If the document is produced for the cross-examination of the witness of the other party, the document could be used for cross-examination if the original is produced in the Court. In the present case the copy of the document i.e. the reply to the notice of the Gram Panchayat was already there. The original document was with the defendant's counsel and was shown in the Court but the trail court observed that it is not necessary to produce the document when its copy was already on the record, as secondary evidence could also be availed of. It is really curious how the secondary evidence could be produced when the original was available and was on the file of the defendant's counsel. To that extent, the observations of the trial court are wholly unwarranted. No secondary evidence could be produced when the original exists and is available for production in the Court.
Rajasthan High Court
Pukh Raj vs Gram Panchayat Sanchore on 12 March, 1978
Equivalent citations: 1978 WLN UC 55
Bench: M Joshi
1. These two revision application's arise out of the same suit and as most of the facts in them are common, they are being disposed of by a common judgment.
2. The revision applications arise out of a suit for permanent injunction filed by the plaintiff petitioner against the defendant-non-petitioner, restraining the defendant from interfering with the possession of the plaintiff in respect of certain piece of land. According to the plaintiff the land in question was purchased by his father on 27th of April, 1887 and since then he and his father have been in continuous possession of it as owner. In the written, statement the defendant took the plea that the land in dispute on which his cabin exists is on a khalsa land belonging to the Gram Panchayat Various other pleas were taken by the defendant in his written statement with treed not be mentioned here. The trial court after framing the issues posted the cost for evidence of the plaintiff. The plaintiff's statement was recorded on commission. During the course of the cross-examination the defendant's counsel confronted the plaintiff with his reply which is alleged to have been submitted by the plaintiff in response to the notice of the Gram Panchayat Sanchone on 24th of September, 1962. An objection was taken by the plaintiffs counsel that the original documents having not been produced on the first date of hearing before the settlement of issues could not be taken on record at that stage. The objection was made in writing and so the cross-examination of the plaintiff was kept reserved. This objection was over-ruled by the trial court. It observed that it was not necessary for the defendant to produce the original document in Court, and the same could be shown for the purpose the refreshing his memory. This order is dated 5-10-77 on which dated the case was adjourned to 14-10-1977. This order is being challenged by way of a revision and is the subject matter of the revision application No. 205 of 1977. On 14.10.77 as has been stated earlier the case was posted for the evidence of the plaintiff. It may be mentioned here that on 6.10.77 the plaintiff had applied for a certified, copy of the order dated 5.10.77 on urgent fees.
When the case came up in the Court on 14.10.77, an application was submitted on behalf of the plaintiff under Section 151 CPC stating that the plaintiff desired to prefer a revision against the order dated 5.10,77 on the. High Court and so he may be granted time otherwise if at all he filed revision the same will become, infructuous. He therefore prayed for reasonable time. The learned Munsif refused to grant the time. When the case was called, the plaintiff was not present in the Court. He closed the cross-examination of the plaintiff. The learned Munsif while passing order on 14.10.77 that bailable warrants be issued against the plaintiff's witness on filing the process fee further directed that the plaintiff should get bailable warrants served by himself. As specific direction was also given that in default the evidence of the remaining witnesses would be closed and the case was adjourned to 26th of October, 1977 for the examination of the plaintiff's remaining witnesses. It may be noted here that while passing he order dated 14.10.77, the trial court further directed the plaintiff to come to Court on 17.10.77 for taking the delivery of the bailable warrants to be served on his witnesses. After that order was made an application was moved on behalf of the plaintiff that he is going to Jodhpur for preferring a revision and he may not be able to appear in the Court for taking delivery of the warrants on 17.10.77 and so the time in that behalf may be extended. The learned Munsif did not concede to this request of the plaintiff and rejected the application. The plaintiffs feel dissatisfied with order dated 14.10.77 also whereby his evidence was closed and certain directions were issued application No. 204 of 1977.
3. So far as revision application No. 205 of 1977 challenging the order dated 5.10.77, I may straightaway say that there is no substance in the revision. It is true that the original document should be produced under Order 13 Rule 2 CPC, before the striking to the issues but under the amended Code of Civil Procedure under Order Rule CPC is not necessary to produce the document before the striking of issues. If the document is produced for the cross-examination of the witness of the other party, the document could be used for cross-examination if the original is produced in the Court. In the present case the copy of the document i.e. the reply to the notice of the Gram Panchayat was already there. The original document was with the defendant's counsel and was shown in the Court but the trail court observed that it is not necessary to produce the document when its copy was already on the record, as secondary evidence could also be availed of. It is really curious how the secondary evidence could be produced when the original was available and was on the file of the defendant's counsel. To that extent, the observations of the trial court are wholly unwarranted. No secondary evidence could be produced when the original exists and is available for production in the Court.
4. The other contention of Mr. Lodha is that the trial court was wrong in observing that the production of the original was not necessary under the amended provisions of Code of Civil Procedure under Order 13 Rule 2 CPC. There is substance in this contention. It is true that the document could be produced for cross-examination of the witnesses of the other party, even after the settlement of the issues' but the production of the document will nevertheless be necessary. But there is no difficulty as Mr. Arora appearing on behalf of the defendant undertakes that while using the document in the cross-examination, the same shall be produced in the court. In view of the matter I do not see any valid justification for invoking my revisional jurisdiction. The revision application No. 205/77 is therefore, dismissed with the above observations.
5. I now take the revision application No. 204/77. I have heard the learned Counsel for the parties. Having heard them I am clearly of the opinion that the order dated 14.10 77 suffers from severe infirmity & deserves to be set aside. It is not disputed that the plaintiff had attended the court on 4.10.77 and he had moved two application out of which one was subsequent to the passing of the order wherein he had stated that he will not be able to attend on 17.10.77 as he intended to go to Jodhpur for filing the revision. The case was fixed for completion of the cross-examination of the plaintiff and the court should not have closed the evidence in hot haste when the cross-examination of the plaintiff was only to be completed.
6. It has next been contended by Mr. Lodra that the trial court had committed material irregularity in directing the plaintiff to get the warrants served 'dasti' and in default the remaining evidence of the plaintiff shall be closed. This order is also wholly erroneous and is not in consonance with the well established procedure laid down in the Code of Civil Procedure. A Party cannot be called upon to serve warrant upon the witnesses. The service of the warrant should be through the agency of the court itself and it cannot be left to a private party. Such a direction therefore, being wholly erroneous is quashed.
7. The further direction for directing the plaintiff to attend on 17.10.77 in the court for collecting the warrants is equally erroneous and unsustainable in law. It is for the Court's bailiff to collect the warrants and effect service on the persons. It is none of the duty of the party to effect the service of the warrants. In view of the foregoing discussion the revision application No. 264 of 1977 deserves to be accepted and is hereby accepted. The trial court is directed to complete the cross-examination of the plaintiff. The plaintiff is further directed to take effective steps to produce his evidence so that the ease may not linger any further.
8. In the facts and circumstances of the ease the parties are left to bear their own costs in both the revisions.
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