Writ Petition No.5872 of 2005

10th April, 2006

Petitioner Counsel: Sarvarsi INDRAPRAKASH TRIPATHI,L. K. TRIPATHI
Respondent Counsel: Sarvarsi RAKESH KUMAR,VIJAY PANDEY,M/s. Legal Vision

Cases Cited:
Boman P. Irani Vs. Manilal P. Gala, 2004(2) ALL MR 191=2004(2) Mh.L.J.128 [Para 4,8]
Bipin Shantilal Panchal Vs. State of Gujarat, 2001 ALL MR (Cri) 452 (S.C.)=AIR 2001 SC 1158 [Para 4,8]
F.D.C. Ltd. Vs. Federation of Medical Representatives Association India (FMRAI), 2003(2) ALL MR 510=AIR 2003 Bom 371 [Para 4,6]
Salem Advocate Bar Association Vs. Union of India, 2003(1) ALL MR 391 (S.C.)=2003(3) BCR 327 [Para 6]

JUDGMENT

JUDGMENT :- Heard the learned Advocates for the parties. Rule. By consent, the rule is made returnable forthwith and heard.

2. The petitioner challenges the order dated 16-8-2005 on the ground that the law does not permit de-exhibition of documents once the documents are exhibited in evidence and secondly that no opportunity has been given to the petitioner/plaintiff to prove the documents which were sought to be refused to be admitted.

3. Few facts relevant for the decision are that the Civil Suit No.3600 of 2004, filed by the petitioner, was fixed for the plaintiff's evidence on 19-7-2005. On that day, the petitioner sought to lead evidence in the form of affidavit under Order 18, Rule 4 of the Code of Civil Procedure, hereinafter called as "the C.P.C." along with certain documents. The said affidavit along with the documents was taken on record by the trial Court. The affidavit was marked Exhibit-1. The list of the documents annexed to the affidavit was marked as Exhibit-2 and the documents which were annexed to the suit list and bearing serial Nos.1 to 7 were marked as "Exhibits 3 to 9, subject to objection". The Advocate for the respondent/defendant was directed to give his say on the point of admissibility of those documents in evidence. The matter was adjourned to 28-7-2005 and further to 16-8-2005. On 16-8-2005 the petitioner entered the witness box and placed the said affidavit in evidence in lieu of his examination-in-chief. It was in the absence of the respondent and his Advocate. However, after some time, the Advocate for the defendant appeared and he was allowed to cross-examine the plaintiff. On that occasion, the trial Court passed the impugned order which reads thus:

"Heard parties. Read Affidavit submitted in lieu of Examination-in-chief. Received documents. The objections regarding exhibiting documents with respect to Sr. Nos.3, 4 and 5 are allowed. Documents shown as Exhs.'B, 'C', 'C1' and list are hereby de-exhibited. The Plaintiff may prove those documents as per law. The objection with respect to document Sr.No.1 is rejected....."

Thereafter the cross-examination of the plaintiff concluded on the very day i.e. 16-8-2005. The petitioner, thereafter, filed the present petition.

4. While drawing attention to the decision of the learned single Judge in Boman P. Irani and another Vs. Manilal P. Gala and others, reported in 2004(2) Mh.L.J. 128 : [2004(2) ALL MR 191] and the decision of the Apex Court in the matter of Bipin Shantilal Panchal Vs. State of Gujarat and another, reported in AIR 2001 SC 1158 : [2001 ALL MR (Cri) 452 (S.C.)], the learned Advocate appearing for the petitioner submitted that the trial Court having once admitted the documents in evidence and exhibited them, it was not permissible for the trial Court to de-exhibit those documents, as the provisions of law nowhere empowers the Court to de-exhibit the document once it is admitted in evidence. He further submitted that in any case before proceeding with the cross-examination of the plaintiff, admission of certain documents having been refused, it was necessary for the trial Court to give opportunity to the petitioner to prove those documents and having not given that opportunity, the trial Court has in fact failed to exercise its jurisdiction in the manner it ought to have exercised. In any case, the document having been once marked as exhibit in the evidence, any decision regarding the admissibility of the document could have been taken at the time of disposal of the suit. The learned Advocate appearing for the respondent, on the other hand, submitted that the impugned order itself discloses that the petitioner has been assured the opportunity to prove those documents as per law. Being so, it is not correct that the petitioner has not been given the opportunity to prove the documents. Drawing attention to the decision in F.D.C. Ltd. Vs. Federation of Medical Representatives Association India (FMRAI) and others, reported in AIR 2003 Bombay 371 : [2003(2) ALL MR 510], the learned Advocate appearing for the respondent submitted that the trial Court could not have exhibited the documents unless there was fair opportunity given to the defendant to raise necessary objections as regards the admissibility thereof and, therefore, merely because on filing of the affidavit some exhibit numbers were given to the documents, it could not be said to be an act of the exhibition of the documents in evidence in terms of the provisions of law.

5. The Order 18, Rule 4(1) of the C.P.C. clearly 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.

6. As regards the procedure to lead evidence in the form of affidavit under Order 18, Rule 4 of the C.P.C., the same has been elaborately stated in the decision in F.D.C. Ltd. [2003(2) ALL MR 510] (supra). It was held therein that:

"...... in appealable cases though the examination-in-chief of a witness is permissible to be produced in the form of affidavit, such affidavit cannot be ordered to form part of the evidence unless the deponent thereof enters the witness-box and confirms that the contents of the affidavit are as per his say and the affidavit is under his signature and his statement being made on oath to be recorded by following the procedure prescribed under R.5."

The above decision has been duly approved by the Apex Court in Salem Advocate Bar Association & Ors. Vs. Union of India, reported in 2003(3) Bom.C.R. 327 : [2003(1) ALL MR 391 (S.C.)].

7. The procedure for exhibiting the document which is produced in the course of the evidence is prescribed under Order 13, Rule 4. When documents are produced along with the affidavit filed under Order 18, Rule 4, the admissibility of such document is to be decided at the time the affidavit along with the documents are to be taken on record in the evidence while the plaintiff is in the witness-box. The Rule 6 of Order 13 clearly provides that when the document relied upon is sought to be produced in the evidence and is found to be inadmissible and therefore rejected, the Court shall return the said document with a specific endorsement thereon regarding the rejection of such document in evidence. The order to admit or reject the document produced in evidence cannot be postponed to be delivered at the time of final disposal of the suit, as in the case of rejection of document, it must be made known to the party at the time when the document is sought to be produced in evidence. Such information to the concerned party at the relevant time is absolutely necessary to avoid undue hardship to such party. In case of rejection of document, the party can either try to prove the document in some other mode or may lead some other evidence necessary to establish the fact which was sought to be established by producing such document. In case the decision on the admissibility of the document is postponed till the disposal of the suit, the party will have no opportunity to make good the loss which the party may suffer on account of rejection of the document. Being so, the question of postponing the decision on the admissibility of the evidence till the disposal of the suit cannot arise. Any such postponement of the order till disposal of suit would virtually result in injustice to the concerned party.

8. The decision of the learned single Judge in Boman Irani's case [2004(2) ALL MR 191] (supra) was on the basis of the decision of the Supreme Court in Bipin Shantilal Panchal's case [2001 ALL MR (Cri) 452 (S.C.)] (supra). However, the decision in Bipin Shantilal Panchal's case was in a criminal matter and not in a civil suit. The Apex Court therein, considering the nature of the criminal trials held that :

"Suppose the trial Court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or revisional Court, when the same question is re-canvassed, could take a different view on the admissibility of that material in such cases the appellate Court would be deprived of the benefit of that evidence, because that was not put on record by the trial Court. In such a situation the higher Court may have to send the case back to the trial Court for recording that evidence and then to dispose of the case afresh."

Taking into consideration this aspect, it was observed that :

"Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment."

9. However, in civil proceedings the situation is totally different. Merely because the trial Court rejects a document to be exhibited in evidence, it does not prohibit the party from producing such evidence even at the appellate stage. The provisions of Order 41, Rule 27 are very clear in that regard. Besides, the Appellate Court in civil proceedings has power to take on record such further evidence in terms of Rule 28 of Order 41 of the C.P.C. without sending the proceedings to the trial Court. Being so, the decision of the Apex Court in Bipin Shantilal Panchal's case in relation to criminal trials will not apply to civil cases.

10. As already observed above, the impugned order specifically permits the petitioner to prove the documents as per law. Merely because the petitioner's cross-examination in relation to the admitted documents or the affidavit filed under Order 18, Rule 4 of the C.P.C. is over, that will not be an obstacle to the petitioner to prove those documents if the law allows him to prove the same. Once the impugned order specifically provides that the petitioner was allowed to prove the documents as per law, the petitioner cannot be heard to say that the trial Court has refused to give opportunity to the petitioner to prove those documents.

11. It was sought to be contended that such an opportunity ought to be given before the cross-examination of the petitioner is completed. The records nowhere disclose that the petitioner had indeed asked for such an opportunity before the cross-examination of the petitioner. In the absence of any material on record disclosing any attempt on the part of the petitioner before the trial Court to prove such document before such cross-examination of the petitioner, the contention of the petitioner in that regard is to be rejected as being totally devoid of substance.

12. The proposition that there is no provision in the C.P.C. or under the Evidence Act to de-exhibit the document once exhibited in evidence, cannot be found fault with. However, such exhibition of documents shall be in accordance with the provisions of law. It is not mere endorsement on the document about the exhibit number that will constitute exhibition of the documents in evidence in accordance with the provisions of law. In order to say that the document has been exhibited in evidence, it has to be in accordance with the provisions of law comprised under Order 18, Rule 4 read with Order 13, Rule 4 of the C.P.C.. If the document is exhibited in other manner or by adopting any other procedure, unless it is shown that such procedure has the sanction of law, exhibition of such document cannot be said to be an exhibition of document in evidence in accordance with the provisions of law. Being so, merely because on 19-7-2005 the Court had recorded in the Roznama that the document annexed to the affidavit evidence were exhibited as Exhibits 3 to 9, that itself did not constitute exhibition of those documents in evidence. Besides, the endorsement itself disclosed that the exhibition was "subject to objection". In other words, the documents were yet to be exhibited in evidence in accordance with the provisions of law under Order 18, Rule 4 read with Order 13, Rule 4 of the C.P.C. and that function was performed by the trial Court on 16-8-2005. Being so, merely because the expression "de-exhibited" has been used in the order dated 16-8-2005, it would not amount to de-exhibition of documents in evidence. It would simply mean that the documents other than those which are exhibited in terms of Order 13, Rule 4 on 16-8-2005, are not admitted in evidence.

13. In the result, therefore, there is no case for interference in the impugned order. The petition, therefore, fails and is hereby dismissed. The rule is discharged with no order as to costs.

Petition dismissed.