Law Web: Leading judgment on exhibition of documents

The question presented in these cases require us to resolve two conflicting lines of precedents on the one hand, as the Court stress that "it is necessary for Court to decide about admissibility of documents before they are exhibited in evidence". On the other, some of the learned Judges of this Court have no less categorically said that admissibility of evidence and proof of document should be reserved until judgment in the case is given.

In view of the above analysis of the statutory provisions and our discussion, we, accordingly, articulate our conclusions as follows:

Answer to Question-A :

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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 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 :

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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. Shapoorji Data Processing Ltd. (supra).

Bombay High Court

Mr.Hemendra Rasiklal Ghia vs Subodh Mody on 16 October, 2008

Bench: V.C. Daga, P.V. Kakade

CORAM: SWANTANTER KUMAR, C.J.

V.C.DAGA, J. AND

V.M.KANADE, J.

DATED: 16th October 2008.

Citation;2008 (6)MH L J (FB)886

Contextual Facts :

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2. It is not necessary to sketch the detailed contextual facts of all cases placed before us. Suffice it to refer two sets of precedents reflecting conflicting opinions giving rise to the present reference.

3. In Writ Petition No.1902/05, the petitioners, who are original defendants, have objected to the order dated 12th January, 2005 by which the learned trial Judge has marked 126 documents as exhibits with the following directions:

"All the documents relied upon by the plaintiffs in the list of documents from

Sr.No.1 to 126 are marked as Exhibits subject to production & proof thereof, under the

Evidence Act."

The above order has been made in respect of the documents tendered along with affidavit of evidence - 4 -

filed by the respondents (original plaintiffs). The admissibility has been objected by the petitioners (original defendants). It was the principal contention of the learned counsel for the petitioners that the objection to the admissibility of these documents which were mainly books which refer to religious practice of a particular set, are so voluminous that it is not possible for the petitioners to determine which document should be made subject of cross-examination and which may not, having regard to the fact, the Court has exhibited the said documents tentatively subject to proof.

4. The learned counsel for the petitioners submitted before the learned single Judge that the cross-examination as regards all documents would be fruitless, in case it is eventually held that the documents are inadmissible. Therefore, the submission of the learned counsel was that it was imperative and also in accordance with the procedure prescribed by law that the admissibility of these documents ought be decided at the stage at which the objection to their being exhibited is taken.

5. In the another writ petition, being Writ Petition No.623 of 2005, the petitioner is a defendant. He has been sued for damages in respect of - 5 -

certain allegedly defamatory statements. The petitioner therein has objected to the admissibility and relevance of the evidence tendered by the respondent in the examination-in-chief by way of affidavit under Order XVIII Rule 4 of the Code of Civil Procedure ("C.P.C." for short). The trial Court ruled that the question whether or not a particular statement is relevant or admissible cannot be gone into before cross-examination of the witness and can be considered finally at a later stage.

6. Being aggrieved by the above order, the petitioner invoked writ jurisdiction of the learned Single Judge and pressed into service the grounds similar to those in Writ Petition No.1902/2005. According to the learned counsel, pending decision as to the admissibility and relevance of the statements in the affidavit of evidence, it was difficult for the petitioner (original defendant) to decide whether to cross-examine the witness as to those statements, which were objected to as inadmissible.

7. One view, relied upon by the learned counsel for the petitioners in the above petitions was as reflected in two decisions of the learned single Judges of this Court, one rendered by Shri R.M.S.Khandeparkar, J. (as he then was) in - 6 -

Durgashankar v. Babubhai, 2003 (2) Mh.L.J. Babubhai 576 and the other rendered by Dr.D.Y.Chandrachud, J. in Bharat R. Desai v. Naina M. Bhal 2004 (2) Bom.C.R.

695. In these cases, having regard to the provisions of Order XIII and Order XVIII of C.P.C. the two learned single Judges have held that while allowing the parties to lead evidence in the form of affidavits, if objected to, the admissibility of documents must be decided by the Court before the documents are exhibited in evidence and that decision cannot be postponed to a later stage such as the final disposal of the case. These judgements relied upon the judgements of the Supreme Court referred to therein.

8. The other view relied upon by the learned counsel for the respondents in both these petitions was as reflected in the decisions of a learned single Judge of this Court in Boman P. Irani v. Manilal P. Gala, AIR 2004 Bom.

Gala 123 decided by Shri S.J.Vazifdar, J. wherein the learned single Judge relied upon the observation of the Supreme Court in Bipin Shantilal Panchal v. State of Gujarat, AIR Gujarat2001 SC 1158,

reiterated in another judgment in the case of State v. Navjot Sandhu,

Sandhu (2003) 6 S.C.C. 641; wherein the Court was pleased to hold that the documents in question may be taken on record and marked as exhibits - 7 -

tentatively subject to the objections raised by the defendants for decision at the last stage in the final judgement on the preliminary issue. A similar view, albeit in relation to the evidence recorded by a Commissioner has been expressed by another single Judge, Shri S.U.Kamdar, J. (as he then was), in Oil and Natural Gas Corporation Ltd. v. FPU Tahara and Anr.,

Anr. (Notice of Motion No.1609 of 2005 in Admiralty Suit No.54 of 1999) decided on 24.6.2005 (unreported).

9. Having regard to the conflicting views of the learned single Judges of this Court and having regard to the importance of question, learned single Judge of this Court (Shri S.A.Bobde, J.) found it necessary to refer the following question for decision by a larger bench in accordance with Rule 7 of Chapter I of the Bombay High Court (Appellate Side) Rules.

"Whether objections as to the admissibility or mode of proof of evidence, oral and documentary, should be decided upon when raised or whether decisions thereon can be

deferred to a later stage?"

10. Before turning to the question referred, it is necessary to recapitulate the rival submissions canvased before us.

- 8 -

Rival Submissions :

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11. Mr.D.S.Parikh, learned senior counsel appearing with Mrs.Sujata Mahadgad for the petitioner (in W.P.No.623/05) in his well search submissions reiterated the view taken by the learned single Judges in the cases of Durgashankar (supra) and Bharat R. Desai (supra) and urged that the provisions of Order XIII of C.P.C. and the Civil Manual are indicative of the legal position that the objection to the admissibility, relevancy or proof of documents produced in evidence should be decided at the time when such documents are tendered in evidence and should not be left for decision at the stage of final arguments in the suit.

12. Mr.Parikh submitted that the Supreme Court has held in the case of R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P.Temple and Anr., Anr.

(2003) 8 SCC 752 that under Order XIII Rule 4 of C.P.C. every document admitted in evidence in the suit has to be endorsed by the Court, which endorsement required to be signed or initialled by the Judge amounts to admission of the document in evidence. That an objection to the admissibility of the document should be raised before such endorsement is made and the Court is obliged to form its opinion - 9 -

on the question of admissibility and express the same on which opinion would depend the document being endorsed as admitted or not admitted in the evidence.

13. Mr.Parikh while canvassing the effect of Order XVIII Rule 4 of C.P.C. submitted that juxtaposition and the context of the proviso of sub-rule (1) of Rule 4 of Order XVIII indicates that the question of admissibility and proof of the documents filed along with the affidavit of examination-in-chief should be decided by the Court, when the affidavit of examination-in-chief is taken on record by the Court. While placing reliance on proviso to sub-rule (4), he submits that the said sub-rule is also indicative of the two stages at which the admissibility, relevancy and proof of documents have to be considered, viz.; (i) the stage when documents are tendered or produced with the affidavit of examination-in-chief of a witness, and (ii) the stage when documents are tendered or produced in the course of cross-examination and re-examination of a witness. According to him, the proviso to sub-rule (1) of Rule 4 lays down that proof and admissibility of documents filed by a witness along with his affidavit of examination-in-chief shall be decided by the Court, before the next step is taken that of appointment of the Commissioner by the Court for recording the - 10 -

cross-examination and re-examination of the witness. In his submission, after the Commissioner records the cross-examination and re-examination of the witness, including the objections raised by either party during the course of such examination, the Commissioner submits his report to the court. Such objections have to be decided by the Court "at the stage of arguments" as provided in the proviso to Order XVIII Rule 4(4) of C.P.C.

14. Mr.Parikh, after having described the role of provision of Order XVIII Rule 4 of C.P.C., went on to reiterate that it is a settled principle of law that question of admissibility should be decided then and there. He pressed into service the views expressed by Wardroof and Amirali in Law of Evidence 17th Edition (Volume 1 Page 674) to buttress his submissions.

15. Mr.Parikh also referred to some of the judgments of the Privy Council, the Hon'ble Supreme Court and various High Courts including this Court in support of his submission, the detailed reference of which at this stage is not necessary since reference to them is being made in the later part of this judgment.

16. Mr.V.C.Kotwal, learned counsel urged that - 11 -

exclusion of evidence at the stage when the objection is raised would not only save time but expedite disposal of the suits or proceedings. He submits that if the decision on the objection as to admissibility or mode of proof of documentary evidence and relevancy of oral and documentary evidence is allowed to be postponed to stage of judgment then in that event public policy would clearly be flouted.

17. Mr.Kotwal in support of his submission pressed into service various provisions of the Indian Evidence Act and tried to cull out legislative intent leading to public policy. According to him, the Parliament in its wisdom has quite specifically refrained from making any changes in the Evidence Act and in particular the sections thereof which on a correct interpretation require that evidence of the type mentioned in sections 4, 5, 21, 66, 91, 92, 93 and 123 of the Evidence Act is required to be excluded and are not allowed to be given or brought on record. He further submits that even the Law Commission in its 157th report did not recommend any change in law of evidence. Significantly, the Commission has not even referred to the case of Bipin Shantilal Panchal (supra) in its report. In his submission, judgment of the Apex Court in the case of Bipin Shantilal Panchal - 12 -

(supra) does not take into account public policy of excluding evidence which is irrelevant and inadmissible. He, thus, supported the submission canvassed by Mr.Parikh.

18. The aforesaid submission canvassed by Mr.Parikh and Mr.Kotwal are supported by M/s. V.R.Dhond and M.H.Advani.

Per Contra :

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19. Mr.S.G.Aney, learned senior counsel appearing with Mr.S.V.Mhatre in his usual persuasive manner supported the view taken by two learned single Judges of this Court in the case of Boman P. Irani (supra) and Oil and Natural Gas Corporation Ltd. (supra), contending that their views are based on Supreme Court judgments one in Bipin Shantilal Panchal and other in State v. Navjot Sandhu (cited supra) and shall go a long way in curtailing delay in disposal of suits.

20. In the submission of Mr.Aney, the judgment of the Apex Court in Bipin Shantilal Panchal (supra) is by larger bench presided over by Justice K.T.Thomas and applies to both civil as well as criminal cases. - 13 -

He submits that this judgment binds all subordinate courts including this Court.

21. Mr.Aney heavily relied upon the view taken by the learned single Judge in the case of Boman P. Irani (supra) and went on to submit that the decision on the objection should be postponed till the final hearing so that the trial should not be hampered. He submits that the affidavit of evidence tendered on record should be accepted subject to objections and the documents should also be allowed to be marked as exhibits subject to objections to be considered at the last stage in the final judgment. According to him, his submission is in consonance with the Statement of Objects and Reasons of the Civil Procedure Code Amendment Act, 2002 whereby Order XVIII Rule 4 was introduced. In his submission, para 3(e) of the Statement of Objects and Reasons suggests that the whole object is to reduce the delay in the trial. If the object of the amendment was to avoid delay in final disposal, then the decision of the Supreme Court in Bipin Shantilal Panchal (supra) needs to be applied to civil cases and the practice prescribed therein should be followed. Mr.Aney, thus, tried to support the view leading to postponement of the decision till the final hearing of the suit with regard to the admissibility or mode of proof of evidence or - 14 -

relevancy of oral and documentary evidence tendered in the suit.

22. The aforesaid submissions canvassed by Mr.Aney are supported by Mr.N.Y.Gupte, learned counsel appearing in the companion matter.

23. Mr.Z.T.Andhyarujina, learned counsel appearing for the defendants in Testamentary Suit No.19/1999 tried to carve out a middle path contending that there is no mandate in law that the objections must be decided at a particular stage. However, in his submission, generally, it is desirable that the objections must be decided at the earliest. He submits that in some deserving cases involving complicated questions of law, it may, however, be desirable that the decision on the objection may be deferred to a later stage. He, thus, submits that practical approach must be adopted by the courts. He submits that while deciding the issue as to whether to hear objections to evidence immediately or to defer such decision, the courts must consider the effect of such decision both on the party producing the evidence and other parties to the proceeding.

24. Mr.Andhyarujina urged that the advantages of entertaining and deciding objections at the outset are - 15 -

many. For instance, it enables the party producing the evidence to know whether it will be able to prove a fact based on the evidence produced, or whether he would be required to produce further or other evidence. It also enables the party cross-examining the witness to know whether or not he is required to cross-examine the witness on a particular document produced or a statement made in the affidavit of evidence. In the event, party elects to cross-examine on such document he will no longer be entitled to raise any objection to the same. On the other hand, if he does not cross-examine the witness on such document, and the document is eventually admitted into evidence, the same would remain unrebutted. Deferring the ruling on objections also works unfairly upon the party producing the evidence, as he has no opportunity to introduce fresh evidence, in the event of the evidence produced being held to be inadmissible.

25. Mr.Andhyarujina, thus, submits that weight of authorities, however, suggests that it is salutary that the objections must be decided at the earliest opportunity. In short, he submits that it is not desirable to lay down any hard and fast rule as to at which stage the Court should decide admissibility or mode of proof or relevancy of documentary and/or oral evidence. He submits that it should be left to the - 16 -

discretion of the Judge trying the suit.

26. Before embarking upon the rival contentions of the parties, we may notice relevant statutory provisions.

Relevant Statutory Provisions :

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27. In order to understand and appreciate this question referred; and to come to the conclusion as to what proper answer should be to this question, few relevant statutory provisions of C.P.C., Civil Manual need to be noticed at the outset.

C.P.C. :

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Rule 3 of Order XIII of C.P.C. 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.

Rules 4 and 6 of Order XIII which are very much relevant for the decision in the matter read thus:

"4.

4. Endorsement on documents admitted in evidence.- (1) Subject to the provisions

evidence of - 17 -

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 document,

and

(d) a statement of its having been so

admitted;

and the endorsement shall be signed or initialled by the Judge.

(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 of the endorsement thereon shall be signed or initialled by the Judge.

Provided that in proceedings in the Bombay City Civil Court, the endorsement may be signed or initialled by such officer as the Principal Judge may authorise in this behalf. Or, in the case of a High Court, by an officer in Court under the order of the Judge or one of the Judges.

Provided that where the Court is satisfied

that the document, not endorsed in the manner laid down in the above rule, was in fact,

admitted in evidence, it shall treat the

document as having been properly admitted in evidence unless non-compliance with this rule has resulted in miscarriage of justice.

6. Endorsements on documents rejected as

inadmissible in evidence.- Where a document evidence.

relied on as evidence by either party is

considered by the Court to be inadmissible in evidence, there shall be endorsed 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 - 18 -

the Judge.

Provided that in proceedings filed in the

Bombay City Civil Court the endorsement may be signed by such officer as the Principal Judge may authorise in this behalf.

Order XVIII Rule 4 of C.P.C. is also one of the relevant provisions for deciding the question referred. Dissection of the said provision would show-

(1.1) that sub-rule (1) of rule 4 provides that the examination-in-chief of a witness

shall be on affidavit. The proviso thereto

provides that where documents are filed or

relied upon by the parties, the proof and

admissibility of such documents shall be subject to the orders of the Court.

(1.2) Sub-rule (2) of rule 4 provides that the evidence by way of cross-examination and re-examination of the witness shall be recorded by the Court or by the Commissioner appointed by the Court.

(1.3) Sub-rule (4) thereof provides that the Commissioner may record remarks as to the

demeanour of the witness under examination. The proviso thereto lays down that any objections raised during the recording of

evidence before the Commissioner shall be

recorded by him and decided by the Court at the stage of arguments.

(1.4) Sub-rule (5) thereof provides that the report of the Commissioner shall be submitted to the Court appointing the commission.

(1.5) Sub-rule (6) thereof provides for preparation of panel of Commissioners to record the evidence under this rule.

(1.6) Sub-rule (7) thereof provides for fixation of remuneration for the services of the Commissioner.

- 19 -

(1.7) Sub-rule (8) thereof provides that

provision of rules 16, 16-A,, 17 and 18 of

Order 26 shall apply to the issue, execution and return of such commission under Order 18 rule 4.

(1.8) Order 26 rule 16-A provides for the procedure to be followed by the Commissioner when the question put to a witness is objected by his pleader.

Bombay Civil Manual :

-------------------

The other relevant provisions of Civil Manual are:

(2.2) The Bombay Civil Manual also makes

provision for production and marking of documents as Exhibits. Chapter 27 thereof

contains the following provisions:

Paragraph 552(1). All documents tendered in evidence shall be accompanied by a list in the form given as Nos.5 in Appendix of the First Schedule of the Code of Civil Procedure.

Paragraph 523(1). 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 13, Civil Procedure Code.

Paragraph 524. 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 Order 13 Rule 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 13 Rule 4, Civil Procedure Code) and the document should be assigned the appropriate exhibit number and filed in the - 20 -

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.

Effects of the Amending Act of 2002 :

-----------------------------------

28. Having said so, in order to answer the question referred, it is also necessary to examine what is the effect of amendment made by the Code of Civil Procedure (Amendment) Act, 2002 whereby Order XVIII Rule 4 has been amended. Before the aforesaid provision of amended Rule 4 of Order XVIII is taken into consideration, it will be necessary to consider the brief background which resulted in amendment of the said Rule 4 of Order XVIII.

29. In view of the concern expressed from various quarters over the pending arrears and need to manage the explosion of dockets, suggestions were invited from Committees which were constituted to tackle this problem. Various Committees were formed from time to time which have given their recommendations for curtailing the arrears of pending cases. - 21 -

Sharadchandra Committee as also Malimath Committee's report submitted in 1989-90 had given various reasons and had made various categories of causes, which were responsible for causing delay in disposal of cases in trial courts and other courts. It was stated in the report that maximum time of the trial court was taken in recording of evidence and it was felt that if this work of recording of evidence was given to some other agency, the Court could find more time for disposal of interlocutory applications and for final disposal of cases.

30. In 163rd report of Law Commission of India on the Code of Civil Procedure (Amendment) Bill, 1997 in Chapter-II under the heading "Recommendations and Conclusions Regarding the Code of Civil Procedure (Amendment) Bill, 1997", it is stated in para 2.3 (e) as under:-

"2.3 The Amendment Bill seeks to make some of the following important changes in the Code of Civil Procedure, 1908 (as indicated in the

Statement of Objects and Reasons annexed with the Bill):-

(a) ..... ..... .....

(b) ..... ..... .....

(d) ..... ..... .....

(e) As maximum time is consumed by the

courts in recording oral evidence

- 22 -

which causes delay in disposal of

cases, it is proposed to reduce such

delay by making provisions for filing

of examination-in-chief of every

witness in the form of an affidavit.

For the cross- examination and

re-examination of witnesses, it is

proposed that it shall be recorded by

a commissioner to be appointed by the

court and the evidence recorded by a

Commissioner shall become part of

record of the suit;

(f) ..... ..... .....

(g) ..... ..... .....

(h) ..... ..... .....

(i) ..... ..... .....

(j) ..... ..... .....

3. ..... ..... ....."

It was, therefore, felt that the Commissioner who was empowered to record statements of witnesses under Order XXVI under certain exceptional circumstances, should be given the power to exclusively record the evidence of witnesses. This was taken into consideration in the Bill which was submitted in 1997 and, accordingly, the Code of Civil Procedure (Amendment) Act, 1999 was passed and section 27 of the said Amendment Act of 1999 brought the amendment in Order XVIII Rule 4.

31. This amendment was not given effect to since protest was raised by the members of the Bar - 23 -

throughout the country and, subsequently, the Code of Civil Procedure (Amendment) Act, 2002 was brought into force on 1st July, 2002 and Order XVIII, Rule 4 was amended by virtue of the Code of Civil Procedure (Amendment) Act, 2002, S.12(b). In Order to examine the effect and purpose of the amendment which was made in 2002, it may be necessary to briefly examine the Code of Civil Procedure (Amendment) Act, 1999 so that the intention of the Legislature can be ascertained by the amendment which was brought into force in 2002 by the Code of Civil Procedure (Amendment) Act of 2002. The Code of Civil Procedure (Amendment) Act, 1999, by Section 27, amended Order XVIII, Rule 4 in the following manner.

"27. In the First Schedule, in Order XVIII,- (i) sub-rule (4) of rule 2 shall be omitted; (ii) for rule 4, the following rule shall be substituted, namely:-

"4. (1) In every case, the evidence of a

witness of his examination-in- chief shall be given by affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence.

(2) The evidence (cross- examination and re-examination) of the witness in attendance, whose evidence (examination-in-chief) by affidavit has been furnished to the court

shall be taken orally by a commissioner to be appointed by the court from amongst the panel of commissioners prepared for this purpose on the same day:

. Provided that, in the interest of - 24 -

justice and for reasons to be recorded in

writing, the court may direct that the evidence of any witness shall be recorded by the court in the presence and under the

personal direction and superintendence of the judge.

(3) The commissioner shall be paid such sum for recording of evidence as may be prescribed by the High Court.

(4) The amount payable to the commissioner

under sub-rule (3) shall be paid by the Court or by the parties summoning the witness as may be prescribed by the High Court.

(5) The District Judge shall prepare a panel of commissioners to record the evidence under this rule.

(6) The commissioner shall record evidence

either in writing or mechanically in his

presence and shall make a memorandum which

shall be signed by him and the witness and

submit the same to the court appointing such commissioner.

(7) Where any question put to a witness is

objected by a party or his pleader and the

commissioner allows the same to be put, the commissioner shall take down the question

together with his decision.

(iii) rule 17A shall be omitted;

(iv) after rule 18, the following rule shall be inserted, namely:-

"19. Notwithstanding anything contained in these rules, the court may, instead of examining witnesses in open court, direct

their statements to be recorded on commission under rule 4A of Order XXVI."

This amendment was not brought into force and, subsequently, the Code of Civil Procedure (Amendment) Act, 2002 was passed whereby by section 12(b), Order - 25 -

XVIII Rule 4 was amended in the following manner. "12. In the First Schedule, in Order XVIII,- (a) ..... ..... .....

(b) for rule 4 [as substituted by clause (ii) of section 27 of the Code of Civil Procedure (Amendment) Act, 1999], the following rule

shall be substituted, namely:-

"4.(1) In every case, the examination- in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence:

Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed alongwith affidavit shall be subject to the orders of the Court.

(2) The evidence (cross- examination and re-examination) of the witness in attendance, whose evidence (examination-in-chief) by affidavit has been furnished to the Court

shall be taken either by the Court or by the Commissioner appointed by it:

Provided that the Court may, while appointing a commission under this sub-rule, consider

taking into account such relevant factors as it thinks fit:

(3) The Court or the Commissioner, as the case may be, shall record evidence either in writing or mechanically in the presence of the Judge or of the Commissioner, as the case may be, and where such evidence is recorded by the Commissioner, he shall return such evidence together with his report in writing signed by him to the Court appointing him and the

evidence taken under it shall form part of the record of the suit.

(4) The Commissioner may record such remarks as it thinks material respecting the demeanour of any witness while under examination:

Provided that any objection raised during the - 26 -

recording of evidence before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments.

(5) The report of the Commissioner shall be submitted to the Court appointing the commission within sixty days from the date of issue of the commission unless the Court for reasons to be recorded in writing extends the time.

(6) The High Court or the District Judge, as the case may be, shall prepare a panel of

Commissioners to record the evidence under

this rule.

(7) The Court may by general or special order fix the amount to be paid as remuneration for the services of the Commissioner.

(8) The provisions of rules 16, 16-A, 17 and 18 of Order XXVI, in so far as they are

applicable, shall apply to the issue, execution and return of such commission under this rule."

[Emphasis supplied]

32. From the perusal of the amendment which was sought to be introduced in 1999 and the actual amendment which was brought into force in 2002, it can be noticed that several changes were made in the amendment which was proposed in 1999. Firstly, it can be seen that after Order XVIII Rule 4(1), a proviso has been incorporated which was not there in the earlier amendment and the proviso also has been added to Order XVIII Rule 4 sub-clause (4). The aforesaid first proviso to Rule 4(1) and the second proviso to Rule 4(4) clearly reveals the intention of the Legislature. Whereas, in the earlier amendment of - 27 -

1999, the intention of the Legislature was to delegate the work of recording of evidence entirely to the Commissioner who would be appointed for the purpose of recording of evidence. The Code of Civil Procedure (Amendment) Act, 2002 makes a departure and gives discretion to the Court to either record the cross-examination itself or depute that work to the Court Commissioner. At the same time, proviso to sub-rule (1) of Rule 4 clearly indicates that the Court alone is empowered to decide the question of proof and admissibility of documents. Whereas, so far as objection raised during recording of evidence before the Commissioner is concerned, proviso to sub-rule (4) of Rule 4 clearly stipulates that the said objection could be determined by the Court at the time of final hearing of the case. The present amendment brought about by the Code of Civil Procedure (Amendment) Act, 2002, therefore clearly tries to reconcile the earlier position and vests a discretion in the Court of deciding the question of admissibility of documents before the case is sent to the Commissioner for recording the cross-examination. The purpose and intention of the Legislature, therefore, is very clear. It is apparent that after having noticed that large time of the Court is taken in recording oral evidence of the witnesses, it was thought fit to delegate this work to the Commissioner - 28 -

by expanding the powers of the Commissioner which are given under Order XXVI and further amendment to Order XIX, Rules 1 and 2 gives ample power to the Commissioner to record the evidence. At the same time, since the Commissioner is not competent to decide the question of proof and admissibility of documents and evidence, discretion is given to the Court, either to decide this issue before sending the matter to the Commissioner for recording of cross- examination or decide this issue after the report is submitted by the Commissioner. It will have to be noted here that if the objects and reasons of the Code of Civil Procedure (Amendment) Act are noticed, it can be seen that the entire procedure prescribed for hearing and disposal of the suits has been overhauled and, therefore, the Commissioner is supposed to give a report within a period of sixty days and the period for extension of time which is to be given to the Commissioner has to be by recording reasons by the Court.

33. Apart from the amendment which is made to Order XVIII Rule 4, it is also necessary to take into consideration the effect of other amendments which have been made to the provisions of the Code of Civil Procedure by the Code of Civil Procedure (Amendment) Act, 2002. The first amendment is in respect of Order - 29 -

VII Rule 14 wherein it is provided that the plaintiff shall produce documents which are in his possession in support of his claim along with the plaint and also state which document is not in his possession and further state, where possible, in whose possession and power it is. Sub-clause (3) provides that any document which ought to have been produced by the plaintiff along with the plaint is not so produced then it shall not be permitted without the leave of the Court to be received in evidence at the hearing of the suit. Similar amendment was made in the provisions of Order VIII Rule 1-A which is a provision regarding filing of Written Statement by the defendant. In order to give effect to these amendments consequential amendments have been made. Consequently, Order XIII Rule 1 has been amended. Order XVIII Rule 19 states that the Court may, instead of examining the witnesses in open court, direct that their statements may be recorded on commission under Rule 4-A of Order XXVI. Order XXVI Rule 4-A states that the Court may direct the Commissioner to record the evidence of any person resident within the local limits of its jurisdiction.

34. All the aforesaid provisions have been inserted in order to ensure that there is a quick disposal of the cases. The documents, therefore, are - 30 -

to be produced by the plaintiff and by the defendant along with the plaint or written statement. The original documents are to be produced before the settlement of issues under Order XIII. Notice to admit documents is to be given under Order XII and under Rule 2-A of Order XII, the document is deemed to be admitted if not denied after service of notice to admit documents. Under Order XIII Rule 3, the Court has a power to reject the irrelevant or inadmissible documents.

The Questions for Determination :

-------------------------------

35. Having heard various learned counsel appearing for the parties, we propose to answer the question, after taking review of the law holding the field but slightly amending and splitting it in two parts for the sake of convenience to answer. The question, as reframed/amended, will read as under:-

Question-A.

At which stage, the objection to the admissibility and/or proof of document which may be produced or tendered should be raised; raised

considered and decided by the Court?

Question-B.

At which stage, an objection to the - 31 -

admissibility or relevancy of evidence contained in the affidavit filed under Order XVIII rule 4 of C.P.C. should be considered and decided by the Court?

The Rulings/Authorities :

-----------------------

36. In order to understand and appreciate the reframed questions and to come to a conclusion as to what the proper answers to the questions should be, it is necessary to look at some of the relevant judgments holding field.

37. One of the oldest judgment of the Privy Council in the field is in the case of Jadu Rai v. Bhubotaran Nandy,

Nandy 16 Indian Appeals 148 = 17 Cal 173/186; wherein it is observed as under: " I would further add, that I think the practice of admitting evidence and reserving the question of its admissibility for further consideration, is unwise and much to be regretted. If the evidence is once admitted, it is impossible to say what its effect may be on the mind of the person who hears it; and I think it most [187] desirable that the question of admissibility should be finally decided when the objection to questions is

taken."

38. The above view has been followed in several cases by various High Courts including High Courts of Madras and Andhra Pradesh. [see (1955) 1 Madras Law - 32 -

Journal 457 (A.Devasikamani

A.Devasikamani Goundar v. Andamuthu Goundar) and AIR 1957 Andhra Pradesh 60 (N.S.Sastri v. Goundar N.S.Sastri N.Lakshmidevamma) .

N.Lakshmidevamma

39. The Privy Council in another judgment in the case of Gopal Das v. Sri Thakurji, AIR 1943 Thakurji PC 83

held that the objection to the mode of proof must be taken before document is marked and not in appeal for first time. Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof.

40. In Zaver Chand v. Pukhraj Surana, AIR 1961 SC Surana

1655, a document was tendered which was not properly stamped. Objection was raised as to admissibility thereof. The Court held that the question has to be decided there and then when the document is tendered in evidence. It was further held that once the Court rightly or wrongly decides to admit the document in evidence, the matter is closed so far as the parties are concerned. It was held that the Court has to - 33 -

determine the matter judicially as soon as the document is tendered in evidence and before it is marked as an Exhibit in the case.

41. In the case of R.V.E. Venkatachalam Gounder (supra), the Apex Court ruled as under:

"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 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 enable the party tendering the evidence to

cure the defect and resort to such mode of

proof as would be regular."

42. In the case of Ram Ratan v. Bajarang Lal, AIR Lal

1978 SC 1393, the Supreme Court observed as under: - 34 -

"The Court, and of necessity it would be trial court before which the objection is taken

about admissibility of document on the ground that it is not duly stamped, has to judicially determine the matter as soon as the document is tendered in evidence and before it is

marked as an exhibit in the case and where a document has been inadvertently admitted without the Court applying its mind as to the question of admissibility, the instrument could be said to have been admitted in evidence with a view to attracting S.36."

43. In the case of Smt.Dayamathi Bai v. K.M.Shaffi, AIR 2004 SC 4082, the Apex Court following its earlier view in R.V.E.Venkatachalam Gounder (supra), Roman Catholic Mission v. State of Madras, Madras

AIR 1966 SC 1457 and Gopal Das v. Sri Thakurji (supra) reiterated that the objection to be taken at trial before document is marked as an 'exhibit' and admitted to record. In the said judgment, the Supreme Court also referred to Sarkar on Evidence 15th Edition, page 1084; wherein it is stated that if copies of the documents are admitted without objection in the trial Court, no objection to their admissibility can be taken afterwards in the court of appeal.

44. In the case of Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865, the Apex Court ruled that mere marking of a document as an exhibit does not dispense with its proof.

- 35 -

45. In the case of Ramanuj Rai v. Dakshineshwar Rai,

Rai AIR 1926 Cal. 752, the Court ruled that where there is any objection to the admissibility of an evidence, a final decision on the objection must be recorded before the Court proceeds to judgment.

46. The weight of the aforesaid authorities suggests that the objection to the admissibility of evidence should be raised by the objector and decided by the Court at the earliest opportunity. The same view has been reiterated by the learned single Judges of this Court in Bharat R. Desai v. Naina M. Bhal (supra) and Durgashankar v. Babubhai (supra).

47. We now propose to proceed to refer to the judgments of the Apex Court taking little different view on the very same issue while dealing with the case arising out of criminal trial.

48. In the case of Bipin Shantilal Panchal (supra) Justice Thomas speaking for the Bench held that- " 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 - 36 -

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.

There is no illegality in adopting such a

course.

However, 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."

49. The aforesaid view finds support in another judgment of the Apex Court in the case of State v. Navjot Sandhu (supra) arising out of criminal trial.

50. While interpreting Rule 4 of Order XVIII, the other amendments also have to be kept in mind and over and above that, it has to be borne in mind that the intention of the Legislature was to curtail the time consumed by the Court in the process of recording of evidence. In Ameer Trading Corpn. Ltd v. Shapoorji Data Processing Ltd., (2004) 1 SCC 702, the Apex Court Ltd.

while interpreting the said provision has taken into consideration Heydon's rule. The Apex Court has made the following observations.

"21. In a situation of this nature, the - 37 -

doctrine of suppression of mischief rule as adumbrated in Heydon's case [(1584) 3 Co Rep 7a : 76 ER 637] shall apply. Such an amendment was made by Parliament consciously and, thus, full effect thereto must be given." "22. In Halsbury's Laws of England, Vol.

44(1), 4th Reissue, para 1474, pp. 906-07, it is stated:

" Parliament intends that an enactment shall remedy a particular mischief and it is therefore presumed that Parliament intends

that the court, when considering in relation to the facts of the instant case, which of the opposing constructions of the enactment corresponds to its legal meaning, should find a construction which applies the remedy provided by it in such a way as to suppress that mischief. The doctrine originates in Heydon's case [(1584) 3 Co Rep 7a : 76 ER 637] where the Barons of the Exchequer resolved that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), for things are to be discerned and considered:

(1) what was the common law before the making of the Act;

(2) what was the mischief and defect for which the common law did not provide;

(3) what remedy Parliament has resolved and appointed to cure the disease of the commonwealth; and

(4) the true reason of the remedy;

and then the office of all the judges is always to make such construction as shall:

(a) suppress the mischief and advance the remedy; and

(b) suppress subtle inventions and evasions for the continuance of the mischief pro privato commodo (for private benefit); and

(c) add force and life to the cure and remedy according to the true intent of the makers of the Act pro publico (for the public good)." - 38 -

[Emphasis supplied]

"23. Heydon's rule has been applied by this Court in a large number of cases in order to suppress the mischief which was intended to be remedied as against the literal rule which

could have otherwise covered the field. (See for example, Parayankandiyal eravath kanapravan kalliani Amma v. K. Devi [(1996) 4 SCC 76 : AIR 1996 SC 1963]; Bengal Immunity Co. Ltd. v. State of Bihar [AIR 1955 SC 661] and Goodyear India Ltd. v. State of Haryana [(1990) 2 SCC 71]"

51. At this stage, it would be appropriate to take into consideration the observations made by the Apex Court in the case of Salem Advocate Bar Association (supra). In the first Salem Advocate Bar Association's case reported in AIR 2003 SC 189, the validity of Order XVIII, Rule 4 was challenged. However, the Apex Court upheld the validity of the said rule. In the second Salem Advocate Bar Association's case reported in AIR 2005 SC 3353, the Apex Court was called upon to formulate the modalities for implementation of section 89 of the Code of Civil Procedure. The Apex Court, however, took into consideration the report submitted by the Committee which was constituted for the purpose of giving proper effect to the amendments. The report was tendered in three parts. Report-I contained the consideration of various grievances relating to amendments to the Code and recommendations of the Committee. In para- 3 of - 39 -

the said judgment, the Apex Court has taken into consideration the report and in para- 5 it has taken into consideration the effect of amendment of Order XVIII Rule 4. It would be relevant to consider the observations made by the Apex Court in para- 5 of its judgment which is reproduced hereinbelow:-

"5. The amendment provides that in every case, the examination-in-chief of a witness shall be on affidavit. The Court has already been vested with power to permit affidavits to be filed as evidence as provided in Order XIX Rules 1 and 2 of the Code. It has to be kept in view that the right of cross- examination and re-examination in open court has not been disturbed by Order XVIII rule 4 inserted by amendment. It is true that after the amendment cross-examination can be before a Commissioner but we feel that no exception can be taken in regard to the power of the

legislature to amend the Code and provide for the examination-in-chief to be on affidavit or cross-examination before a Commissioner. The scope of Order XVIII rule 4 has been examined and its validity upheld in Salem Advocates Bar Association's case. There is also no question of inadmissible documents being read into

evidence merely on account of such documents being given exhibit numbers in the affidavit filed by way of examination-in-chief. Further, in Salem Advocates Bar Association's case, it has been held that the trial court in appropriate cases can permit the examination-in-chief to be recorded in the

Court. Proviso to sub- rule (2) of Rule 4 of Order XVIII clearly suggests that the court has to apply its mind to the facts of the

case, nature of allegations, nature of evidence and importance of the particular

witness for determining whether the witness shall be examined in court or by the Commissioner appointed by it. The power under Order XVIII Rule 4(2) is required to be

exercised with great circumspection having

regard to the facts and circumstances of the case. It is not necessary to lay down hard - 40 -

and fast rules controlling the discretion of the court to appoint Commissioner to record cross-examination and re- examination of witnesses. The purpose would be served by noticing some illustrative cases which would serve as broad and general guidelines for the exercise of discretion. For instance, a case may involve complex question of title, complex question in partition or suits relating to

partnership business or suits involving serious allegations of fraud, forgery, serious disputes as to the execution of the will etc. In such cases, as far as possible, the court may prefer to itself record the cross- examination of the material witnesses. An other contention raised is that when evidence is recorded by the Commissioner, the Court

would be deprived of the benefit of watching the demeanour of witness. That may be so but, in our view, the will of the legislature,

which has by amending the Code provided for recording evidence by the Commissioner for

saving Court's time taken for the said purpose, cannot be defeated merely on the

ground that the Court would be deprived of

watching the demeanour of the witnesses. Further, as noticed above, in some cases,

which are complex in nature, the prayer for recording evidence by the Commissioner may be declined by the Court. It may also be noted that Order XVIII rule 4, specifically provides that the Commissioner may record such remarks as it thinks material in respect of the

demeanour of any witness while under examination. The court would have the benefit of the observations if made by the Commissioner."

(Emphasis supplied)

52. The Code of Civil Procedure is a procedural law. It is "procedure", something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a - 41 -

construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is to "both" sides) lest the very means designed for the furtherance of justice be used to frustrate it.

53. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, the provisions of the C.P.C. or any other procedural enactment ought not to be construed in manner which would leave the court helpless to meet extraordinary situations in the ends of justice.

54. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiate where the - 42 -

tragic sequel otherwise would be wholly inequitable- Justice is the goal of jurisprudence processual, as much as substantive. (See Sushil Kumar Sen v. State of Bihar, 1975 (1) SCC 774).

Bihar

55. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the Court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. [See Blyth v. Blyth, 1966 (1) All E.R. Blyth

524 (HL)]. A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. (see Shreenath and Anr. v. Rajesh and Ors., AIR1998 Ors. SC

1827).

56. Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice as held by the Apex Court in the recent judgment in the case ofM/s.R.N.Jadi and Brothers v. Subhashchandra, AIR 2007 SC 2571 Subhashchandra

- 43 -

57. The Court must always be anxious to do justice and prevent victories by way of technical knock-outs. But how far that concept can be stretched in the context of the amendments brought to the C.P.C. and in the light of the mischief that was sought to be averted is a question that has to be seriously considered. Sometimes even the procedure would be considered as mandatory, no doubt, retaining the power in Court in a proper case to exercise the jurisdiction to take out the rigour of that provision or to mitigate genuine hardship.

Consideration :

-------------

58. With the above preface, we propose to answer the questions referred hereinabove.

Question-A.

-----------

59. The resolution of this question cannot be without considering the provisions of Order XIII Rule 3 which requires the Court to reject any document it considers irrelevant or otherwise inadmissible recording grounds of such rejection. Rule 4 provides for every document admitted in evidence in the suit being endorsed by or on behalf of the Court, which - 44 -

endorsement signed or initialled by the Judge amounts to admission of the document in evidence. Rule 6 contemplates endorsements on the documents rejected as inadmissible in evidence. An objection to the admissibility of the document should be raised before 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 as admitted or not admitted in evidence.

60. Chapter XXVII of the Civil Manual also 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.

61. Considering the provisions of law referred to above, it is not possible to reject the document admitted and exhibited in terms of Rule 4 in exercise of powers under Rule 6 of Order XIII of C.P.C. A document can be exhibited in evidence only when such a document is admissible in evidence and not otherwise. If admissible document is exhibited on establishing its proof then such document cannot be de-exhibited or rejected. This is abundantly clear from the - 45 -

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 Rule 6 of Order XIII of C.P.C. and 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 found to be not admissible, the same is to be rejected in terms of Rule 6 of Order XIII read with para-524 of Civil Manual. There is no provision enabling the Court to postpone the objection regarding admissibility or proof of document, as such one can safely rule that the question as to admissibility of document should be decided at it arises and should not be reserved until the judgment of the case is given.

62. The various judgments of the Privy Council, the Supreme Court and various High Courts referred to hereinabove lean in favour of determining the question as to admissibility of document at the time of its reception or at the earliest possible opportunity. The reason is that if the Court allows the objection, the party tendering the evidence may take such steps as may be advised to get the lacunae remedied. Once inadmissible evidence is admitted on record, it is impossible to say what its effect may be on the mind - 46 -

of the person, who hears it. It creates atmosphere of prejudice affecting fair trial. It may, unconsciously, be regarded by judicial minds as corroboration of some piece of evidence legally admissible and thereby obtain for latter quite undue weight and significance.

Stage to Raise Objection :

------------------------

63. In order to prevent inadmissible evidence going on record,the opponent or adverse party can always raise an objection to the admissibility of the document. The question is: at which stage such objection is to be raised? To answer this question, let us find out various stages provided in the Code to raise an objection to the admissibility of the documents.

64. Order VII deals with construction of the plaint. Rule 14 thereof provides for production of documents on which plaintiff sues along with list of other documents relied upon in support of the claim. This is a first opportunity in the lis to the plaintiff to produce documents on record.

65. On being served with the writ of summons, the - 47 -

defendant appears and files written statement under Order VIII Rule 1 in which defendant can admit or deny the documents filed by the plaintiff. This is a first opportunity to the defendant to deny or admit the documents. Rule 8-A thereof cast duty on defendant to produce documents upon which relief is claimed by him. Rules relating to a written statement by a defendant apply to a written statement filed in answer to a counter claim in view of Rule 6-G of Order VIII.

66. Under Order XIII Rule 1, one more opportunity is available to the parties to produce documentary evidence at or before settlement of issues. Order 12 Rule 2 provides for notice to admit documents calling upon the opponent to admit documents. This is an additional stage to admit or deny or object to the admissibility of the document. Rule 2A thereof provides for deemed admission, if documents are not denied within stipulated time-frame after service of notice to admit documents.

67. The procedure for rejecting or exhibiting the document which is produced in the course of evidence is prescribed under Order XIII Rules 3 and 4 respectively.

68. Order XVIII, Rule 4(1) of the C.P.C. clearly - 48 -

provides that the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls the witness for evidence; provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with the affidavit shall be subject to the orders of the Court. At this stage, one more opportunity is provided to the party to produce documents.

69. The procedure to lead evidence in the form of affidavit under Order XVIII, Rule 4 of the C.P.C. and to translate it into admissible evidence has been elaborately stated in the decision of the learned single Judge of this Court in F.D.C. Ltd. v. Federation of Medical Representatives Association India, 2003 (3) Mh.L.J.

India 327 = AIR 2003 Bombay 371.

70. The above judgment in the case of F.D.C.Ltd. (supra) is affirmed by the Supreme Court in Salem Advocate Bar Association (supra) and Ameer Trading Corpn. Ltd. (supra). It is, thus, ruled that unless deponent thereof enters the witness-box and confirms the contents of the affidavit the same cannot be taken on record and exhibited. Once the affidavit of evidence is taken on record and exhibited making part - 49 -

of the record of the case, the opponent, at this stage, must raise an objection to the admissibility and proof of the documents which the Court has to decide by a judicial order.

Classification of Documentary Evidence vis-a-vis ------------------------------------------------ Adjudication thereon :

--------------------

71. The admissibility of the document in evidence may be broadly classified into three classes- (i) that objection to the document which is sought to be proved is itself insufficiently stamped and the objection relates to deficiency of stamp duty of the document; (ii) where the objection does not dispute admissibility of document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient; and (iii) the objection that the document which is sought to be proved is ab initio inadmissible in evidence.

72. In the first case, the Court, before which the objection is taken about admissibility of document on the ground that it is not duly stamped, has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case as held by the Constitution Bench in Zaver Chand v. Pukhraj Surana - 50 -

(supra) Once a document has been marked as an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, section 36 comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the trial Court itself or to a Court of Appeal or Revision to go behind that order. such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction. Similar view is expressed by the Supreme Court in the case of Bipin Shantilal Panchal (supra); wherein it is made clear that if the objection relates to deficiency of stamp duty of a document, the Court has to decide the objection before proceeding further.

73. In the case of Ram Ratan v. Bajarang Lal (supra) the Apex Court reiterating the above view has observed that the Court, as of necessity it would be trial Court, before which the objection is taken about admissibility of document on the ground that it is not duly stamped, has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. So the objection relating to deficiency of duty cannot be raised or decided at the later stage of the suit. It has to be decided there and then unless taken on - 51 -

record subject to objection so as to avoid the rigour of section 36 of the Stamp Act.

74. In the second category of the case, the objection should be taken when the evidence is tendered. Once the document has been admitted in evidence and marked as an exhibit, the objection that it should not be 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. This proposition is rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would enable the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object become 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 there and then; 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 - 52 -

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. 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.

75. If the objection to the proof of document is not decided and the document is taken on record giving tentative exhibit, then the right of the cross-examiner is seriously prejudiced. Once the document is used in cross-examination, then the document gets proved and can be read in evidence as held by the Supreme Court in the case of Ram Janki Devi v. M/s.Juggilal Kamlapat,1971 (1) SCC 477. Kamlapat If the cross-examiner decides not to cross-examine based on unexhibited document and, ultimately, at the fag end of the trial, the document is held to be admissible and proved, then, the cross-examiner as a rule of fair play would be entitled to further opportunity to cross-examine based on that document resulting in delayed trial defeating the very object and purpose of the amendment to the C.P.C.

76. In the third case merely because a document - 53 -

has been marked as "an exhibit", an objection as to its admissibility is not excluded. It is available to be raised even at later stage or even in appeal or revision. There is no question of inadmissible documents being read into evidence merely on account of such documents being given exhibit numbers in affidavit filed by in examination-in-chief or while recording oral evidence. For example in case of unregistered sale-deed or gift-deed or lease-deed requiring registration, no evidence of the terms thereof can be given. On the ground of public policy, evidence derived from unpublished official records of the State cannot be given except with the permission of the head of the department concerned as laid down under section 123 of the Evidence Act. Such a document, therefore, can be tentatively exhibited and the decision thereon can be postponed till the suit reaches the stage of judgment. However such objection has also to be decided before the judgment is delivered. The objection to the admissibility of such evidence can always be taken at any stage of the suit.

77. Thus, we hold and rule that ordinarily an objection to the admissibility of the document in first and second categories of cases (excluding third type of case) has to be taken before the document is exhibited which, necessarily, postulates decision on - 54 -

the objection then and there. In other words, whether document is admissible or inadmissible is matter which should always be ruled upon at the time when the document is being proved or put in or the question asked to the witness. Such practice and procedure is fair to both parties.

78. It may be observed that sometimes in the case of second category, evidence can be received subject to objection in anticipation of other evidence, which, if produced, will remove the objection. In such cases, a final decision on the objection can be postponed to a later stage but, at any rate, it must be decided before the court proceeds to judgment. Omission in this respect is likely to prejudice the party producing the evidence by letting the matter remain in a dubious state and then depriving the party tendering the evidence of an opportunity of making up the defects which in many cases he would be ready to do if he is told that the objection is allowed as observed hereinbefore.

79. We may make it clear that a ruling as regards admissibility of evidence should be as brief as possible since no appeal lies against such order, it not being a 'judgment'. Once the ruling has been given, there should be no interruption in the trial - 55 -

and the trial Court should proceed with the trial to judgment without interruption. In the judgment the order should incorporate fuller reasons, if need be, for holding particular evidence to be inadmissible.

80. Our above view is in consonance with the view taken by the Privy Council in Padman v. Hanwanta, AIR Hanwanta

1915 PC 111. It did not permit the appellant to take objection to the admissibility of a registered copy of a Will in appeal for the first time. It was held that this objection should have been taken in the trial court. It was observed (AIR p.112)

" The defendants have not appealed to His Majesty-in-Council, and the case has been argued on their behalf in great detail. It was urged in the course of the argument that a registered copy of the Will of 1898 was

admitted in evidence without sufficient foundation being laid for its admission. No objection, however, appears to have been taken in the first court against the copy obtained from the Registrar's office being put in

evidence. Had such objection been made at the time, the District Judge, who tried the case in the first instance, would probably have

seen that the deficiency was supplied. Their Lordships think that there is no substance in the present contention."

Similar is the view expressed by three Judge Bench of the Supreme Court in the case of inP.C.Purushothama Reddiar v. S.Perumal, (1972) 1 SCC 9.

S.Perumal In this case the police reports were admitted in evidence without - 56 -

any objection and the objection was sought to be taken in appeal regarding the admissibility of the reports. Rejecting the contention it was observed: (SCC p.15, para 19)

"19. Before leaving this case it is necessary to refer to one of the contentions taken by Mr.Ramamurthi, learned counsel for the respondent. He contended that the police reports referred to earlier are inadmissible in evidence as the Head Constables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it is not open to the

respondent now to object to their admissibility- see Bhagat Ram v. Khetu Ram, AIR 1929 PC 110."

The aforesaid view has been followed by two Judge Bench of the Supreme Court in the case of R.V.E. Venkatchalla Gounder (supra) holding the view that the admissibility of document should be determined as it arises and before the document is marked and exhibited.

81. The aforesaid view is again reiterated by another two Judge Bench of the Supreme Court in the case of Smt.Dayamathi Bai v. K.M.Shaffi (supra); wherein the reliance is placed on the Privy Council judgment in the case of Gopal Das v. Sri Thakurji (supra); wherein the Privy Council ruled that the - 57 -

objection as to the mode of proof must be taken and determined as it arises before the document is marked and exhibited.

82. While taking above view, we are also conscious of the another three Judge Bench judgment of the Supreme Court in the case of Bipin Shantilal Panchal (supra) followed by another judgment in the case of State v. Navjot Sandhu (supra); wherein the view taken is that whenever any objection is taken regarding admissibility of the material or any item of oral evidence such objection should be decided at the last stage of the final judgment. The said judgments were followed by the learned single Judge of this Court in the case of Boman P. Irani (supra).

83. The procedure suggested by three Judge Bench of the Apex Court in the case of Bipin Shantilal Panchal (supra) for being followed is little different than the view expressed by the another three Judge Bench judgment of the same Court in the case of P.C.Purushothama Reddiar v. S.Perumal (supra) followed by two Division Benches of the Supreme Court in the cases ofR.V.E. Venkatachalam Gounder and Smt.Dayamathi Bai v. K.M.Shaffi (cited supra).

84. Now the question arises as to which of the two - 58 -

views this Court should follow. The view expressed in Bipin Shantilal Panchal (supra) by the Apex Court is based on the peculiar factual matrix arising out of criminal trial which was prolonged for almost 10 (Ten) years in breach of fundamental right of the accused under Article 21 of the Constitution of India guarantying speedy and expeditious trial. The same view was followed in the case of State v. Navjot Sandhu (supra) involving more or less similar facts surfaced in a criminal trial. The question referred for our consideration arises out of civil proceedings governed by the provisions of the C.P.C. It is well settled that if certain things are required to be done by the Statute in a specific manner, then it cannot be done in any other manner as ruled by the Apex Court in the case of Nazir Ahmed v. King Emperor, AIR 1936 PC Emperor

243; State of Uttar Pradesh v. Singhara Singh, Singh AIR

1964 SC 358 followed by this Court in Vanmala S. Aney v. National Education Society, Khamgaon, 1982 Mh.L.J. Khamgaon

403. Thus, mandate of Order XIII Rules 3 and 4 read with Order XVIII Rule 4(1) and consensus of judicial opinion compel us to fall in line with the view expressed in R.V.E. Venkatachalam Gounder and Smt.Dayamathi Bai v. K.M.Shaffi (both cited supra).

85. Apart from the above, the principles of stare decisis squarely applies to the case on hand. In - 59 -

Mishri Lal v. Dhirendra Nath, (1999) 4 SCC 11 (paras Nath

14-22), the Supreme Court referred to its earlier decision in Maktul v. Manbhari, AIR 1958 SC 918 Manbhari on

the scope of doctrine of stare decisis with reference to Hulsbury's Laws of England and Corpus Juris Secundum and held (at SCC p.18 para-14) that- "a decision which has been followed for a long period of time, and has been acted upon by

persons in the formation of contracts or in the disposition of their property, or in the general conduct of affairs, or in legal procedure or in other ways, will generally be followed by courts of higher authority other than the court establishing the rule, even

though the court before whom the matter arises afterwards might be of a different view."

86. Assuming that it is possible to take different view or work out different procedure as suggested in Bipin Shantilal Panchal;

Panchal as long as long as principle laid down in P.C.Purushothama Reddiar v. S.Perumal; S.Perumal

R.V.E. Venkatachalam Gounder;

Gounder and Smt.Dayamathi Bai

v. K.M.Shaffi (all cited supra) has been consistently followed in our country in civil matters, as observed in Mishri Lal (supra), it will be worthwhile to let the matter rest since a large number of parties have modulated and continue to modulate their legal relationships based on the settled law.

87. However, by way of exception, the objection - 60 -

relating to the admissibility of the document requiring resolution of complex issues, having effect of arresting progress of the matter, or if the admissibility of the evidence is dependent on receipt of further evidence, then, in such cases the trial Court can, in the interest of justice, defer the issue of deciding admissibility of the document. In Ram Ratan v. Bajarang Lal (supra), the Supreme Court has also observed that in a given circumstance a document can be exhibited with the endorsement made by the learned trial Judge "objected, allowed subject to objection", clearly indicating that the objection has not been judicially determined and the document was tentatively marked. This procedure is to be followed only in exceptional circumstances. Ordinarily, the objection to the admissibility of the document should be decided as and when raised without reserving the question as to admissibility of the document until final judgment in the case. We may make it clear that omission to object to a document, which in itself is inadmissible in evidence, would not constitute such document in evidence. It is also duty of the Court to exclude all irrelevant evidence even if no objection is taken to its admissibility by the parties. The question of relevancy of the document being a question of law can be raised and decided at any stage of the proceeding.

- 61 -

88. The cases; wherein Court Commissioner is appointed to record cross-examination, the Court may decide the question of admissibility of document or proof of such document before the matter is sent for recording of evidence to the Commissioner in the form of cross-examination or re-examination or, in a given case, the Court may decide that question at a subsequent stage. The Court, obviously, has a discretion of recording cross-examination and re-examination itself. During the cross-examination, if the document is produced and the question leading to its admissibility is raised, then, the Commissioner cannot rule the point as to admissibility of the evidence. In such case, the Court Commissioner is expected to record objection and can give tentative exhibit to the document subject to the decision of the Court. The Court would then be obliged to decide the question before the judgment is delivered so that the party producing evidence could not be deprived of its right to tender evidence or an opportunity of producing fresh evidence or opportunity of making up defects which in many cases could be remedied, if he is told that the objection is allowed.

89. The different cases will have different facts. Each case must be dealt with on its own facts. No - 62 -

strait jacket formula can be evolved. The C.P.C. has been amended from time to time in order to meet the changing situations. The courts trying the suit or proceedings involving peculiar facts do have a discretion to work out its own procedure and determine the stage of deciding the admissibility of the documents for the reasons to be recorded, if it advances the cause of justice without causing prejudice to the rights of either of the parties. The discretion should not be used fancifully. It is quite possible that sometimes when party fails to substantiate the allegations, he may resort to dilatory tactics to harass the opponent by filing irrelevant and frivolous documents to prolong the continuance of the case. This should be checked by exercising power available with the Court. As already said, procedure is always evolved to serve the ends of justice. miscarriage of justice.

Question-B.

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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. - 63 -

Ltd.

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 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 convenient mode is to admit the objection in the first instance, reserving question of law as to its admissibility until final judgment in the case. Conclusions :

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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 :

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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 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.

miscarriage of justice and expedite trial, which is the dire need of the time.

Answer to Question-B :

--------------------

93. Having answered the questions as above, we direct the matters to be placed for disposal in accordance with law before appropriate Bench. (CHIEF JUSTICE)

(V.C.DAGA, J.)

(V.M.KANADE, J.)

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Sunday, 17 December 2017

Leading judgment on exhibition of documents

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