Gujarat High Court
Bharatbhai Jivrajbhai Babadia vs Chhaganbhai Samabhai (Since Deceased) ... on 28 September, 2017
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/6615/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6615 of 2017
With
CIVIL APPLICATION NO. 8533 of 2017
In
SPECIAL CIVIL APPLICATION NO. 6615 of 2017
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BHARATBHAI JIVRAJBHAI BABADIA
Versus
CHHAGANBHAI SAMABHAI (SINCE DECEASED) & 5
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Appearance:
MS JAYANI SHAH, ADVOCATE FOR SHASHVATA U SHUKLA, ADVOCATE
for the Petitioner
NOTICE SERVED BY DS for the Respondents No.1.1-1.7,2,3.1-3.3,4-5
UNSERVED-REFUSED (N) for the Respondent No. 6
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 28/09/2017
ORAL ORDER
1. The petitioner, the original plaintiff has come with the present petition under Article 227 of the Constitution of India challenging the order dated 16.03.2017 passed by the learned Principal Senior Civil Judge, Ahmedabad (Rural) below application Exhibit 148 in Special Civil Application No.492 of 2007.
2. As per the case of the petitioner, the petitioner has filed the above suit seeking specific performance of the contract in respect of the registered agreement for sale dated 25.08.2005. In the proceedings of the suit, the petitioner filed application Exhibit 85 for production of the documents as per the list Exhibit 86. Relying on the judgment of the Hon'ble Supreme Court in the case of Bipin Shantilal Panchal Vs. State of Gujarat, reported in 2000 (3) GLR 2024 = AIR Page 1 of 12 HC-NIC Page 1 of 12 Created On Sat Oct 07 08:10:21 IST 2017 C/SCA/6615/2017 ORDER 2001 SC 1158, the learned trial Judge passed the order dated 14.08.2014 to give exhibit numbers to the documents with the objections of the defendants and to decide on probative value of the documents at the time when the suit is to be finally decided.
3. The petitioner tendered his affidavit of chief-examination referring all the documents produced with the list at Exhibit 86 and filed application Exhibit 148 with a prayer to pass an order on the objections of the defendants - respondents (if any) in respect of the contents of the documents, stated to be duly proved by him in his affidavit in lieu of the examination in chief, before commencement of the cross-examination. The learned Judge, however, rejected such application by impugned on the reasoning that the petitioner has applied to consider the documents as duly proved without considering any objections of the otherside, that the Court is to decide on admissibility of the documents, that whether the documents are duly proved can be considered at the time of final decision of the suit upon hearing the otherside and that every document admitted in evidence can be said to be duly proved only after final arguments and conclusion of the evidence of both the sides.
4. Though served with the notice, the respondents have not appeared.
5. Learned advocate Ms.Jayani Shah appearing for learned advocate Ms.Shashvata Shukla for the petitioner submitted that after the documents were produced with the list Exhibit 86, they were given tentative exhibit numbers in view of the Page 2 of 12 HC-NIC Page 2 of 12 Created On Sat Oct 07 08:10:21 IST 2017 C/SCA/6615/2017 ORDER decision of the Hon'ble Supreme Court in the case of Bipin Shantilal Panchal (supra). She submitted that with such tentative exhibit numbers and without deciding as to the admissibility of the documents, if the suit is finally decided, the petitioner will be put to prejudice if any of the documents referred in the affidavit of chief-examination is not read in evidence. Ms.Shah submitted that before deciding on admissibility of any document or on proof of contents thereof, since the objections of the opposite party are to be considered, the Court is to first decide on such objections so that the party relying on the documents produced can cure the defect as to admissibility of the documents by following procedure of law especially under the Evidence Act before consideration of the evidence of the parties for final decision in the suit.
6. The Court having heard learned advocate Ms.Shah finds that the exhibit numbers given to the documents by order dated 14.08.2014 were tentative by relying on the judgment in the case of Bipin Shantilal Panchal (supra) wherein the Hon'ble Supreme Court has held and observed in para-12 to 15 as under.
12. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the Court does not proceed further without passing Order on such objection. But the fall out of the above practice is this: Suppose the trial Court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or revisional Court, when the same question is re-canvassed, could take a different view on the admissibility of that material in such cases the appellate Court would be deprived of the benefit of that evidence, because that was not put on record by the trial Court. In such a situation the higher Court may have to send the case back to the trial Court for recording that evidence and then to dispose of the case afresh. Why Page 3 of 12 HC-NIC Page 3 of 12 Created On Sat Oct 07 08:10:21 IST 2017 C/SCA/6615/2017 ORDER should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re- moulded to give way for better substitutes which would help acceleration of trial proceedings.
13. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.
14. The above procedure, if followed, will have two advantages. First is that the time in the trial Court, during evidence taking stage, would not be wasted on account of raising such objections and the Court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior Court, when the same objection is re-canvassed and reconsidered in appeal or revision against the final judgment of the trial Court, can determine the correctness of the view taken by the trial Court regarding that objection, without bothering to remit the case to the trial Court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.
15. We, therefore, make the above as a procedure to be followed by the trial Courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence.
7. Thus, even as per the judgment in the case of Bipin Shantilal Panchal (supra), the Court is to decide on the objection before considering the documents either to admit in evidence or not. Therefore, the questions as to the admissibility of the documents or as to proof of the contents of the documents, could not be left unresolved.
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8. In fact, when the learned trial Judge passed order on 14.08.2014 below application Exhibit 85, it was observed that the documents were given exhibit numbers with objections of the otherside and the probative value of the documentary evidence shall be decided at the time when the suit is finally decided. Such would mean that the objections of the opposite party against reading of the documents in evidence are to be first decided.
9. In the case of Saifuddin Saheblal Vazir Vs. Smt. Habjabai Mishra Patel and another, reported in AIR 2003 Bombay 36, the Bombay High Court has held and observed in paras-8 to 11 as under.
8. Before considering the rival contentions in the matter it will also be worthwhile to glance through the following provisions of Code of Civil Procedure relevant for the decision in the matter :-
(A) Rule 3 of Order XIII, provides that, "the Court may at any stage of the suit reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection."
(B) Rules 4 and 6 of Order XIII which are very relevant for the decision in the matter read thus :
"4. Endorsements 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 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.
Provided that in proceedings filed in Bombay Civil Court, the endorsement may be signed or initialled by such officer as the Principal Judge may authorise in this behalf.
(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 Page 5 of 12 HC-NIC Page 5 of 12 Created On Sat Oct 07 08:10:21 IST 2017 C/SCA/6615/2017 ORDER or initialled by the Judge.
6. Endorsements on documents rejected as inadmissible in evidence. Where a document relied on as evidence by either party is considered by the Court to be inadmissible in evidence, there shall be endorsement thereon the particulars mentioned in clauses (a),
(b) and (c) of Rule 4, sub-rule (1) together with a statement of its having been rejected, and the endorsement shall be signed or initialled by the Judge.
Provided that in proceedings filed in Bombay City Civil Court the endorsement may be signed by such officer as the principal Judge may authorise in this behalf."
9. Chapter XXVII of the Civil Manual deals with the matters pertaining to the "RECORDS" of the Court and under the heading "DOCUMENTS" it deals with the procedure pertaining to acceptance of documents on record and the manner in which they are to be exhibited or rejected in the course of trial. Accordingly, para 522(1) provides that, "All documents tendered in evidence shall be accompanied by a list in the form given as No. 5 in Appendix - of the first schedule of the Code of Civil Procedure". Para 523 (1) provides that, "As soon as the list is filed, the Bench Clerk should endorse on the back of each document the particulars mentioned in clauses (a),
(b) and (c)of Rule 4(1), Order XIII, Civil Procedure Code."Para 524 to which reference has been made by the learned Advocate for the respondents, read thus, :
"If a document included in the list is referred to in the proceedings before it is tendered in evidence and formally proved, it should be immediately marked for identification. When it is tendered in evidence, it should be detached from the list. If rejected, it should be endorsed as prescribed by O. XIII, R. 6, Civil Procedure Code, and returned. If admitted, the endorsement referred to in the above rule should be completed and signed by the Judge (Order XIII, Rule 4, Civil Procedure Code) and the document should be assigned the appropriate exhibit number and filed in the record and all references to it in the depositions and judgment should bear that number. Every document should be further marked with the letter 'P' or 'D', according as it is tendered by the plaintiff or the defendant. The number assigned to each document should be endorsed on the list of documents mentioned above."
10. Considering the provisions of law referred to above, it is difficult to agree with the submission by the learned Advocate for the petitioner that any document admitted and exhibited in terms of Rule 4, can be thereafter rejected under Rule 6 of Order XIII of C. P. C. The contention, that exhibition of a document in evidence has nothing to do with the reading of the document in evidence has to be rejected. A document can be exhibited in evidence only when such a document is admissible in evidence and not otherwise. This is abundantly clear from the provisions of law contained in Rules 4 and 6 of Order XIII read with Para 524 of the Civil Manual. In fact, provisions of law contained in Rule 4 are to be read with the Rule 6 Page 6 of 12 HC-NIC Page 6 of 12 Created On Sat Oct 07 08:10:21 IST 2017 C/SCA/6615/2017 ORDER of Order XIII of C. P. C. cannot be considered to be referable to two different stages. The question of exhibiting the document under Rule 4 can arise only if the document is found to be admissible in evidence and in case it is not admissible, the same is to be rejected in terms of Rule 6 of Order XIII read with para 524 of Civil Manual. Rule 4 of Order XIII speaks of admission of document in evidence and not merely exhibition of document. Rule 6 of Order XIII nowhere speaks about revocation of the order passed by the Court under Rule 4 of Order XIII.
11. It was sought to be argued on behalf of the petitioner with reference to the obligation for endorsement on the document under Rule 4 and Rule 6, that it would disclose that occasion for exercising power under Rule 6 of Order XIII would arise only after endorsement in the nature specified under Rule 4 of Order XIII. The argument is to be rejected as being devoid of substance. The reference to the endorsement in terms of clauses (a), (b) and (c) of Rule 4 and Rule 6 is for the purpose of identifying the document which has been admitted or rejected, as the case may be. Once a document is sought to be produced in the evidence and is admitted or rejected, there has to be some endorsement on such document disclosing the number of suit, person who has sought to produce the document and the date on which it was sought to be produced and admitted or rejected. Such endorsements assume more importance in case of rejection of documents to avoid unscrupulous attempt on the part of the person, who had earlier sought to produce such document, but had not succeeded and thereby avoid unnecessary inconvenience to the parties as well as to the Court so that the document with endorsement is clearly identifiable and there would be no scope left to the party for any such unscrupulous attempt.
10. Rule 4 of Order XVIII provides for recording of evidence and as per the proviso to Sub-Rule (1) of Rule 4, the proof and the admissibility of the documents which are filed along with the affidavit shall be subject to the orders of the Court. Thus, the Court is to decide on proof and admissibility of the documents filed along with the affidavit of chief-examination. Marking the document as exhibit with objection is since tentative exhibit number, the Court is to decide the question as to the admissibility of the document marked by tentative exhibit number whether to confirm the exhibit numbers for its admissibility in evidence before the opposite party is allowed to take cross examination of the party producing such Page 7 of 12 HC-NIC Page 7 of 12 Created On Sat Oct 07 08:10:21 IST 2017 C/SCA/6615/2017 ORDER document.
11. In the case of F.D.C. Ltd Vs. Federation of Medical Representatives Association India (FMRAI) and others, reported in AIR 2003 Bombay 371, the Bombay High Court has held and observed in para-19 as under.
19. As regards the evidence in relation to documents, undoubtedly, though such documents are produced along with the affidavits the admissibility thereof is to be decided in accordance with the provisions of law contained in Order 13, Rule 4 thereof. Such decision has necessarily to be at the time of taking the affidavit along with such documents on record and before such documents are being marked as exhibits in evidence as has already been held by this Court in unreported decision in the matter of Durgashankar S. Trivedi v. Shri Babubhai Bhulabhai Parekh in Writ Petition No. 7094 of 2002 decided on 22nd January, 2003*. *Reported in (2003) 2 Mah LJ 576.
12. In the case of Durgashankar S. Trivedi and others Vs. Babubhai Bhulabhai Parekh reported in AIR 2003 Bombay 487 (1), the Bombay High Court has held and observed in paras-8 to 10 as under:
8. The production of documents along with the affidavit will not make any difference as far as the procedure to be followed by the Court in the matter of admitting and exhibiting such documents in evidence. It is to be borne in mind that Rule 4 of Order XVIII does not deal with the procedure relating to admission and exhibition of documents in evidence. It only permits the parties and their witnesses to produce the documents along with affidavit. The production of documents along with affidavits is different from the admissibility and exhibition of such documents in evidence by the Court. It is also to be borne in mind that affidavit relating to examination in chief produced in terms of Rule 4, Order XVIII is to be received in evidence by following the procedure prescribed in Rules 5 and 13 of Order XVIII in appealable and non-appealable cases, respectively. Mere filing of affidavit relating to examination in chief either of the parties to the suit or of their witness will not ipso facto form it to be part of evidence. In order that it should form part of evidence, it has to be dealt with in accordance with the procedure specified under Rule 5 or 13 as the case may be. For example in appealable cases, it would be necessary for the witness to enter the witness box and tender such affidavit confirming that the contents thereof are as per his say and the same are true and Page 8 of 12 HC-NIC Page 8 of 12 Created On Sat Oct 07 08:10:21 IST 2017 C/SCA/6615/2017 ORDER correct and thereafter the affidavit will have to be taken on record by recording the said statement of the witness in the manner prescribed under Rule 5, and in case of non-appealable cases by drawing memorandum of such statement of witness and production of affidavit in terms of Rule 13 of the said order. However, before taking on record the document filed along with such affidavit, it is necessary for the Court to decide about the issue of admissibility of such document and in that connection the procedure prescribed under the provisions of law contained in Order XIII, Rules 4 and 6 of C.P.C. is required to be followed. It is to be noted that Rule 4 of Order XVIII does not speak of exclusion of applicability of the provisions of Order XIII to the documentary evidence sought to be produced by the parties or their witnesses along with their affidavits nor it enables the Court to ignore the provisions of law relating to admissibility of documents in evidence.
9. While allowing the parties to lead evidence in the form of affidavits, the Courts therefore, have to bear in mind that though the parties are entitled to produce documents along with affidavit, the admissibility of such document is to be decided by the Court before documents are being exhibited in evidence and the decision cannot be postponed till the final disposal of the case or any time after the documents are exhibited in accordance with Order XIII, Rule 4 of C.P.C. The objection to the admissibility of the document should be dealt with and decided at the time the affidavit with documents is produced and being taken on record.
10. The admissibility of the document cannot be established by mere filing of the affidavit by the parties but the documents are necessarily required to be tendered by the deponent, while allowing the other side to have an opportunity to contest the admissibility of the document and an appropriate decision of the Court on such contest by the parties is necessary. Undoubtedly, this decision has to be prior to exhibition of the documents in evidence as already stated above. Merely because under Rule 4 of Order 18 the parties are allowed to produce documents along with affidavit, it cannot be construed that such documents are to be exhibited without testing the admissibility of such documents. In fact, proviso to sub-rule (1) of Rule 4 of C.P.C. itself discloses that the Court has to decide about the admissibility of documents before they are being exhibited in the evidence.
13. The purpose behind such provision is to decide it finally as to the proof and admissibility of the documents produced with the affidavit of chief-examination so that before final decision of the suit if any document is not allowed to be admitted in evidence on objections of the otherside, the party producing and relying on the document can have an opportunity to cure Page 9 of 12 HC-NIC Page 9 of 12 Created On Sat Oct 07 08:10:21 IST 2017 C/SCA/6615/2017 ORDER the defect by following legal procedure if so permissible.
14. In the case of R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P. Temple and another reported in (2003) 8 SCC 752, the Hon'ble Supreme Court has held and observed in para-20 as under:
20. The learned counsel for the defendant-respondent has relied on the Roman Catholic Mission v. State of Madras and another, 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 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 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 Page 10 of 12 HC-NIC Page 10 of 12 Created On Sat Oct 07 08:10:21 IST 2017 C/SCA/6615/2017 ORDER 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 superior Court.
15. In above view of the matter, the Court finds that the learned Judge has misdirected himself on the question as to the consideration of the objections of the opposite party. What the petitioner meant by application Exhibit 148 was that if the opposite party - respondents have any objection against considering the documents produced by him in evidence, the Court may pass order on the objections of the opposite party. Thus, the petitioner wanted that the Court should first decide the objections of the opposite party raised against the proof and admissibility of the documents produced by the petitioner. As stated above, when documents were given exhibit numbers, they were tentative exhibit numbers with objections of the opposite party and, therefore, now when the affidavit of chief-examination is given by the petitioners referring the said documents, the stage has come to consider the objections of the opposite party to decide whether the documents referred by the petitioner in his affidavit of chief examination could be admitted in evidence or not.
16. In above view of the matter, the impugned order dated 16.03.2017 passed by the learned Principal Senior Civil Judge, Ahmedabad (Rural) below application Exhibit 148 in Special Civil Application No.492 of 2007 is quashed and set aside. The application Exhibit 148 is allowed. The learned Judge shall now decide on the objections of the opposite party as to the admissibility of the documents referred by the petitioner in his affidavit of chief and only, thereafter, the learned Judge shall Page 11 of 12 HC-NIC Page 11 of 12 Created On Sat Oct 07 08:10:21 IST 2017 C/SCA/6615/2017 ORDER proceed to decide the suit. The petition stands disposed of finally at the notice stage.
17. Since the main petition is disposed of, the Civil Application shall not survive. Hence, the Civil Application stands disposed of accordingly.
Sd/-
(C.L.SONI, J.) vijay Page 12 of 12 HC-NIC Page 12 of 12 Created On Sat Oct 07 08:10:21 IST 2017