Punjab-Haryana High Court
Jasjit Singh And Another vs Prem Harjit Singh And Another on 28 November, 2011
Civil Revision No. 7219 of 2011 1
..
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Civil Revision No. 7219 of 2011 (O&M)
Date of Decision: November 28th, 2011
Jasjit Singh and another
.... Petitioners
Versus
Prem Harjit Singh and another
.... Respondent
CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK
1.Whether Reporters of local papers may be allowed to see the judgment?
2.Whether to be referred to the Reporters or not?
3.Whether the judgment should be reported in the Digest?
Present Mr. Vikas Mohan Gupta, Advocate,
for the petitioners.
VIJENDER SINGH MALIK, J.
In his suit for declaration to the effect that he is owner in possession to the extent of 1/2 share in property bearing No.XIX-310 (new) and 349 (old), Dr. Sham Singh Road, Ludhiana and that the judgment and decree passed in civil suit No. 20 of 1991 titled Jasjit Singh and Manpreet Singh Vs. Kant Kaur dated 10.10.1991 is null and void and ineffective on his rights, Prem Harjit Singh, the plaintiff, appeared in the witness box and tendered for his examination in chief his affidavit in which he exhibited nine documents from Ex. P3 to P9.
Defendants No.1 and 2, the petitioners, had filed an application for de-exhibiting documents, Ex. P3 to P9 on the ground that those Civil Revision No. 7219 of 2011 2 ..
documents were not per se admissible and were not proved in accordance with the provisions of Indian Evidence Act.
The application has been opposed by the plaintiff claiming the same to be not maintainable. It is also alleged that the same is abuse of the process of law. He has claimed that some documents produced are original while the others are certified copies. The application is claimed to have been filed with malafide intention and it is prayed to be dismissed with special costs.
Hearing learned counsel for the parties, learned Civil Judge (Junior Division), Ludhiana dismissed the application vide order dated 15.10.2011 (Annexure P/4) and it is this order, which is challenged by way of this revision petition brought under the provisions of Article 227 of the Constitution of India by defendants No.1 and 2.
I have heard Mr. Vikas Mohan Gupta, learned counsel for the petitioners and have gone through the record carefully.
Learned trial court has dismissed the application for de- exhibiting documents, Ex. P3 to P9 for four reasons, which are as under:-
1). The cross-examination of the witness, who has exhibited these documents is yet to be conducted.
2). Mere marking of documents as exhibits did not imply that the same would be read into evidence and rather this aspect would be considered when the entire evidence would be appreciated.
3). It is not the objection taken by a party which would determine the admissibility of the documents and Civil Revision No. 7219 of 2011 3 ..
rather it would have to be seen by the court.
4). Objection to the admissibility of the documents was not raised by the party at the time when these documents were filed.
There appears an apparent conflict in the reasoning adopted by learned trial court. On the one hand, learned trial court says that objection was not raised by the party when these documents were filed and on the other hand, she has mentioned that the cross-examination of the witness, who has exhibited these documents is yet to be conducted. The question of prime importance that arises for an answer is as to what is the stage of deciding the objection raised by a party to the admissibility of the documents exhibited by the witness of the other party or the other party himself. Answer to this question can be found in a decision of Hon`ble Supreme Court of India in R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P.Temple and others 2003 (4) R.C.R. (Civil) 705, wherein it is laid down as under:-
"19. The learned counsel for the defendant-respondent has relied on The Roman Catholic Mission v. 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 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 Civil Revision No. 7219 of 2011 4 ..
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 Civil Revision No. 7219 of 2011 5 ..
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 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 admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court."
The law has been made abundantly clear on the point in the aforesaid decision where it is clearly laid down that decision of the objection taken at the time of tendering the document would not only help the party taking objection in excluding the inadmissible document but also the party tendering the same, which may cure the defect pointed out and would not remain under the wrong impression that the documents stand admitted in evidence. The law as laid down above has been followed by this court in Girdhari Lal Vs. Ritesh Mahajan and another 2005 (2) RCR (Rent) 426. It is clearly laid down in this decision that when objections are raised by the other party with regard to admissibility of the documents tendered in evidence by a party, the Rent Controller was obliged to first decide the question of admissibility of the documents Civil Revision No. 7219 of 2011 6 ..
before making endorsement thereon. So, it becomes clear that the decision on the objection has to be taken at the time when the same is raised and it cannot be postponed till the entire evidence in the case is over and the case is finally heard for decision.
However, one question still remains to be answered in this revision petition. Learned trial court has observed that the objection was not raised by the party when these documents were filed. Although, this observation is at conflict with the other observation that cross examination of the witness, who has exhibited those documents is still to be conducted, yet I do not find as to what learned trial court meant to convey by this observation. The documents were not introduced one after the other by the plaintiff during his statement in the court. They were already mentioned in the affidavit and the affidavit was tendered in the court to form examination-in-chief. Soon thereafter, the objection was raised to their admissibility. This question was considered by Hon`ble Andhra Pradesh High Court in T.Arthi Vs. K. Anand Reddy & Ors. 2006(4) CCC 05 (AP), wherein it is laid down as under :-
"10. The ad hoc and provisional identification mark, if any, given to a document, when it was presented along with an affidavit, in lieu of chief-examination, cannot be treated as a step taken by the Court, receiving it in evidence. Therefore, the opposite party would certainly be entitled to raise an objection at the stage of cross-examination. In such an event, Section 36 of the Stamp Act does not get attracted. The reason is that till that point of time, the document cannot be said to have been received in evidence. Hence, the contention raised by the Civil Revision No. 7219 of 2011 7 ..
respondents in this regard cannot be countenanced."
Therefore, the objection to the admissibility of document, which stands introduced in the affidavit tendered as examination-in-chief, could only be raised at the time of cross-examination of the witness introducing those documents. Therefore, the objections to the admissibility of the documents, Ex. P3 to P9 have been raised at appropriate time and the court was not justified in postponing the decision on the objection till the trial was over. Consequently, the impugned order cannot stand the scrutiny of law.
The revision petition is, consequently, allowed. The impugned order is set aside and learned trial court is directed to decide the question of admissibility of the documents, Ex. P3 to P9 before proceeding further with the trial.
(VIJENDER SINGH MALIK) JUDGE November 28th, 2011 som