Madras High Court
Annasami Naidu vs Karunakaran on 16 June, 2005
Author: R. Banumathi
Bench: R. Banumathi
ORDER R. Banumathi, J.
1. This revision is directed against the fair and decretal order made by the learned District Munsif, Sirkali, dated 23.6.2003 in I.A. No. 279/2003 in O.S. No. 435/ 1995, allowing the petition filed under Or.13, R.3 and 6, rejecting Ex.A-9 - Chitta extract, which has already been admitted through DW-4.
2. Facts necessitated for this revision could briefly be stated thus:-
Suit O.S. No. 435/1995 relates to S. No. 125/2 - Punja 0.09.0 Hectare, equivalent to about 27 cents. Case of the Plaintiff is that the suit property is the ancestral property and the Plaintiff has inherited the same from his father Ragava Naidu. After the death of his father, the Plaintiff has been in possession and enjoyment of the suit property by raising punja crops, coconut and mango trees. The Plaintiff has been paying the kist receipts. The Defendants have no manner of right in the suit property. When the Plaintiff attempted to mend the fence, the Defendants have prevented him from carrying out any repairs in the suit property. Hence the Plaintiff has filed the suit for Permanent Injunction restraining the Defendants from in any manner causing interference to his possession and enjoyment.
3. Denying the averments in the plaint, D-2 and D-10 have filed Written Statement contending that they are in possession and enjoyment of the suit property to an extent of 22 cents. According to the Defendants, they are in possession of S. No. 125/1 wherein they have put up brick klin, along with S. No. 125/1. The Defendants are in enjoyment of the suit property in S. No. 125/2. Even if the Plaintiff has got any right in the suit property, the same is lost by ouster. The Defendants have been in possession and enjoyment of the suit property for a continuous period of more than 28 years and have perfected title by way of adverse possession also. The UDR Patta alleged by the Plaintiff must have been obtained by fraudulent means and the same has no binding effect on the Defendants' enjoyment of the suit property.
4. I.A. No. 279/2001 :-
This application was filed under Or.13 R.3 and 6 to reject Ex.A-9 Patta Adangal already marked through PW-4. Ex.A-9 is the Chitta issued by Village Administrative Officer. Earlier an application was filed to recall PW-1 to mark the chitta was dismissed by the Court. While so, it is alleged that the Plaintiff has colluded with D-7 and has clandestinely marked Ex.A-9 by examining D-7 as DW-4 during his cross examination. Ex.A-9 was happened to be marked when the Defendant's counsel was not in Court. The Defendants came to know about the same only on 4.4.2003. Since the document has been admitted, the petition was filed praying that Ex-9 is liable to be rejected.
5. Opposing the application, the Plaintiff has filed the Written Statement contending that it is the duty of the Defendants and their Advocate to be present at the time of cross examination of the defence witness. Plaintiff and their Advocate were not diligent in defending their case. Ex.A-9 having been admitted, D-10 is precluded from questioning the admissibility of the document.
6. Upon consideration of the contentions of both parties, the learned District Munsif has allowed the application rejecting Ex.A-9 already marked. Pointing out the dismissal of the earlier application to recall PW-1 to mark Ex.A-9, the learned District Munsif has found that marking of Ex.A-9 during the cross examination of DW-4 is improper. Finding that marking of Ex.A-9 was not in accordance with the provisions of Civil Procedure Code, the learned District Munsif has allowed the application and rejected Ex.A-9 under Or.13 R.3 CPC.
7. Aggrieved over the allowing of the petition in I.A. No. 279/2003 and rejecting Ex.A-9 Chitta, which has already been admitted, the revision Petitioner/Plaintiff has preferred this revision.
8. The learned counsel for the Revision Petitioner has submitted that the lower Court having admitted the documents was not right in rejecting the document Ex.A-9. Contending that under Or.13, R.3 that a document could be rejected only on the grounds of irrelevancy or inadmissibility, the learned counsel has submitted that Ex.A-9 Chitta Extract is not a relevant document and the lower Court has erred in rejecting the same. It is further submitted that irregularities in the mode of admission of the document cannot be the ground for rejecting the document which was already admitted.
9. Drawing the attention of the Court to the averments in the Written Statement, the learned counsel for the Respondent submitted that the Plaintiff has deliberately excluded the Defendants 5 to 7, who are unnecessary parties to the suit. It is further contended that in collusion with D-7, the Plaintiff has marked Ex.A-9 adopting the tactics of marking the documents during the course of cross examination of D-7, who was examined as DW-4. The learned counsel has further submitted that when the petition to recall PW-1 earlier filed, was rejected at the admission stage, the Petitioner was not right in trying to indirectly introduce the document marking during the course of cross examination of DW-4. It is also contended that taking note of the same, the trial Court has rightly rejected Ex.A-9 and that the impugned order does not suffer from any material irregularity, warranting interference.
10. Upon consideration of the submissions by both parties, impugned order and other materials on record, the following points arise for consideration in this revision.
1. After admission of the document, can the document be rejected as inadmissible ?
2. Whether the impugned order rejecting the document on the ground of irregular mode of marking is sustainable ?
11. Ex.A-9 Chitta is said to have been issued by the Village Administrative Officer and not by the competent Revenue Authorities. Even at the outset it is to be pointed out that Ex.A-9 issued by the Village Administrative Officer may not have probative value. For marking Ex.A-9, earlier, petition was filed to recall PW-1, which application was rejected even in the admission stage. Thereafter, while D-7 was in the box, during his cross-examination, Chitta extract was marked through him as Ex.A-9. Ex.A-9 was rejected by the lower Court mainly on the grounds:
(i) Ex.A-9 was produced by some other persons and has to be returned to the person who produced the same;
(ii) Chitta is not forming part of the Court records;
(iii) Such marking of Ex.A-9 during the cross-examination of DW-4 is contradictory to the provisions of Civil Procedure Code, prejudicially affecting the Defendants.
12. The propriety and the correctness of the above findings is to be considered in the light of the provisions of Civil Procedure Code. Or.13 R.3 deals with rejection of irrelevant or inadmissible documents.
13. Or.13. R.3 reads:
"The Court may at any stage of the suit reject document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection."
14. Or.13 R.6 deals with endorsement of documents rejected as inadmissible in evidence. Both Or.13 R.3 and R.6 do not deal with rejection of admitted document. Admissibility of the document is the discretion of the Court. The Court has a duty to receive the relevant and admissible evidence and to exclude all irrelevant or inadmissible evidence. The documents once admitted subsequently found to be irrelevant or otherwise inadmissible can be rejected under Or.13 R.3 CPC. But this discretion is to be exercised sparingly in the facts and circumstances of the case. Such discretion may be exercised, say for instance :-
*** Where insufficiently stamped documents have been admitted (which are inadmissible under Sec.35 of the Stamp Act);
*** Where unregistered document which are required to be registered under section 17 of the Indian Registration Act have been admitted (which are inadmissible under section 49 of the Indian Evidence Act);
*** Wherein registered lease deeds have been admitted (which are inadmissible in evidence);
*** Where there has been erroneous omission to object any admissible evidence.
The above instances are only few illustrative examples and not exhaustive.
15. In the instant case, Ex.A-9 is sought to be rejected on the ground that when the document was marked during cross-examination of DW-4, D-10's counsel was not present in Court and hence could not raise any objection. Further the learned District Munsif pointed out that the earlier application to recall PW-1 to mark Ex.A-9 was rejected even in the admission stage. It was observed, it was not proper on the part of the Plaintiff to mark Ex.A-9 indirectly through PW-4. By careful consideration, it is seen that the objection mainly seems to be only as to the mode of proof or irregularity of the exhibition than accepting the document. Or.13 R.3 deals only with rejection of irrelevant or inadmissible documents; Or.13 R.3 cannot be invoked to reject the document on the ground of irregularity in the mode of proof or on the ground that opportunity was not available to the Defendant's counsel. Merely because there had been omission to object by the Defendant's counsel, document once admitted cannot be rejected. If such course is adopted, it would only pave the way for filing of such objections in a number of cases, raising objection in one way or other, as to the documents already marked and seeking to reject the admitted documents. The learned District Munsif was not right in rejecting Ex.A-9 which has already been admitted on the objection or irregularity raised by the Defendants.
16. Or.13 R.2 invests in Court, discretion to accept documents particularly those which are above suspicion, even though not produced at the first hearing. Court's duty is to exclude all irrelevant or inadmissible evidence even if no objection is taken by the party.
17. At the time of marking Ex.A-9, even though no objection was raised, the Court had the duty to look into Ex.A-9. It is said that Ex.A-9 was not issued by the Tahsildar but by the Village Administrative Officer and hence the same cannot be received in evidence. But that cannot be the reason for rejecting the document which has already been admitted in evidence. Proper course would have been to make an endorsement in Ex.A-9 as "marked subject to objection". Or.13 R.4 deals with the endorsement of documents admitted in evidence. On such endorsement of admission, the Court ought to have made endorsement, "subject to objection". The learned District Munsif erred in passing the elaborate order and rejecting the documents.
18. The Supreme Court in the decision made in 2001 (2) SCC 1, has disapproved such practice of passing elaborate order regarding admissibility or otherwise of the document and inviting the parties to move the higher forum.
19. One of the reasons pointed out for rejecting Ex.A-9 is that the document ought to be returned to the person who has produced it. It is stated that D-7 had obtained Ex.A-9 Chitta issued by the Village Administrative Officer. Perhaps, the lower Court was under the impression that the document ought to be returned to the person who has produced it. The reason that the document is to be returned to the person who produced it cannot be the ground for rejecting Ex.A-9. Under Civil Rules of Procedure, procedure is contemplated for returning original of the admitted documents. Such an admitted document could be returned by substituting the certified copy. The party who is marking the document could apply for certified copy and those certified copy could be substituted for original. That is why the procedure is contemplated in directing the parties to deposit the cost whenever the originals are being called for or marked. If the party calling for the document/ marking the document does not take steps to substitute the document, the Court itself could take the certified copy, defraying expenses from the cost deposited and substitute that certified copy and return the original document. The reasoning of the lower Court that the document ought to be returned to the person who produced it cannot be sustained.
20. The learned counsel for the respondents mainly urged that Ex.A-9 was obtained by D-7 who is in collusion with the Plaintiff. Drawing the attention of the Court to the averments in the Written Statement filed by D-2 and D-10, the learned counsel has submitted that D-2 and D-10 have already taken the plea that D-5 to D-7 are unnecessary parties. On those averments, the learned counsel for the respondent has submitted that D-5 to D-7 have been deliberately implicated as parties to bolster the contentions of the Plaintiff and in that way, the Plaintiff in collusion with D-7 has marked Ex.A-9. It is also the contention of the Respondents that D-7 has no right in the property and Ex.A-9 marked through him was rightly rejected by the lower Court. The collusion of Plaintiff and D-7 and other Defendants or otherwise, is a matter for consideration at the conclusion of the trial. It is the contentious point to be determined in appreciation of evidence. The scope of enquiry in this revision is limited to the extent of finding out the propriety or the correctness of the rejection of admitted document Ex.A-9. The point of collusion urged by the Respondents cannot be considered at this stage.
21. The above observations are made only in the light of the irregularity in the mode of rejection of the admitted document Ex.A-9. It is said that Ex.A-9 was issued by the Village Administrative Officer. It is well known that any Chitta or Adangal issued by the Village Administrative Officer might have no probative value. However the evidentiary value attached to Ex.A-9 could be considered only at the trial stage, while the Court is appreciating the evidence along with the oral evidence. The fact that Ex.A-9 was issued by the Village Administrative Officer cannot be the ground for rejecting Ex.A-9 in the initial stage, after admitting the same.
22. The learned counsel for the Respondent has raised objection regarding the maintainability of this revision. This revision filed under 115 CPC on 29.7.2003. After the amendment of CPC, Amendment Act 1999, (with effect from 1.7.2002) the revisional jurisdiction cannot be invoked as against the orders passed in interlocutory application which are not in the nature of finality. The order passed in I.A. No. 279/2001 rejecting Ex.A-9 may not have the nature of finality. However, in view of the material irregularity in the order of the Court below, this Court in exercise of the control of superintendence has to interfere with the order. The interest of justice would be met by converting this revision under section 115 CPC to that of revision under Art. 227 of the Constitution of India and directing the revision Petitioner/Plaintiff to pay the deficit Court fee thereon.
23. The impugned order suffers from material irregularity and hence this revision is to be allowed. However, in view of the serious objection raised by D-10, the trial Court is directed to make an endorsement in Ex.A-9 as "marked subject to objection". The objection regarding evidentiary value of Ex.A-9 is to be considered at the conclusion of the trial while the Court is appreciating the entire evidence. With that direction this revision is allowed.
24. For the reasons stated above, the fair and decretal order of the learned District Munsif, Sirkali, dated 23.6.2003 in I.A. No. 279/2003 in O.S. No. 435/1995 is set aside and this revision is allowed. The learned District Munsif Sirkali is directed to restore the document Ex.A-9 as part of the admitted document with endorsement "marked subject to objection". The Revision Petitioner Plaintiff is also directed to substitute the original of Ex.A-9 with the certified copy.
25. For the reasons stated in para(22), the revision Petitioner is directed to pay the deficit Court fee payable under Article 227 of the Constitution of India within fifteen days from the date of receipt of a copy of this order. In the circumstances of the case, there is no order as to costs.