore, I doubt that a single revision petition challenging two separate and distinct orders dealing with different subject matters is maintainable. Ordinarily orders on different subjects, even though decided by a common order, should be subject matter of challenge in different revision petitions. To do complete justice in certain cases if the court finds it appropriate it may exercise its powers given by Section 115 CPC for revising an order on finding that the second order is the result of an error of jurisdiction, illegality or material irregularity in exercise of jurisdiction by the trial court. Like the case of nand Ram v. Karnail Singh and Ors. (supra) second order is not of much consequence. It is that order by which the trial court had refused permission to the petitioner to file a power of attorney executed by the petitioner in favor of her daughter Ms. Geeta Rohtagi on 31.7.1998. The petitioner had executed a power of attorney in the name of her daughter on 29.11.1998. A copy of this power of attorney has been marked 'X' during the deposition of Ms. Rohtagi. The trial court dismissed the application of the petitioner for filing the new power of attorney observing that the old power of attorney and the new power of attorney were similar and, therefore, new power of attorney was not relevant. The argument of the counsel for the petitioner is that the difference between the two power of attorneys is that the petitioner has ratified all the acts and deeds of her daughter Ms. Rohtagi by a power of attorney dated 31.7.1998 and in order to avoid any possible objection on any of the action taken by Ms. Rohtagi on behalf of the petitioner in this suit, this power of attorney becomes relevant to be filed and taken into consideration. This submission has not been controverter on behalf of the respondent. Therofre, in my view of these facts the trial court committed grave error in not allowing the petitioner to place new power of attorney dated 31.7.1998 on record and prove it. The respondent could have been adequately compensated by cost. The order of the trial court disallowing the filing of power of attorney dated 31.7.1998 is unsustainable in law and should be set aside.
9. Now I pass on to the second question which needs examination in detail.
10. The learned Civil Judge has relied upon heavily on the judgment in Sudir Engineering Co. v. Nitco Roadways Ltd. in deciding that the question of admissibility and marking exhibit on the two documents shall be considered by him at the stage of hearing of final arguments.
11. The short question here is whether the trial court was justified in postponing the decisions on the admissibility and marking of exhibit on documents marked 'X' and marked 'Y' when the statement of the witness Ms. Geeta Rohtagi PW-3 was being recorded for tendering and proving them. Decision of this Court in Sudir Engineering Co. (supra), to my view, will not be of much help in deciding this question. The question of marking exhibit on documents during the recording of the statement of the witness, who were examined to prove it, arose in a civil suit which was tried by the High Court in exercise of its original jurisdiction. This Court decided it in the light of the Rules applicable and practices followed by it while trying original suit. It is clear from the following observation:
"I have looked into the provisions of Delhi High Court (Original Side) Rules 1967 also. Chapter XIII Rule 3 provides for documents admitted in evidence being numbered in such manner as the Court may direct......
.....There is an Original Side Practice Direction (No. 3 of 1974) which vide paras 6 and 7 provides..... A bare reading of this Practice Direction shows that it is not artistically drafted 'Proved' as used in para 6, is nothing else except used loosely for 'put in' 'produced' or 'tendered'. After all the question of proof is not answered by the Court during the statement of witnesses simultaneously with production of documents nor does the Court Master decide upon proof of documents. Para 7 makes it clear that endorsement by the Court Master of exhibit number on a document is 'admission in evidence' and not proof of a document...... Every Court is free to regulate its own affairs within the framework of law. Chapter XIII Rule 3 above said contemplates documents admitted in evidence being numbered in such manner as the Court may direct. I make it clear for this case and for all the cases coming up before me in future that the documents tendered and admitted in evidence shall be marked with numerical serial numbers, prefixed by Ext. P if filed by plaintiff or petitioner and prefixed by Ex.D if filed by defendant or respondent."
12. Delhi High Court (Original Side) Rules and the Original Side Practice Directions of this Court, on many matters, were materially different from the provisions of Punjab High Court Rules and Orders as applicable to subordinate court in Delhi and the practice prevailing in the Civil Subordinate Courts.
13. The practice in the Subordinate Civil Courts is that a document, which is tendered by a party and is admitted in evidence by the court, is marked exhibit number (i) if it is admitted by the opposite party, or (ii) its formal proof has been dispensed with by the opposite party affected by it, or (iii) it is certified copies of public document or otherwise admissible in evidence like certified copies issued under Bankers' Books Evidence Act 1891, or (iv) is 30 years old document or (v) it has been proved by judicial evidence in accordance with the provisions of Indian Evidence Act. Sometimes the trial court also put exhibit number with note 'objected' by counsel of the plaintiff or defendant (the affected party) or writing note 'subject to objection' or 'subject to objection of the counsel' for the party affected by the document. The exhibit number put on a document signifies its acceptance and admissibility in evidence and also that it has been proved by judicial evidence or otherwise and that it will be read in evidence. Writing of words 'objected' by opposite party or 'subject to objection' by opposite party indicates that the question of admissibility is kept open to be decided later or at the time of hearing of final arguments and the marking of exhibit is only provisional or tentative.
14. In case a document is marked exhibit without an objection from the party which is affected by that document ordinarily its admissibility cannot be questioned at a later stage of the proceedings in the suit. But in cases where such document is marked exhibit without due application of mind in violation of provisions of a statute requiring a particular mode of proof etc., the opposite party may still show during the hearing of final arguments that the document is inadmissible in evidence and should be excluded from consideration because of statutory bar or non-compliance of statutory requirement about mode of proof or otherwise. For instance a will is required to be proved by examining at least one of the attesting witnesses in accordance with Section 68 of the Evidence Act. A document which is in-admissible for want of registration or proper stamp is in-admissible in evidence, unless use of it is permissible for collateral purposes or extracts of accounts book without production of books of account and proof that they were kept in ordinary course of business. Mere putting of exhibits number on these documents in the absence of their proof in accordance with law does not make them part of the evidence to be read for deciding the suit. In Sait Tarajee Khimchand and Ors. v. Yelamarti Satyam and Ors. the Supreme Court has laid down that mere marking of an exhibit does not dispense with the proof of the document. All those document which are not proved in the view of the court by judicial evidence are simply to be marked for the purpose of their identification. Ordinarily this marking is done as A, B, C, OR X, Y, Z and if they are in a bunch then A1 to A5 etc. On the other hand, the documents which have been tendered in evidence and have been admitted in evidence and in view of the court they have been proved by judicial evidence or otherwise and/or admissible in law are marked exhibit number such as Exhibit P1, P2, if they are documents of the plaintiff and Exhibit D1, D2 if they are documents of a defendant. Sometimes they are even given exhibit mark writing the number of witness which proved it like PW1/1 or DW1/1 etc. The distinctive feature of the two marking is that while the marking exhibit on a document is regarded to be its admissibility in evidence and its becoming part of evidence until the court at subsequent stage considered it to have not been proved and legally admitted into evidence in view of some statutory bar etc., a document on which a simple marking is put doe snot form part of the evidence and it could only be referred for identifying that document.
15. Let me now examine the High Court Rules and Orders on this subject. Part-G of Chapter-1 of Punjab High Court Rules and Orders deals with the documentary evidence. Rule-1 of this part is relating to production of the documents by the parties. Rule-2 is about filing of the documents with the list and the preservation of the documents. Rule-3 requires the court to formally call upon the parties at the first hearing at the time of the framing of the issues to produce their documents. Late production of the documents by the parties is dealt by Rule-4. Rule-5 requires a note to be made of defective documents erased or underlined or which present suspicious appearance. Rule-6 says that the court should be careful to distinguish between mere production of documents and their "admission in evidence" after being either 'admitted' by the opposite party or 'proved' according to the law. It further provided that when documents are produced by the parties they are only temporarily placed on the record subject to their being admitted in evidence in due course and the only documents which are duly admitted in evidence form part of the record while the rest must be returned to the parties producing it. It states as under:
"6. Courts should be careful to distinguish between mere production of documents and their 'admission in evidence' after being either 'admitted' by the opposite party or 'Proved' according to law. When documents are 'produced' by the parties, they are only temporarily placed on the record subject to their being 'admitted in evidence' in due course. Only documents which are duly 'admitted in evidence' form a part of the record, while the rest must be, returned to the parties producing them (Order XIII, Rule 7).
16. Rule-7 deals with the tender of the documents in evidence. It provides that document which the party intended to use as evidence against his opponent must be formally tendered by him in the course of proving his case. If a document has been placed on the record it may be referred to for the purpose and if it is not on the record it must be called to be produced by the person in whose custody it was. The procedure to be followed when the documents were admitted by the opposite party has been given in Rule-8. It says that if the opposite party does not object to the documents being admitted in evidence, an endorsement to that fact must be made by the Judge with his own hand and if the document is not such as is forbidden by the Legislature to be used as evidence, the Judge will admit it, read it or so much of it as the parties may desire to be read. When the opposite party does not admit the document, the procedure to be followed is given in Rule-9. It says if the opposite party objects to a document being admitted in evidence, two questions commonly arise: first is whether the document is authentic and second is whether it is legally admissible in evidence against the party who is sought to be affected by it. The latter question in general, is a matter of argument only; but the first must, as a rule, be supported by such testimony as the party can adduce. It is followed by Rule 10 which says that all legal objections as to the admissibility of a document should, as far as possible, be promptly disposed of, and the court should carefully note the objection raised and the decision thereon. It further provided that the court is bound to consider, suo-motu, whether any document sought to be proved is relevant and whether there is any legal objection to its admissibility. There may be certain classes of documents which are wholly inadmissible in evidence for certain purpose owing to the defects such as want of registration etc. and there may be others in which the defect could be cured, for example by payment of penalty in case of certain unstamped or unsufficiently stamped documents. To be precise it is reproduced below:-
" All legal objections as to the admissibility of a document should, as far as possible, be promptly disposed of, and the Court should carefully note the objection raised and the decision thereon.
The Court is also bound to consider, suo motu, whether any document sought to be proved is relevant and whether there is any legal objection to its admissibility. There are certain classes of documents which are wholly inadmissible in evidence for certain purpose owing to defects such as want of registration, etc. There are others in which the defect can be cured, e.g., by payment of penalty in the case of certain unstamped or insufficiently stamped documents."
(Emphasis supplied)
17. Rule 11 is about the mode of proof. It says that the general rule is that the document should be proved by primary evidence i.e. document itself should be produced in original and proved. If secondary evidence is permitted, the court should see that the conditions under which such evidence can be let in, exist. If an old document is sought to be proved under Section 90, the court should satisfy by every reasonable means that it comes from proper custody. Certain points which the courts should bear in mind when the signature attestation of the document is sought to be proved are mentioned in Rule 12. Rule 14 is regarding endorsements on the documents admitted in evidence. Being relevant for the controversy, it is reproduced below:-
"Every document 'admitted in evidence' must be endorsed and signed or initialled by the Judge in the manner required by Order XIII, Rule 4 and marked with an Exhibit number. Documents produced by the plaintiff may be conveniently marked as Ex. P.1, Ex. P.2, etc., - while those produced by the defendant as Ex. D1, D.2, D.3, etc. To ensure strict compliance with the provisions or Order XIII, Rule 4 (...the importance of which has been emphasized by their Lordships of the Privy Council, on more than one occasion each Civil Court has been supplied with a rubber stamp in the following form:
Suit No......of .....19.....
Title .. Plaintiff ..... versus .... Defendant Produced by .....
On the ..... day of ..... 19.....
Nature of document.....
Stamp duty paid Rs. ...is (is not) correct.
Admitted as Exhibit No......
On the ..... day of ..... 19.....
Judge The entries in the above form should be filed in at the time when the document is admitted in evidence under the signature of the Judge. This precaution is necessary to prevent any substitution or tampering with the document. Details as to the nature of the document and the stamp duty paid upon it are required to be entered in order that Courts may not neglect he duties imposed on them by Section 33 of the Indian Stamp Act, 1899. District Judges should see that all Court subordinate to them are supplied with these stamps.
The above rule also applies to documents produced during the course of an enquiry made on remand by an appellate court.
The endorsement and stamp will show that the document is proved. It is to be remembered that the word "proved" used in the context here means "that judicial evidence has been led about it", and does not imply "proof" in an absolute sense."
18. There are other rules also which deal with how the endorsement is to be made at the documents which are not admitted in evidence, the documents which are required to be placed in strong cover, the consequences of not properly admitting documents etc. However Rule 18 which has relevance to the controversy raised is necessary to be noticed. It is as follows:-
" It is the duty of the Court, before hearing arguments, finally to revise the record which is to form the basis of its judgment and to see that it contains all that has been formally admitted in evidence and nothing else. Any papers still found with the file, which have not been admitted in evidence, should be returned to the parties.
Appellate Courts should examine the records of cases coming before them on appeal with a view to satisfying themselves that subordinate Courts have complied with the provisions of the law and instructions of the High Court on the subject, and should take serious notice of the matter when it appears that any Court has failed to do so."
(Emphasis supplied)
19. A careful reading of these rules showed that the trial court was duty bound to consider the question of admissibility and the proof of the document which were tendered or sought to be proved by judicial evidence promptly and not defer this decision as to the admissibility or mode of proof, if objection raised, till the final arguments are heard. At the stage of final hearing no document should remain on file which has not been admitted to evidence. Rule 10 and 18 reproduced above clearly enjoins on a court that question of admissibility should not be deferred but should be decided immediately as and when it is raised and should be decided before the date of hearing of final arguments.
20. In Baldeo Sahai v. Ram Chander and Ors. AIR (1931) Lahore 546 it was held:
"There are two stages relating to documents. One is the stage when all the documents on which the parties rely are filed by them in Court. The next stage is when the documents are proved and formally tendered in evidence. It is at this later stage that the Court has to decide whether they should be admitted or rejected. If they are admitted and proved then the seal of the Court is put on them giving certain details laid down by law, otherwise the documents are returned to the party who produced them with an endorsement therein to that effect."
(emphasis supplied)
21. The Division Bench in this case clearly laid emphasis for deciding the question whether document is admitted or rejected when document is tendered in evidence and is sought to be proved by judicial evidence.
22. This question was dealt with by the Supreme Court in a slightly different context in Javer Chand and Ors. v. Pukhraj Surana, . The Apex Court was dealing with a question raised as to the admissibility of document on the ground that it has not been stamped or has not been properly stamped and the impact of Section 36 of Stamp Act. It was observed:
"....Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or ha snot been properly stamped it has to be decided then and there when the document is tendered in evidence. Once the Court rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned the matter is closed. Section 35 is in the nature of a penal provision and has far-reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case..... It is not, therefore, one of those cases where a document has been advertently admitted, without the Court applying its mind to the question of its admissibility. Once a document has bene marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, Section 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction."
23. The argument of the counsel for the respondent is that the observations of the learned Civil Judge which were made during the recording of the statement of PW-3 Geeta Rohtagi for deferring the consideration of admissibility and marking of exhibit at a later stage was not challenged and it had become final. The question whether the document is admissible in evidence or it has been proved or not and required to be put an exhibit mark may be raised by the party at any time after the document has been tendered and judicial evidence to prove it has been led. In fact, this situation will not arise if this matter is dealt with and it is disposed of by the trial court promptly. In certain cases where the situation so warranted, indeed, the question may be deferred to be considered at the final stage and or when the parties so request the court.
24. The question of admissibility of the document has to be decided at the stage when the document is formally tendered in evidence and proved. Deferring a decision on the question of admissibility of the document and making it part of the evidence by marking exhibit mark on it may lead to complication and in many cases result in grave injustice to the party, who tenders the document. If the question of admissibility of the document and making it part of the evidence by marking exhibit mark on it may lead to complication and in many cases result in grave injustice to the party, who tenders the document. If the question of admissibility of the document is deferred to be decided at the time of hearing of final arguments in many case a party may be deprived of an opportunity to cure a curable defect or supply the deficiency. It is for this very reason that the High Court Rules and Order discussed above lay emphasis on prompt disposal of the objection raised to the admissibility of the document and mode of proof. It may work great injustice in some cases if left undecided till the arguments are heard for disposal of the suit. The objection to the admissibility and the proof of the document should ordinarily be not kept pending and this should be decided promptly as and when they are raised, particularly if raised during the recording of the evidence of a witness who is called to prove it. But the objection certainly be disposed of before the date is fixed for hearing of final arguments. The view taken by this Court finds support from the judgment of a Division Bench of this court reported as Sunder Bala and Anr. v. Sandeep Foam Industries Pvt. Ltd. :-
"before we part with the judgment we would like to observe that when appellants desired to prove the duplicate copy of the certificate No. 3/68/9364 of the post office dated 23rd March, 1994 marked as PW 1/9 certifying that the letter sent vide postal receipt No. 4564 dated 13.12.1993 was not received back and was duly delivered, the method and manner of proof was objected to by learned Counsel for the defendant/respondent. The objection was not decided by the Trial Court immediately. The objection with regard to the proof of such vital documents could not and ought not to have been kept pending. Had the objection been decided by the Trial Court at an early stage of the proceedings, the plaintiff-appellant might have taken recourse to remedial measures for proving the said document in accordance with law. Even appellants did not ask that the objection with regard to proof be decided in the first instance. Keeping the objections pending and deciding the same only at the time of delivering final judgment, was not appropriate. Such a practice has to be depreciated.
25. Having regard to the above discussion and the judgment of the Division Bench cited above. I am of the considered view that the learned Civil Judge committed material irregularity in the exercise of jurisdiction in not deciding the question of admissibility of the document marked 'X' and 'Y' and of marking of exhibit mark on them immediately when the dispute was raised or after at least the application was moved by the petitioner making this request.
26. For the reason stated above, the petition is allowed. The order of the trial court by which it has deferred the consideration of the question of admissibility of the documents and marking of exhibit on the documents marked 'X' and marked 'Y' to the stage of final argument is set aside. The trial court is directed to consider this question at an early date. The filing of power of attorney of the respondent dated 31.7.1998 is allowed subject to payment of Rs. 1000/- as costs. But in the circumstances of the case, the parties are left to bear their own costs.