NEUTRAL CITATION
C/FA/3371/2005 CAV JUDGMENT DATED: 09/08/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3371 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI : Sd/-
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
=====================================================
1 Whether Reporters of Local Papers may NO be allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the
fair copy of the judgment ? NO
4 Whether this case involves a
substantial question of law as to the interpretation of the Constitution of NO India or any order made thereunder ?
===================================================== STATE OF GUJARAT & 1 other(s) Versus VALJI POONA & COMPANY ===================================================== Appearance:
MS ROSHNI PATEL AGP for the Appellant(s) No. 1,2 MR GT DAYANI(271) for the Defendant(s) No. 1 ===================================================== CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI and HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Date : 09/08/2023 CAV JUDGMENT (PER : HONOURABLE MR. JUSTICE DIVYESH A. JOSHI) Page 1 of 28 Downloaded on : Sun Sep 17 00:46:20 IST 2023 NEUTRAL CITATION C/FA/3371/2005 CAV JUDGMENT DATED: 09/08/2023 undefined
1. The appellants-State of Gujarat and another are the original defendants and the respondent M/s. Valji Poona and Company is the original plaintiff in the proceeding before learned Civil Judge, (S.D.) at Gandhinagar in Special Civil Suit No.77 of 1997. For the sake of brevity and convenience, the parties are herein after referred to as "the defendants" and "the plaintiff" respectively.
2. The short facts leading to the filing of the suit are as under:-
2.1 The plaintiff is engaged in the business of undertaking, on contract, heavy civil engineering works, in and outside Gujarat State. The plaintiff and defendant no.1 entered into a contract No.B2/2 of 1979-80 for construction of Earthern Dam, Spilway and Head Regulator on left side of Kakdiamba Irrigation Scheme after following prescribed procedure of public tender. 2.2 Under the provisions of the contract, the plaintiff was required to start the said works on 7.12.1980 and complete it in all respects on or before 6.2.1982. The plaintiff completed the work on 31.3.1982 and Completion Certificate was issued on 19.9.1986 by the defendants. The contract and the law imposed certain obligations and Page 2 of 28 Downloaded on : Sun Sep 17 00:46:20 IST 2023 NEUTRAL CITATION C/FA/3371/2005 CAV JUDGMENT DATED: 09/08/2023 undefined promises, express and/or implied, which were required to be fulfilled or preferred by the defendants.
2.3 Some of the obligations and promises were as under:-
(a) For execution of the said works contract, it was necessary that the work site, free from any hindrences and interruptions, was provided by the defendants. This is a very fundamental obligations of the defendants, failure to fulfill which prevents the plaintiff from performing his promises under the agreement. The defendants embarked on this project without ensuring that the required land was available, free from any encumbrances or trouble. The defendants neglected and/or failed to redress the grievances of the villagers to their satisfaction whose lands were acquired.
(b) The area on which the Earthen dam and other structures are to be located is required to be identified and shown to the plaintiff by the the defendants. This is commonly, in the trade known as "giving the line out". The plaintiff is also obliged to execute the said works exactly as per the drawings, decisions Page 3 of 28 Downloaded on : Sun Sep 17 00:46:20 IST 2023 NEUTRAL CITATION C/FA/3371/2005 CAV JUDGMENT DATED: 09/08/2023 undefined and specifications prescribed and laid down by the defendants. Throughout the execution of the said works there were constant delays in giving the line out or supplying the drawings and other necessary designs. Required approvals and other appropriate decisions and instructions were also not forthcoming on time.
(c) The defendants were obliged to supply certain materials under the contract. The defendants could not supply the same on time and in required quantity.
(d) The contract also provides that every month payment for the work done during the month would be made. Non-payment of admissible payments creates problems of funds for the plaintiff and effect adversely to maintain the required rate of progress. The defendants failed to make the payments of these monthly bills known as R.A.Bills and created problems of shortage of funds for the plaintiff which also affected the rate of progress.
2.4 The reasons enumerated above resulted in keeping the idle men, machinery etc, of the plaintiff, in the stipulated period of contract. These reasons also resulted in Page 4 of 28 Downloaded on : Sun Sep 17 00:46:20 IST 2023 NEUTRAL CITATION C/FA/3371/2005 CAV JUDGMENT DATED: 09/08/2023 undefined delaying the project much beyond the period originally contemplated. The reduced output obtained from the resources employed by the plaintiff as compared to the output that ought to have been obtained from the same resources meant under utilization of these resources causing loses to the plaintiff. The plaintiff had provided for 10% of the tender amount towards overheads and 15% towards profit. The overhead expenses remained fractious and the estimated profits, the plaintiff lost because of the enormous delay which was entirely due to the fault of the defendants. The defendants also directed the plaintiff to carry out certain works in more difficult circumstances for which the plaintiff is entitled to be compensated.
2.5 In respect of various claims enumerated in the plaint, the plaintiff has filed suit for recovery o Rs.64,38,246.46 ps. against the defendants. Notice was issued by the Honourable Court, which was duly served upon the defendants and they appeared through their advocate and filed their reply. Thereafter, the issues where framed and the respective parties have laid evidence. After submission of closing purshis by both the parties, arguments were Page 5 of 28 Downloaded on : Sun Sep 17 00:46:20 IST 2023 NEUTRAL CITATION C/FA/3371/2005 CAV JUDGMENT DATED: 09/08/2023 undefined advanced and after considering and appreciating the arguments advanced by both the sides, learned Judge has passed the impugned final order, which reads as under:-
"ORDER
(a) Plaintiff's suit is allowed.
(b) The defendants are directed to pay Rs.64,38,246.46 ps. (Rupees Sixty Four lacs thirty eight thousand two hundred forty six and forty six paise only) together with interest at the rate of 12% p.a. from the date of filing of the suit till its realization.
(c) Defendants bear their own cost and pay the cost of the plaintiff.
Decree be drawn accordingly."
2.6 Being aggrieved and dissatisfied with the impugned judgment and order, the appellants have preferred present appeal by raising manyfold grounds.
3. Learned AGP, Ms.Roshni Patel, who appears on behalf of the appellants has submitted that the learned Judge has not considered the evidence available on record in its true spirit and proper perspective. The judgment and order passed by the learned Judge is against the settled principles of law. She has further submitted that the witness of the plaintiff was examined in absence of learned advocate of the defendants and, at the time of leading of evidence, all the documents were referred by the learned advocate for the plaintiff to the Page 6 of 28 Downloaded on : Sun Sep 17 00:46:20 IST 2023 NEUTRAL CITATION C/FA/3371/2005 CAV JUDGMENT DATED: 09/08/2023 undefined witness and without proving the contents of the documents, straightaway those documents were exhibited. At the time of appreciating the evidence available on record, these documents were taken into consideration, which is not in consonance with the provisions of the Evidence Act. Hence, the impugned judgment and order is required to the quashed and set a site.
4. By referring to the evidence available on record, learned AGP has submitted that despite the defendants have led cogent and convincing evidence, it was not considered by the Honorable Court and, hence, the impugned judgment is required to be quashed and set aside.
5. Per contra, learned advocate, Mr. N.L. Ramnani appearing on behalf of learned advocate, Mr.G.T.Dayani for the respondent-original plaintiff as vociferously submitted that the impugned judgment and order passed by the learned Judge is just, fare and reasonable and it is based on sound principles of law and it is not required to be interfered with at this stage. He has submitted that the defendants filed written statement and made cross- examination of the witnesses in the form of denial. It is fact on record that the plaintiff has produced all the relevant and material documents in support of oral evidence to substantiate his claim, however, the defendants Page 7 of 28 Downloaded on : Sun Sep 17 00:46:20 IST 2023 NEUTRAL CITATION C/FA/3371/2005 CAV JUDGMENT DATED: 09/08/2023 undefined have failed to disprove the said evidence produced by the plaintiff. Defendants have miserably failed to disporve the evidence led by the plaintiff. Plaintiff has proved his case by leading cogent, convincing and reliable evidence and, after considering the factum of law as well as material available on record. He has read the evidence available on record in the form of chief-examination as well as cross examination and the operative part of the order and submitted that the plaintiff has successfully proved its case by leading cogent, convincing and reliable evidence. Learned advocate, Mr.N.L.Ramnani has submitted that to prove the claim, plaintiff has examined three witnesses and all those witnesses have deposed in very categorical terms and supported the version narrated in the plaint. At the time of recording deposition of the witness, learned advocate of the defence was not present and, in his absence, the evidence was recorded. Therefore, the defendant has lost his valuable right of cross- examining said witness, who had stepped into the witness box. Cross-examination of a witness is a valuable right of the defendant and, by exercising that right, the defendant can disprove the evidence produced by the plaintiff by confronting him with the other evidence and able to bring correct facts on record.
Page 8 of 28 Downloaded on : Sun Sep 17 00:46:20 IST 2023NEUTRAL CITATION C/FA/3371/2005 CAV JUDGMENT DATED: 09/08/2023 undefined Admittedly, said witness was not cross-examined by the learned advocate for the defendant. He further submitted that, therefore, evidence of the said witness remained unchallenged. Accordingly, the plaintiff has successfully proved its case by leading cogent, convincing and reliable evidence. Therefore, the appeal filed by the State Government is required to be dismissed with exemplary cost.
6. Learned advocate, Mr.N.L.Ramnani has further submitted that the plaintiffs have successfully proved his case by leading cogent, convincing and reliable evidence, and while examining the witnesses certain materials in the form of oral evidence, documentary evidence produced by the plaintiff has been brought on record. The said oral as well as documentary evidence was considered by the Honourable Court and on the strength of said material and evidence on record, plaintiff has successfully proved its case. Therefore, judgment and order passed by learned Judge is just, fair, unperturbed, reasonable and based on sound principles of law and, hence, it may be confirmed.
7. We have gone through the evidence available on record, more particularly, the testimony of witness, Ratilal Valjibhai, who was examined by the plaintiff as a witness vide Exh.27. It is an admitted position of fact on record that at the Page 9 of 28 Downloaded on : Sun Sep 17 00:46:20 IST 2023 NEUTRAL CITATION C/FA/3371/2005 CAV JUDGMENT DATED: 09/08/2023 undefined time of recording of evidence of said witness, learned advocate for the defendant was not present. At the time of recording of his evidence, learned advocate for the plaintiff has shown number of papers to the said witness and directly produced it in the Court without referring the contents of the documents and such documents were duly exhibited by the Honourable Court. Admittedly, neither the documents nor its contents were proved. It is true that the defendants were negligent and they have not made any attempt to cross-examine the said witness by submitting the application to reopen their right to cross-examine said witness. Therefore, evidence of said witness has remained unchallenged and requires to be read as it is. It is also settled position of law propounded by Honourable Apex Court in catena of decisions, which is followed by all the Courts of the country, that when document is exhibited, it cannot be said that contents of the documents are proved. Admittedly, in this case, documents were produced and duly exhibited by the Honourable Court but contents of those documents are not proved. At the time of establishing the claim for recovery of the amount, the contents of the documents as well as correspondence took place between the parties is required to be placed on record. The parties have miserably Page 10 of 28 Downloaded on : Sun Sep 17 00:46:20 IST 2023 NEUTRAL CITATION C/FA/3371/2005 CAV JUDGMENT DATED: 09/08/2023 undefined failed to lead evidence as per the statutory provisions of the Evidence Act and in absence of any concrete material available on record, this Court could not be able to decide the lis pending between the parties.
8. This Court has raised certain pointed queries to the learned advocate of the respondent Mr.N.L. Ramnani about the admissibility of the documents, as without proving the contents of the document straightway exhibit was given to the documents. He has read the evidence on record and fairly conceded that it seems that evidence was not led by the parties in proper manner and consequential effect of said evidence, it is fact on record that in absence of the availability of appropriate wording (evidence), the language employed in the judgment is not found to be "happily worded" as due to lack of sufficient evidence and material available on record.
9. As the controversy in the present appeal pertains to leading evidence without following the established procedure as per the Evidence Act, we would like to refer to the decision of this Court in the case of State of Gujarat v. Ashokkumar Lavjiram Joshi rendered in Special Criminal Application No.2349 of 2018 decided on 06/04/2018, which would throw light upon the dispute involved in this matter. In the Page 11 of 28 Downloaded on : Sun Sep 17 00:46:20 IST 2023 NEUTRAL CITATION C/FA/3371/2005 CAV JUDGMENT DATED: 09/08/2023 undefined aforesaid decision, this Court has observed as under:-
"31. The real issue arises when a dispute is raised regarding the proof of a document or admissibility of a document in evidence which is tendered along with a list of documents or along with an affidavit in lieu of examination-in- chief. My attention was invited to the decision of the Apex Court in the case of Bipin Shantilal Panchal vs. State of Gujarat & Anr., 2001 Cr.L.J 1254. Paragraphs 12 to 15 of the said decision read thus:
"12. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the Court does not proceed further without passing order on such objection. But the fall out of the above practice is this: Suppose the trial Court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or revisional Court, when the same question is re-canvassed, could take a different view on the admissibility of that material in such cases the appellate Court would be deprived of the benefit of that evidence, because that was not put on record by the trial Court. In such a situation the higher Court may have to send the case back to the trial Court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-mouled to give way for better substitutes which would help acceleration of trial proceedings.
13. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial Court can make a note of Page 12 of 28 Downloaded on : Sun Sep 17 00:46:20 IST 2023 NEUTRAL CITATION C/FA/3371/2005 CAV JUDGMENT DATED: 09/08/2023 undefined such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. However, we make it clear that if the objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.
14. The above procedure, if followed, will have two advantages. First is that the time in the trial Court, during evidence taking stage, would not be wasted on account of raising such objections and the Court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior Court, when the same objection is re- canvassed and reconsidered in appeal or revision against the final judgment of the trial Court, can determine the correctness of the view taken by the trial Court regarding that objection, without bothering to remit the case to the trial Court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.
15. We, therefore, make the above as a procedure to be followed by the trial Courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence." (Emphasis supplied)
32. My attention was also invited to a subsequent decision of the Apex Court in the case of R.V.E.Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P.Temple and another, AIR 2003 SC 4548.. It must be stated here that the said decision is rendered in a Special Leave Petition arising out of a civil suit. However, the said decision will be relevant in so far as proof or admissibility of documents in evidence is concerned. Law of evidence as regards proof and admissibility of documents is the same which is applicable to both civil and criminal trials.
Page 13 of 28 Downloaded on : Sun Sep 17 00:46:20 IST 2023NEUTRAL CITATION C/FA/3371/2005 CAV JUDGMENT DATED: 09/08/2023 undefined It will be necessary to refer to the relevant part of the said judgment. In paragraph 20 the Apex Court has held as under:
"20. The learned counsel for the defendant- respondent has relied on the Roman Catholic Mission v. State of Madras and another, AIR 1966 SC 1457 in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the above said case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes :-
(i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind Page 14 of 28 Downloaded on : Sun Sep 17 00:46:20 IST 2023 NEUTRAL CITATION C/FA/3371/2005 CAV JUDGMENT DATED: 09/08/2023 undefined and pronounce its decision on the question of admissibility then and there: and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court." (Emphasis supplied)
33. Thus, the Apex Court has categorised the objections raised to the documents into two classes. One is where the admissibility of document in evidence is not in dispute, but it is contended that the document is not proved or the proof in support of the document is insufficient. The second category of objection is an objection that the document which is sought to be proved is itself inadmissible in evidence. The Apex Court held that in so far as in the first category where the dispute is of proof of documents is concerned, the objection should be taken at the earliest and the objection that the mode adopted for proving the document is irregular or insufficient cannot be allowed to be raised at any stage subsequent to the marking of the document as exhibit. In so far as the said category of objection that a document is not properly proved is concerned, the Apex Court observed that if the said objection is raised at the outset, it enables the Court to apply its mind and pronounce its decision on the question then and there. In the event of finding of the Court on issue of proof of document going against the party tendering the document in evidence, an opportunity of seeking indulgence of the Court for leading further evidence to prove the document by adopting proper mode is available. Insofar as the second category of objection is concerned, the Apex Court held that even if a document is Page 15 of 28 Downloaded on : Sun Sep 17 00:46:20 IST 2023 NEUTRAL CITATION C/FA/3371/2005 CAV JUDGMENT DATED: 09/08/2023 undefined marked as exhibit, an objection simplicitor as to its admissibility is not excluded and is available to be raised at a latter stage.
34. It must be noted here that there is one more category of objection which relates to insufficiency of stamp on the document sought to be tendered. On this aspect there is a decision of the Apex Court of its constitution bench consisting of five Hon'ble Judges in the case of Javer Chand and others Vs. Pukhraj Surana, AIR 1961 SC 1655. The Apex Court considered the provisions of section 36 of the Indian Stamp Act and relevant provisions of the Evidence Act. The Apex Court held as under:
"..... Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped it has to be decided then and there when the document is tendered in evidence. Once the Court rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned ig the matter is closed. Section 35 is in the nature of a penal provision and has far- reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court 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. The record in this case discloses the fact that the hundis were marked as Exhibits P.1 and P.2 and bore the endorsement 'admitted in evidence' under the signature of the Court. It is not, therefore, one of those cases where a document has been inadvertently admitted, without the Court applying its mind to the question of its admissibility. Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross examination of their witnesses, S.36 of the Stamp Act comes into consideration. Once a document ig 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. ....."
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35. As set out earlier, the Apex Court has made three categories of objections raised by rival party when the documents are produced in the Court of law. The first objection is regarding insufficiency of the proof and/or irregular mode adopted for proving the document. This objection is that the document has not been proved in accordance with law. The second objection is that the document is not properly stamped as required by the Stamp Act or Bombay Stamp Act as the case may be. The third objection is that the document sought to be proved is otherwise inadmissible in evidence. In the case of R.V.E.Venkatachala (supra) the Apex Court has made specific distinction between the first objection regarding the insufficiency of proof or irregular or incorrect mode of proof and the other objection regarding inadmissibility in evidence. The Apex Court observed that so far as the objection regarding the proof of document is concerned, the same has to be decided then and there. However, even after marking a document as exhibit, an objection to its admissibility can be raised at any stage of the proceedings. The decision on this objection can be postponed till the final disposal of the case. As pointed out earlier, as far as the objection regarding insufficiency of stamp is concerned, the constitution bench of the Apex Court has already held that such objection has to be raised before a document is marked as exhibit and the same has to be decided immediately.
36. On plain reading of the decision of the Apex Court in the case of Bipin Panchal (supra), it is apparent that the same does not deal with an objection as regards proof of a document or insufficiency of proof or incorrect mode of proof. The said judgment deals with objection regarding the admissibility of the document in evidence which is a separate category of objection as distinguished from an objection regarding proof as laid down by the Apex Court in the case of R.V.E.Venkatachala (supra). It is true that the procedure laid down by the Apex Court in the case of Bipin Panchal (supra) will have to be followed by the Courts sub-ordinate to this Court. However, the said decision of Apex Court is applicable only to one category of objection and, i.e., regarding the admissibility of the document in evidence and that decision Page 17 of 28 Downloaded on : Sun Sep 17 00:46:20 IST 2023 NEUTRAL CITATION C/FA/3371/2005 CAV JUDGMENT DATED: 09/08/2023 undefined has no application when an objection is raised to the proof or to irregular/insufficient mode of proof of a document. An objection raised regarding proof of documents or insufficiency of proof or of adopting incorrect mode of proof has to be dealt with immediately by the Trial Court before proceeding with the recording of the cross-examination. Only in a case where the said adjudication involves a decision on complicated questions which require a very detailed adjudication, it can be postponed till the final hearing. In a case where a document is proved in accordance with the Evidence Act but an objection is raised to the admissibility of the said document, as held by the Apex Court in the case of Bipin Panchal (supra), such document can be tentatively marked as an exhibit as objection to the admissibility can be decided at the stage of final hearing as contemplated in the decision of the case of Bipin Panchal (supra). As pointed out earlier, if objection regarding proof of a document is decided, the complainant or accused who has produced the said documents is put to the notice that the document is not held as proved so that he can seek indulgence from the Court of leading further evidence. This avoids possibility of parties applying at the stage of judgment for recalling the witness or for leading further evidence for proving a document. (See Geeta Marine Pvt. Ltd. vs. State, 2009 Cr.L.R 406)
37. Let me, for the benefit of the subordinate judiciary summarize the two decisions of the Supreme Court; one in the case of Bipin Shantilal Panchal (supra) and another in the case of R.V.E.Venkatachala (supra).
38. Shalimar Chemical Works /vs/ Surendra Oil, (2010) 8 SCC is one another decision of the Supreme Court by a two-judge Bench decided on August 27, 2010. In it, the plaintiff filed photocopies of a document which the trial judge marked subject to proof and admissibility. The Supreme Court faulted this procedure holding that he should have declined to exhibit it as well as shouldn't have left its admissibility open and hanging. In taking such view, the Court relied on Venkatachala's case (supra). Shalimar Chemicals, thus, espouses Venkatachala's ratio. I summarise their high points.
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39. Highlights / Bipin's Case (Para 13 To 16) * When an objection is raised, in the course of recording evidence in a trial, to a document's admissibility, the court can make a note of the objection and exhibit the objected document tentatively.
* If the objection relates to any piece of oral evidence, the court can similarly record the objected part of the evidence with a note of it· * The note must stipulate that the objection shall be decided at the last stage/final judgment. If it's sustained, the court can exclude such evidence from consideration. No illegality in adopting such a course.
* The procedure suggested has twin advantages. First, the trial court's time is saved at the evidence stage. And, it can continue with the examination of the witnesses obviating the need for their waiting for long hours.
* Secondly, when the same objection is re-argued in Appeal/Revision against the trial court's judgment, the superior court can decide the correctness of the trial court's view with ease. For, the objected document/ evidence is on record.
* The Supreme Court makes the above points as a procedure for trial courts to follow whenever the situation arises. However, If the objection is to stamp duty deficiency of a document, the court has to decide it before proceeding further.
40. Highlights / Venkatachala's Case (Para 20) * Objection to the admissibility of evidence should ordinarily be made, when it's tendered, not subsequently. A document inadmissible in evidence, though brought on Page 19 of 28 Downloaded on : Sun Sep 17 00:46:20 IST 2023 NEUTRAL CITATION C/FA/3371/2005 CAV JUDGMENT DATED: 09/08/2023 undefined record, must be excluded from consideration.
* Objection to a document's admissibility may be classified into two classes. One, the document itself is inadmissible in evidence. Two, the mode of proof is irregular.
* Just because a document has been exhibited, objection to its admissibility is not excluded; and it can be raised even in Appeal/Revision.
* When the objection pertains to the mode of proof, it should be raised before the evidence is tendered. Once the document is exhibited, objection to its mode of proof can't be raised at a subsequent stage. It's a rule of fair play.
* The omission to make such objection is fatal because by his failure the party entitled to object allows the opposite party to presume that he's not serious about the mode of proof.
* A prompt objection enables the court to apply its mind and pronounce its decision on admissibility then and there.
If the objection to mode of proof is raised immediately, the opposite party may mark the document through correct mode with the court's permission. This practice is fair to both parties."
10. It is an admitted fact on record that at the time of leading evidence, witness was brought into the witness box and deposition was recorded. Certain documents were exhibited, without reference being made in the deposition, simply on the production of the documents, exhibit numbers were given to the documents. As it is well settled proposition of law that when the document is produced on record, without Page 20 of 28 Downloaded on : Sun Sep 17 00:46:20 IST 2023 NEUTRAL CITATION C/FA/3371/2005 CAV JUDGMENT DATED: 09/08/2023 undefined referring to the contents of the documents, in that event, contents of the document cannot be said to be proved and in absence of proving the contents of the document one cannot be able to establish its case. It is true that at the time of recording of evidence of the plaintiff's witness, the Court concerned has not given due respect to the said principles and at the time of delivering judgment has given weightage to said set of evidence despite the fact that contents of the documents have not been proved. Prima facie, it seems that for the reasons best known to the defendants, half-heartedly the trial was proceeded on the ground that the defendants have not taken care to cross-examine the witnesses but that does not mean that if none appears on behalf of the defendants, in that situation, the plaintiff could not get license to lead evidence as per his choice by by-passing the provisions of the Evidence Act. It is found out from the judgment that at the time of delivering the judgments, learned Judge has not given adequate findings and reasons. It is the well defined proposition of law that the duty is casted on the head of the incumbent to assign reasons and findings at the time of delivering the judgment so that on the strength of the said decision making process, one would come to know why Honourable Court has reached to Page 21 of 28 Downloaded on : Sun Sep 17 00:46:20 IST 2023 NEUTRAL CITATION C/FA/3371/2005 CAV JUDGMENT DATED: 09/08/2023 undefined a particular conclusion. We have gone through the judgment and it is found out that at the time of considering, appreciating and evaluating the evidence, almost in all the points, learned Judge has opined that in the written statement and written submissions, the defendants have failed to disprove the evidence produced by the plaintiff and evidence was not appreciated, evaluated and discussed. The learned Judge has also not given specific findings and reasons to reach upon a particular decision and in absence of the same, the effect of the judgment would become redundant. At the time of perusal of the evidence of the plaintiff's witnesses, we have come to know that the evidence of the plaintiff's witness was not recorded as per the established practice and provisions of Evidence Act and, therefore, in absence of sufficient material available on record, learned Judge would not be able to assign proper reasons and deliver proper findings. Hence, he has simply rejected the defence of the defendant stating that they were not in a position to disprove the evidence led by the plaintiff, without discussing anything. Considering the above set of evidence available on record, we are of the opinion that appropriate opportunity is required to be provided to all the parties, considering the provisions of Order 41, Rule 23 of CPC with Page 22 of 28 Downloaded on : Sun Sep 17 00:46:20 IST 2023 NEUTRAL CITATION C/FA/3371/2005 CAV JUDGMENT DATED: 09/08/2023 undefined a sole intention to give more clarify to the issue involved in the matter, we would like to reproduce the provisions of Order 41, Rule 23, which are as under:-
"Order 41-
Rule 23. REMAND OF CASE BY APPELLATE COURT. Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand."
11. This Court is very much conscious about the fact that the matter cannot be remanded back to the Court below, without any basis, for the purpose of adducing fresh evidence or to explain the evidence available on record. We have gone through the evidence available on record, and it seems that there is no complete or effectual adjudication of the evidence as per the statutory provisions and on account of that the parties have suffered material prejudice.
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12. At this stage, we would like to put reliance upon the decision of the Honourable Apex Court in the case of State of Orissa v. Chanda Nandi reported in 2019-SCC-4-357, wherein the Honourable Apex Court has very succinctly stated that every judicial or/and quasi-judicial order passed by the Court/Tribunal/ authority concerned, which decides the lis between the parties must be supported with reasons to reach a particular conclusion. At this juncture, we would like to reproduce paragraph 9, 10 and 11 of the aforesaid judgment, which reads as under:-
"9. The need to remand the case to the High Court has occasioned because from the perusal of the impugned order, we find that it is an unreasoned order. In other words, the High Court neither discussed the issues arising in the case, nor dealt with any of the submissions urged by the parties and nor assigned any reason as to why it has allowed the writ petition and granted the reliefs to the writ petitioner which were declined by the Tribunal.
10. This Court has consistently laid down that every judicial or/and quasi-judicial order passed by the Court/Tribunal/Authority concerned, which decides the lis between the parties, must be supported with the reasons in support of its conclusion. The parties to the lis and so also the appellate/revisionary Court while examining the correctness of the order are entitled to know as to on which basis, a particular conclusion is arrived at in the order. In the absence of any discussion, the reasons and the findings on the submissions urged, it is not possible to know as to what led the Court/Tribunal/Authority for reaching to such conclusion. (See - State of Maharashtra vs. Vithal Rao Pritirao Chawan, (1981) 4 SCC 129, Page 24 of 28 Downloaded on : Sun Sep 17 00:46:20 IST 2023 NEUTRAL CITATION C/FA/3371/2005 CAV JUDGMENT DATED: 09/08/2023 undefined Jawahar Lal Singh vs. Naresh Singh & Ors., (1987) 2 SCC 222, State of U.P. vs. Battan & Ors., (2001) 10 SCC 607, Raj Kishore Jha vs. State of Bihar & Ors., (2003) 11 SCC 519 and State of Orissa vs. Dhaniram Luhar, (2004) 5 SCC
568).
11. The order impugned in this appeal suffers from aforesaid error, because the High Court while passing the impugned order had only issued the writ of mandamus by giving direction to the State to give some reliefs to the writ petitioner (respondent) without recording any reason."
13. It is the settled proposition of law that the statute mandates recording of reasons in support of an order and the adjudicating authority is obligated to do so, and at the time of deciding the lis reasons must be recorded. The requirement of recording reasons can be inferred from the facts and circumstances of the case, even if the statute does not expressly state it. If the order is subject to appeal or revision, recording of reasons become even more important because without them, the appellate or revisional authority will be unable to exercise power effectively because the appellate authority/ revisional authority would not be able to determine whether the facts were correctly ascertained, the law was correctly applied, and the decision was made on legal, relevant and existant grounds. The reasons recorded by the adjudicating authority need not be in detail or elaborate. The requirement of recording reasons will be met if only relevant Page 25 of 28 Downloaded on : Sun Sep 17 00:46:20 IST 2023 NEUTRAL CITATION C/FA/3371/2005 CAV JUDGMENT DATED: 09/08/2023 undefined reasons are recorded.
14. The power of judicial review can be used if the reasons recorded by such authority are clearly incorrect, legally untenable or completely foreign or irrelevant to the issue on hand. The validity of adjudicating authority's order must be determined by reasons recorded therein.
15. The practice of giving reasons ensures that concerned adjudicating authority has to fully focus on every aspect of the case, while reaching to a particular conclusion.
16. At the time of hearing of present appeal, certain pointed queries were raised with regard to whether the documents are proved as per the Indian Evidence Act or not. It is fairly submitted by learned AGP and learned advocate for the respondent that prima facie it seems that the evidence was not led as per the provisions of the Indian Evidence Act. Certain evidence, which is required to be brought on record, is not brought on record, as per the settled and established practice. In absence of important evidence in the form of documents being proved, the parties could not be able to prove and establish their claim. Learned advocate, Mr.Ramnani for the respondent has fairly conceded that evidence is required to be led in a particular manner and it is required and proved by the parties, which is not done in Page 26 of 28 Downloaded on : Sun Sep 17 00:46:20 IST 2023 NEUTRAL CITATION C/FA/3371/2005 CAV JUDGMENT DATED: 09/08/2023 undefined present case and the documents are only exhibited and they are not proved. Learned advocate, Mr.Ramnani has further submitted that, in absence of the evidence being proved, the parties could not be able to assist the Court in a proper manner and he has submitted an undertaking stating that if this Honourable Court allows present appeal with a specific direction to conclude the proceedings within time-frame scheduled and permission to lead the evidence afresh is given to both the sides, in that event, his client will not claim interest on the decretal amount from the date of passing of the order staying execution of decree till fresh decision that may be taken by the trial Court. He has also filed an undertaking to this effect on 14.7.2023, which reads as under:-
"This undertaking is given in the above matter by the undersigned, upon instructions from the Respondent, who is advocate representing the Respondent declaring that upon passing order of remanding the present First Appeal to the Hon'ble Trial Court at Gandhinagar for deciding the same afresh, the Respondent has agreed and consented that the Respondent shall not claim any interest on the amount as may be decreed in the original suit from the date of December 2005 i.e. when the order staying the execution of the decree was passed by this Hon'ble Court, till the date of decision of the suit afresh."
17. In view of above, learned AGP has also no objection, if the appeal is allowed with aforesaid direction.
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18. Accordingly, the present appeal is allowed.
Impugned judgment and order dated 31.1.2005 passed by learned Civil Judge, (S.D.), Gandhinagar in Special Civil Suit No.77 of 1997 is hereby quashed and set aside. The matter is remanded back to the concerned trial Court to decide it afresh in accordance with law, after affording an opportunity of leading evidence to both the sides. The concerned trial Court is directed to decide the suit proceedings as expeditiously as possible and preferably within a period of six months from the date of receipt of writ of this Court. The parties are also directed to cooperate with early hearing and disposal of the suit and they shall not seek any unnecessary adjournments. Record and Proceedings be sent back to the concerned trial Court forthwith. No order as to costs.
Sd/-
(ASHUTOSH SHASTRI, J.) Sd/-
(DIVYESH A. JOSHI, J.) Malek/Gautam Page 28 of 28 Downloaded on : Sun Sep 17 00:46:20 IST 2023