Gujarat High Court
Gujarat Pipavav Port Ltd vs Indo Dutch Business Development Centre ... on 8 February, 2016
Author: S.H.Vora
Bench: S.H.Vora
C/SCA/2306/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2306 of 2013
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GUJARAT PIPAVAV PORT LTD....Petitioner(s)
Versus
INDO DUTCH BUSINESS DEVELOPMENT CENTRE THRO MATTHEW P H
& 1....Respondent(s)
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Appearance:
MR. S.N.SOPARKAR, SR. ADVOCATE for MR DIPEN C SHAH, ADVOCATE
for the Petitioner(s) No. 1
MR SP MAJMUDAR, ADVOCATE for the Respondent(s) No. 1
MR. D.G.SHUKLA, ADVOCATE for MRS VD NANAVATI, ADVOCATE for the
Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 08/02/2016
ORAL ORDER
[1] By way of present petition, the petitioner (original defendant No.1) challenges the order dated 19.01.2013 passed below Exh.40 in Civil Suit No.600 of 1998, whereby the learned trial Judge has directed to exhibit the documentary evidence list at Exh.3, 26 and 27, which are referred and tendered vide Exh. 40 affidavit in evidence by plaintiff.
[2] I have heard the submissions of learned senior advocate Mr.S.N.Soparkar, for learned advocate Mr.Dipen C. Shah, appearing for the petitioner and learned advocate Mr.D.G.Shukla, for learned advocate Mrs.V.D.Nanavati, appearing for respondent No.2.
[3] Briefly stated, the respondent No.1-plaintiff filed a suit Page 1 of 8 HC-NIC Page 1 of 8 Created On Fri Feb 12 02:02:38 IST 2016 C/SCA/2306/2013 ORDER to recover an amount of Rs.13,58,60,120/-towards consultation fees. The petitioner-defendant No.1 filed a written statement denying all the contentions raised in the plaint and further specifically denied the existence of agreement dated 25.09.1992 and the performance of any obligation by the respondent No.1-plaintiff. It appears that after filing of the written statement in the year 1999, the plaintiff produced documents by list Exh.26 and 27 almost after a period of 13 years whereas affidavit in lieu of examination in chief came to be filed by respondent No.1- plaintiff on 28.04.2012 vide mark as Exh.40. In the examination in chief, by way of affidavit, the respondent No.1- plaintiff referred to the documents produced at list Exh.3, 26 and 27. By way of application Exh.46, the petitioner-original defendant No.1 objected to the admission/exhibition of the said documents and filed objections as to the proof and admissibility of the said documents.
[4] It appears that both the parties to the suit vehemently argued before the Court about proof and admissibility of the above documents and cite various case laws before the learned trial Court. The learned trial Court made a specific observation that mere marking an exhibit and objection as to admissibility is not excluded and it is available to be raised at a later stage and learned trial Court without considering the each of the documents independently and separately, came to the conclusion that the provisions of Evidence Act regarding mode of proof stands fulfilled and therefore, all the documents referred and tendered by the witness by way of affidavit evidence vide Exh.40 were ordered to be exhibited. Before matter is considered on merits, it is relevant to reproduce Page 2 of 8 HC-NIC Page 2 of 8 Created On Fri Feb 12 02:02:38 IST 2016 C/SCA/2306/2013 ORDER observations made by Hon'ble Apex Court in the case of Shalimar Chemical Works Limited v/s. Surendra Oil and Dal Mills, reported in (2010) 8 SCC 423 and more particularly para-10 thereof and the same is reproduced and reads as under:-
"10. Mr. Rao submitted that the provision of Order 13, Rule 4 of CPC provides for every document admitted in evidence in the suit being endorsed by or on behalf of the court, and the endorsement signed or initialed by the judge amounts to admission of the document in evidence. An objection to the admissibility of the document can be raised before such endorsement is made and the court is obliged to form its opinion on the question of admissibility and express the same on which opinion would depend, the document being endorsed admitted or not admitted in evidence. In support of the submission he relied upon a decision of this Court in R.V..E.Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and another 2003 (8) SCC 752 (paragraph 20) where it was observed as follows:
"20...... 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 when 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 latter 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 Page 3 of 8 HC-NIC Page 3 of 8 Created On Fri Feb 12 02:02:38 IST 2016 C/SCA/2306/2013 ORDER 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 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 latter 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 a superior Court."
[5] Similarly, decision cited by learned advocate Mr.D.G.Shukla in case Hemendra Rasiklal Ghia v/s. Subodh Mody, reported in 2008(6) Maharastra Law Journal 886 and more particularly paras-90, 91 and 92, which read as under:
"90. So far as Question-B relating to the stage at which objection to the admissibility or relevancy of evidence contained in the affidavit of evidence filed under Order XVIII Rule 4 of C.P.C. is no more res integra in view of the three Judge Bench judgment of the Apex Court in the case of Ameer Trading Corpn. Ltd. (supra), wherein the Court ruled as under:
"..... If any objection is taken to any statement made in the affidavit, as for example, that a statement has been made beyond the pleadings, such an objection can always be taken before the court in writing and in any event, the attention of the witness can always be drawn while cross-examining him. The defendant Page 4 of 8 HC-NIC Page 4 of 8 Created On Fri Feb 12 02:02:38 IST 2016 C/SCA/2306/2013 ORDER would not be prejudiced in any manner whatsoever if the examination-in-chief is taken on an affidavit and in the event he desires to cross-examine the said witness he would be permitted to do so in the open Court........." (Emphasis supplied)
91. The reading of the aforesaid extracted portion would go to show that the Apex Court has clearly ruled that if any objection is to be taken to the statement made in the affidavit, then such objection should always be taken before the court in writing and the attention of the witness should always be drawn while cross-examining him. In other words, it is not necessary to decide the objections relating to admissibility or relevancy of evidence contained in the affidavit filed under Order XVIII Rule 4 of C.P.C.
as they arise. The determination or decision thereon can be deferred to a later stage of the suit. However, final decision must be recorded before the Court proceeds to judgment. The irrelevant evidence brought on record can always be excluded as the question of admissibility of evidence is a question of law. Even the objection that a piece of evidence which was considered by the judgment was irrelevant can be taken up for first time in appeal (see Miller v. Madhodas, Madhodas 23 Ind App 106 (PC). In Narhari v. Ambabai, Ambabai AIR 1920 Bom 244, it was held that erroneous omission to object to irrelevant evidence does not make the evidence relevant. Section 33 of the Evidence Act deals with relevancy and not with the mode of evidence. If the evidence is irrelevant, consent of parties cannot make it relevant. Thus, more first convenient mode is to admit the objection in the instance, reserving question of law as to its admissibility until final judgment in the case.
Conclusions :
92. In view of the above analysis of the statutory provisions and our discussion, we, accordingly, articulate our conclusions as follows:
Answer to Question-A :
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 Page 5 of 8 HC-NIC Page 5 of 8 Created On Fri Feb 12 02:02:38 IST 2016 C/SCA/2306/2013 ORDER which admissibility is not in dispute must be taken and judicially determined when it is marked as exhibit;
(iii) Objection to the document which in itself is inadmissible in evidence can be admitted at any stage of the suit reserving decision on question until final judgment in the case.
The Court trying the suit or proceedings as far as possible is expected to decide the admissibility or proof of document as indicated hereinabove. As we have already added a word caution that while exercising discretion judiciously for the advancement of the cause of justice for the reasons to be recorded, the Court can always work out its own modality depending upon the peculiar facts of each case without causing prejudice to the rights of the parties to meet the ends of justice and not to give the handle to either of the parties to protract litigation. The aim should always be to prevent miscarriage of justice and expedite trial, which is the dire need of the time.
Answer to Question-B :
The objection to the admissibility or relevancy of evidence contained in the affidavit of evidence filed under Order XVIII Rule 4 of C.P.C. can be admitted at any stage reserving its resolution until final judgment in the case as held in Ameer Trading Corpn. Ltd v/s. Shapoorji Data Proceesing Ltd. (supra).
[6] Considering the submissions made at bar and principles settled by the Hon'ble Apex Court and Division Bench of Bombay High Court in cases cited at bar, it appears that the learned trial Judge has not considered the objections produced at Exh.46 and has not recorded the finding as to whether particular document is admissible in evidence and admitted the documents produced with mark-3, 26 and 27 on the ground that the mode of proof is fulfilled by the witness who has filed affidavit in evidence Exh.40 and passed the order to exhibit the documents annexed with the above lists.Page 6 of 8
HC-NIC Page 6 of 8 Created On Fri Feb 12 02:02:38 IST 2016 C/SCA/2306/2013 ORDER From bare perusal of impugned order, there is no room of doubt that impugned order is unreasoned order inasmuch as the learned trial Judge has not considered the admissibility of each of the documents independently and separately in light of provision contained in Evidence Act about admissibility of documents alongwith mode of proof of each of the documents on the basis of evidence so far led before the learned trial Court. The learned trial Judge while considering the issue of proof and admissibility of the documents, it requires to be bare in mind that the principles settled by the Hon'ble Apex Court in case of Shalimar Chemical Works Limited (supra) and Hemendra Rasiklal Ghia (supra), which is not done in the present case.
[7] In light of this position, the present petition requires to be accepted and impugned order dated 19.01.2013 passed below Exh.40 in Civil Suit No.600 of 1998 is hereby quashed and set aside with a direction to the learned trial Judge to decide Exh.40 afresh and pass appropriate order after examining the each of the documents and its admissibility into evidence as per provision contained in Evidence Act including mode of proof in light of principles settled by the Hon'ble Apex Court and Bombay High Court in the case laws referred hereinabove. The learned trial Judge shall pass such order as expeditiously as possible but not later than two weeks from the date of receipt of copy of this order. It is made clear that the the Court has not examined admissibility of any of the documents in evidence and therefore, the learned trial Judge shall consider the same after hearing both the sides and pass afresh order as per law. After fresh decision on application below Exh.40, the learned trial Judge shall proceed with the Page 7 of 8 HC-NIC Page 7 of 8 Created On Fri Feb 12 02:02:38 IST 2016 C/SCA/2306/2013 ORDER hearing of the suit and decide the suit as expeditiously as possible but not later than six months from the date of afresh order below Exh.40 since the suit is filed way back in the year 1998. The parties to the suit are directed to co-operate with the learned trial Judge and shall not seek unnecessary adjournments.
[8] In view of the above observation and direction, the present petition stands disposed of. Notice is discharged.
(S.H.VORA, J.) siddharth Page 8 of 8 HC-NIC Page 8 of 8 Created On Fri Feb 12 02:02:38 IST 2016