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50. In such circumstances, referred to above, Mr. Thakkar prays that there being no merit in this second appeal, the same may be dismissed.

ANALYSIS

51. I have given more than a fair idea as regards the rival claims of the parties in the present litigation. I have also talked about the endorsement made by the Trial Court below Exh.35 while giving tentative exhibits to all the documents (xerox copies) relied upon by the plaintiff in support of his claim. I have also taken note of and referred to that part of the observations made by the First Appellate Court as regards the admissibility of the documents relied upon by the plaintiff. One thing is as clear as a noon day that the Trial Court committed a serious blunder in maintaining absolute silence as regards the admissibility of the documents relied upon by the plaintiff. The Trial Court was not only expected but rather obliged in law to discuss as regards the admissibility of the documents while finally appreciating the evidence. In other words, the Trial Court was obliged in law to render its findings as regards the admissibility of the documents, keeping in mind the endorsement below Exh.35, referred to above. The moot question is what would be the legal implication of such a serious lapse?

79. The duty is cast upon every Judge to examine every document that is sought to be marked in evidence. The nomenclature of the document is not decisive. The question of admissibility will have to be decided by reading the document and deciding its nature and classification. Even while recording ex-parte evidence or while recording evidence in the absence of the counsel for the other side, the Court should be vigilant and examine and ascertain the nature of the document proposed to be marked and ensure that it is a document which is admissible. The Court should not depend on the objections of the other counsel before considering whether the document is admissible in evidence or not. Let me give a simple illustration at this stage. Take a case in which although a summons has been served upon the defendant, yet, the defendant fails to appear before the court and oppose the suit filed by the plaintiff. The Trial Court, thereafter, would decide to proceed ex-parte. Could it be said that as the defendant has not appeared, the case of the plaintiff as put up is to be accepted and a decree be drawn in terms of the relief claimed in the plaint? In other words, could it be said that as the defendant has not appeared, the documentary evidence, relied upon by the plaintiff in any form is to be just accepted in evidence and is deemed to have been proved in accordance with law?. The answer to both the aforesaid questions has to be in the negative. The objections as to the admissibility of the documents in evidence may be classified into two classes; (I) an objection that the document which is sought to be proved is itself admissible 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 and 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 later 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. It is the duty of a Court of Law to exclude all irrelevant or inadmissible evidence even if no objection has been taken by the opposite side.

101. On the question of admissibility of the document, the Patna High Court rejected the contention that lack of objection at the initial stage of production of the document would mean that it had been admitted in evidence. It was observed as under:

"The first thing to be observed is that this document was clearly not admissible in evidence at all, but two points have been urged before us. The first is that it was apparently tendered in evidence without any objection at the time by the other side, and this appears from a list of documents put in at the trial including the document in question, against which there is a note to the effect that it was put in without objection, but this is not merely a case of waiving the necessary formality of proof of a particular document, a formality which the parties may possibly agree to waive, it is a question of whether a particular document is in itself admissible as proof at all, and in such cases the law appears to me to be that the mere omission to object to a document which is not in itself admissible as evidence does not constitute that document evidence so as to he available to either party at the trial, and I think it is only necessary to refer to section 5 of the Evidence Act which lays down a very strict rule as to what evidence may be given and what evidence may not in any suit. That section provides that "Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others." The Explanation to the section says: "This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time feeling in force relating to civil procedure." It is clearly the duty of the Judge, apart altogether from any objection by the parties or their Pleaders, to exclude all irrelevant evidence, and in this case had the learned Munsif performed that duty, he would have entirely excluded this document on the ground that it was not admissible. However, it appears to have been tendered and put in evidence. But when be came to deliver his judgment, be certainly rightly decided that the document was not admissible and, therefore, properly rejected it. As I have already stated, it was not competent to the parties to make it evidence merely by reason of some omission to object at the time it was put in evidence. Therefore, I think this appeal must fail be far as that point is concerned."

(iv) Mere admission of document in evidence does not amount to its proof. Therefore, it is the obligation of the Court to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. In other words, the judicial determination as regards the admissibility of the documentary evidence is mandatory.

(v) The objections as to the 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 mod of proof alleging the same to be irregular or insufficient. In the first case, merely because the 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 later 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.