C.Radha Krishna, Ananthapuram ... vs N.R.Raghunath, Ananthapuram ...
2022 Latest Caselaw 7140 AP

                                                                  BSS,J
                                                  C.R.P.No.838 of 2016

                                  1

             HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

                        C.R.P.No.838 of 2016
ORDER:

This Civil Revision Petition is filed by the

petitioners/plaintiffs under Article 227 of Constitution of India

against the orders dated 03.02.2016 passed by the learned Senior

Civil Judge, Hindupur, in O.S.No.23 of 2009 wherein and whereby

the learned trial Judge not permitted the petitioners to mark

photostat copy of agreement of sale dated 22.05.2006 as a

secondary evidence in view of objection raised by advocate for

respondents.

2. The petitioners/plaintiffs have filed suit against R1, R2/D1,

D2 for specific performance of contract in pursuance of agreement

of sale dated 22.05.2006 stating that R1, R2, who are absolute

owners of suit schedule property agreed to sell the same for a valid

consideration of Rs.5,29,600/- to them and also to R3, R4/D3, D4

and they received an advance amount of Rs.50,000/- and then

executed agreement of sale. They have stated that though three

months time is fixed for registration, time is never treated as

essence of contract and R3, R4, who are close friends and BSS,J C.R.P.No.838 of 2016

associates of R1, R2 retained original agreement of sale with them,

but gave a photostat copy of agreement of sale to them. They

alleged that R3, R4 have colluded with R1, R2 and hatched a plan

to knock away the entire property and they also came to an

understanding with R1, R2 to execute registered sale deed in their

favour alone leaving the petitioners. Therefore, petitioners have

filed suit against R1, R2 seeking relief of specific performance of

contract in pursuance of agreement of sale dated 22.05.2006 by

adding R3, R4/D3, D4 in the suit and filed photostat copy of

agreement of sale dated 22.05.2006. During the course of

evidence of petitioners/plaintiffs, they intended to mark photostat

copy of agreement of sale dated 22.05.2006 for which counsels for

R1 to R4 objected on the ground that it is a photostat copy. After

hearing both sides, the learned trial Judge relying on the ratio laid

down in Kiran Bansal Vs. T.Chandra Kala and another1 refused

to mark photostat copy of agreement of sale dated 22.05.2006 and

passed orders on the suit docket. Aggrieved by the orders passed

by learned trial Judge, petitioners have preferred present revision

petition stating that the order of the trial Court is vitiated by error

of law resulting in miscarriage of justice, which is liable to be set

2016(1) ALD 24 BSS,J C.R.P.No.838 of 2016

aside. They submit that the trial Court ought to have considered

that photostat copy is a secondary evidence covered by Section

63(2) of Indian Evidence Act and situation is governed by Section

65(a) of Indian Evidence Act and trial Court ought not to have

refused to mark the document as Ex.A1. It is the contention of the

petitioners that trial Court failed to consider that as per Ex.A4

letter, the original of agreement of sale is with R3, R4/D3, D4 and

R3, R4 also failed to produce original in spite of issuing notice to

them, due to that, photostat copy of agreement of sale ought to

have been marked in their evidence. They prayed to allow the

revision petition.

3. I have heard both sides.

4. The learned Senior Counsel Mr.K.Gopalakrishna, representing

on behalf of revision petitioners mainly contended that in spite of

petitioners have laid foundation as required under Section 65 of

Indian Evidence Act for adducing secondary evidence, trial Court

refused to mark photostat copy of agreement of sale dated

22.05.2006. He submits that petitioners/plaintiffs have

categorically mentioned in their pleadings that original agreement

of sale is with R3, R4/D3, D4 and petitioners also filed letter dated

23.07.2006 addressed by R3/D3 to petitioners herein wherein there BSS,J C.R.P.No.838 of 2016

is a recital that original agreement of sale dated 22.05.2006

executed by R1, R2 in their favour is with them and the said letter

also marked before the trial Court as Ex.A3. He would further

contend that notice also issued to the counsel appearing for R3, R4

to produce original agreement of sale dated 22.05.2006, which is

marked as Ex.A4 before the trial Court and then they issued reply

that no agreement of sale is in existence, which also marked as

Ex.A6. It is the contention of learned Senior Counsel that when

foundation is laid to receive secondary evidence, trial Court ought

not have refused to admit the document in evidence and

admissibility and it's evidentiary value and proof of the document

can only be decided at the time of final disposal of the case. He

relied on following precedent law:

1. Jagmail Singh & Another Vs. Karamjit Singh & Others

(Civil Appeal No.1889 of 2020, Judgment dated 13.05.2020

Supreme Court), wherein Hon'ble Apex Court after considering the

precedent law with regard to adducing secondary evidence held at

paras 15, 16 and 17, which reads as under:

" 15. In the case at hand, it is imperative to appreciate the evidence of the witnesses as it is only after scrutinizing the same opinion can be found as to the existence, loss or destruction of the original Will. While both the revenue BSS,J C.R.P.No.838 of 2016

officials failed to produces the original Will, upon perusal of the cross-examination it is clear that neither of the officials has unequivocally denied the existence of the Will. PW- 3 Rakesh Kumar stated during his cross-examination that there was another patwari in that area and he was unaware if such Will was presented before the other patwari. He went on to state that this matter was 25 years old and he was no longer posted in that area and, therefore, could not trace the Will. Moreover, PW- 4 went on to admit that, "there was registered Will which was entered. There was a Katchi (unregistered) Will of Babu Singh was handed over to Rakesh Kumar [2011 (4) SCC 240] Patwari for entering the mutation...". Furthermore, the prima facie evidence of existence of the Will is established from the examination of PW-1, Darshan Singh, who is the scribe of the Will in question and deposed as under :-

"I have seen the Will dated 24.01.1989 which bears my signature as scribe and as well as witness."

16. In view of the aforesaid factual situation prevailing in the case at hand, it is clear that the factual foundation to establish the right to give secondary evidence was laid down by the appellants and thus the High Court ought to have given them an opportunity to lead secondary evidence. The High Court committed grave error of law without properly evaluating the evidence and holding that the pre-requisite condition i.e., existence of Will remained unestablished on record and thereby denied an opportunity to the appellants to produce secondary evidence.

17. Needless to observe that merely the admission in evidence and making exhibit of a document does not prove BSS,J C.R.P.No.838 of 2016

It automatically unless the same has been proved in accordance with the law..."

2. Shaikh Aftab Ahmed and another Vs. Bhimrao and

Others(Judgment in W.P.No.8442 of 2019 dated 22.09.2021 of

Bombay High Court, wherein it is explained condition precedent

for admitting secondary evidence basing on ratio laid down by

Hon'ble Apex Court in Bipin Shantilal Panchal Vs. State of

Gujarat and Another2.

3. Dhanpat - Appellant Vs. Sheo Ram(deceased) through

Legal Representatives and Others - Respondents3, wherein it is

held that if any party to the suit has laid the foundation of leading

of secondary evidence either in the plaint or in evidence, then

secondary evidence cannot be ousted from consideration only

because, application for permission to lead secondary evidence was

not filed. The Hon'ble Apex Court also relied on decision in Bipin

Shantilal's case (referred supra), it is held in para 22, which

reads as under:

"22. There is no requirement that an application is required to be filed in terms of Section 65(c) of the Evidence Act before the secondary evidence is led. A party to the lis may choose to file an application which

(2001) 3 SCC 1

(2020) 16 SCC 209 BSS,J C.R.P.No.838 of 2016

is required to be considered by the trial court but if any party to the suit has laid foundation of leading of secondary evidence, either in the plaint or in evidence, the secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed."

4. Simar Pal Singh - Petitioner Vs. Hakam Singh -

Respondents4, wherein it is held at paras 2 and 3, which reads as

under:

"2. At the time when a petition is filed for producing secondary evidence nothing more needs to be proved than stating one of the grounds as required under Section 65 to justify the reception of secondary evidence. Whether the grounds do really exist or not could only be tested in the cross-examination if a basis is laid in the chief examination. The trial Court shall not receive secondary evidence if evidence is not even tendered for justification of production of the secondary evidence. A matter which is essentially one of evidence could not be expected to be proved even before consideration of the document by the Court. Even mere marking of the document will not supplant the requirement of proof in a manner known to law.

3. The Hon'ble Supreme Court has laid down in its decision Bipin Shantilal Panchal Vs. State of Gujarat (2001) 3 SCC 1 while setting out the procedure for

2009 SCC Online P & H 2502 BSS,J C.R.P.No.838 of 2016

receiving documents, when an objection is taken during the trial. The Hon'ble Supreme Court has castigated the practice of holding up trial on objections taken at the time of tendering documents in evidence. Inviting Courts to pass orders on objections has been termed by the Hon'ble Supreme Court as "archaic practice". That decision was rendered while dealing with reception of a document under Criminal procedure Code, but the procedure laid down in the said judgment has been adopted in several other cases even for documents tendered under the Civil Procedure Code."

5. Koneru Srinivas and another Vs. G.Sarala

Kumari5, wherein it is held at para 6, which reads as under:

"6. In the context of dealing with the applications for filing of secondary evidence, what becomes relevant for the Court is as to whether the necessary conditions precedent, were complied with, by the party filing that application. The truth, or otherwise, of the respective pleas, need to be taken into account, at a later stage. If the proposed secondary evidence conforms to the tests under Section 63 of the Act, the application needs to be allowed. Once it is shown that the preliminary steps contemplated under Section 66 are complied with, the question as to whether the document so received can be treated as relevant, or is admissible, can certainly be decided at a subsequent stage. Further, the question pertaining to the custody of the original

2013(1) ALD 635 BSS,J C.R.P.No.838 of 2016

and the efforts made by the concerned party to procure the same, can be the subject-matter of evidence. "

He prays to allow the revision petition.

5. The learned Senior Counsel for the respondents

Mr.O.Manohar Reddy, vehemently opposed the contentions raised

by learned counsel for the petitioners on the ground that when

existence of original document is not proved, the photostat copy of

the alleged agreement of sale cannot be received in the evidence

as a secondary evidence, which rightly held by learned trial Judge.

He would submit that if objection with regard to the mode of proof

is not taken at first instance, the respondents have no opportunity

to take the same afterwards and the evidence which is not

admissible is allowed to come on record and ultimately it is held

that the said evidence is inadmissible, which amounts to wasting of

the time of the Court and parties are forced to unnecessarily

adduce evidence in respect of the document, which is not

admissible in evidence. He relied on following precedent law:

1. Kiran Bansal Vs. T.Chandra Kala and another 6 ,

wherein it is held that when the original document itself is not

2015(6) ALT 670 BSS,J C.R.P.No.838 of 2016

admissible in evidence for want of registration, photo copy of such

document cannot be marked as secondary evidence.

2. J.Yashoda - Appellant Vs. K.Shobha Rani -

Respondent 7 , wherein it is held that for adducing secondary

evidence, it is necessary for the party to prove existence and

execution of the original document and condition laid down in

Section 65 must be fulfilled before secondary evidence can be

admitted. Para - 9 of the judgment, which reads as under:

" The rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a

(2007) 5 SCC 730 BSS,J C.R.P.No.838 of 2016

document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section. In Ashok Dulichand v. Madahavlal Dube and Another [1975(4) SCC 664], it was inter alia held as follows:

"After hearing the learned counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference. According to clause (a) of Section 65 of Indian Evidence Act, Secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved or of any person out of reach of, or not subject to, the process of the Court of any person legally bound to produce it, and when, after the notice mentioned in Section 66 such person does not produce it. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of clause (a) of Section 65, the appellant filed applications on July 4, 1973, before respondent No. 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, BSS,J C.R.P.No.838 of 2016

according to the appellant, he had filed Photostat copy. Prayer was also made by the appellant that in case respondent no. 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was however, nowhere stated in the affidavit that the original document of which the Photostat copy had been filed by the appellant was in the possession of Respondent No. 1. There was also no other material on the record to indicate the original document was in the possession of respondent no.1. The appellant further failed to explain as to what were the circumstances under which the Photostat copy was prepared and who was in possession of the original document at the time its photograph was taken. Respondent No. 1 in his affidavit denied being in possession appeared to the High Court to be not above suspicion. In view of all the circumstances, the High Court to be not above suspicion. In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the Photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court."

BSS,J C.R.P.No.838 of 2016

3. Dayamathi Bai (Smt) - Appellant Vs. K.M.Shaffi -

Respondent8 , wherein it is held that objection to mode of proof

as being irregular and insufficient should be taken at trial before

the document is marked as an exhibit and admitted to the record

and not later at appellate stage.

4. R.V.E.Venkatachala Gounder Vs. Arulmigu

Viswesaraswami & V.P.Temple and another 9 , wherein it is

explained the stage at which objection as to admissibility of

document can be raised, which is classified as (i) objection that

the document sought to be proved is itself inadmissible and (ii)

objection directed not against the admissibility of the document

but against the mode of proof thereof on the ground of irregularity

or insufficiency, which category (i) can be raised even after the

document is marked as exhibit or even in the appeal or revision,

but the objection under category (ii) can be raised when the

evidence is tendered but not after the document has been

admitted in evidence and marked as an exhibit. Para - 20 of the

judgment reads as under:

" The learned counsel for the defendant-respondent has relied on The Roman Catholic Mission Vs. The State of

(2004) 7 SCC 107

(2003) 8 SCC 752 BSS,J C.R.P.No.838 of 2016

Madras(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 a 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 BSS,J C.R.P.No.838 of 2016

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 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 latter 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 a superior Court. "

He prays to dismiss the revision petition.

6. Now, the issue that emerges for consideration by this Court

is: "Whether the order under challenge is sustainable, tenable

and whether the same warrants any interference of this Court

under Article 227 of Constitution of India?"

BSS,J C.R.P.No.838 of 2016

7. POINT: Before going to the merits of the case, it would be

beneficial to quote Section 65 of Indian Evidence Act, which reads

as under:

"65. Cases in which secondary evidence relating to documents may be given.--Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:--

(a) When the original is shown or appears to be in the possession or power-- of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;

(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;

BSS,J C.R.P.No.838 of 2016

(d) when the original is of such a nature as not to be easily movable;

(e) when the original is a public document within the meaning of section 74;

(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in 1[India] to be given in evidence2; 1[India] to be given in evidence2;

(g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents."

8. On perusal of above referred provision, which makes it clear

that as per Section 65(a) to (g) of Indian Evidence Act, secondary

evidence may be given to the existence, condition or contents of BSS,J C.R.P.No.838 of 2016

document, when the original is shown or appears to be in the

possession or power or the person against whom the document is

sought to be proved or of any person out of which all are not subject

to the process of the Court, or of any person legally bound to produce

it and after the notice mentioned in Section 66 of the Act, such person

does not produce it.

9. The objection with regard to marking of documents has been

raised in many civil suits before trial Courts and orders passed thereon

subject to many revision petitions filed before this Court inspite of

clear and categorical findings of Hon'ble Apex Court in

R.V.E.Venkatachala Gounder Case (referred supra) and also ratio

laid down by Hon'ble Apex Court in Bipin Shantilal Panchal Case

(referred supra), wherein Hon'ble Apex Court deprecated the practice

in respect of the admissibility of any material evidence, where the

Court does not proceed further when passing on such objection. It was

held that all objections raised shall be decided by the Court at the

final stage. It is held at paras - 13, 14 and 15 of the judgment, which

reads as under:

"13. 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 BSS,J C.R.P.No.838 of 2016

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- moulded to give way for better substitutes which would help acceleration of trial proceedings.

14. 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 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 BSS,J C.R.P.No.838 of 2016

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.)

15. 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."

10. In the present case, suit is filed by the petitioners seeking

specific performance of a contract wherein they pleaded that R1, R2

have executed agreement of sale in their favour and also in favour of

R3, R4 and R3, R4 kept original agreement of sale with them and gave

photostat copy of the document to them, due to that, they could not

file the original. The said aspect which they have mentioned in their BSS,J C.R.P.No.838 of 2016

plaint itself is prima facie amounts to foundation in the plaint with

regard to their request for receiving secondary evidence. Even

petitioners made an attempt to secure alleged original agreement of

sale by issuing notice to learned counsel for R3, R4, who replied that

the said document is not available. The petitioners also filed letter

dated 23.07.2006 said to be addressed to them by R3/D3 and two

others wherein it is recited that original agreement of sale dated

22.05.2006 executed by R1, R2 is with R3/D3. The said letter also

marked as Ex.A3 before the trial Court. Whether the photostat copy

of agreement of sale is proved and whether the petitioners are

entitled for relief sought in the plaint can only be decided at the final

stage of the case after adducing evidence by both parties. In the

similar circumstances, this Court in Koneru Srinivas and another Vs.

G.Sarala Kumari's case(referred supra) held that the question as to

whether document so received can be treated as relevant or is

admissible can certainly be decided at a subsequent stage including

the custody of the original and the efforts made by the concerned

party to produce the same, is subject matter of evidence. In the

present case also petitioners are pleading that original agreement of

sale dated 22.05.2006 is with R3, R4, which fact also they stated in

their plaint and they are relying on the contents of Ex.A3 letter said BSS,J C.R.P.No.838 of 2016

to be addressed by R3/D3 to them. In those circumstances,

petitioners cannot be denied of marking photostat copy of agreement

of sale dated 22.05.2006 as a secondary evidence. The decision

relied on by learned Senior Counsel for respondents with regard to

mode of proof and even ratio laid down by this Court in Kiran Bansal

Vs. T.Chandra Kala and another's case (referred supra) relied on

by learned trial Judge is mainly on the ground that the original itself

is not admissible as it is compulsorily registerable document, which is

liable for stamp duty and penalty and photostat copy of it cannot be

marked. The same principle cannot be applied in the present case in

view of prima facie factual foundtion laid by the petitioners for

adducing secondary evidence as required under Section 65 of Indian

Evidence Act. Therefore, orders passed by the learned trial Judge

refusing to mark the agreement of sale dated 22.05.2006 as

secondary evidence are not legal, which needs interference by this

Court under Article 227 of Constitution of India. However, the

respondents are at liberty to raise objection with regard to

admissibility and its evidentiary value at the time of final disposal of

the case. The trial Judge shall record the objection of learned

counsel for the respondents/defendants at the time of marking BSS,J C.R.P.No.838 of 2016

agreement of sale dated 22.05.2006 and then mark the document and

proceed with trial of the case.

11. In the result, the Civil Revision Petition is allowed. No order as

to costs. Consequently, miscellaneous petitions pending if any, shall

stand closed. The learned trial Judge is directed to allow the

petitioners to mark photostat copy of agreement of sale dated

22.05.2006 as secondary evidence by recording objection of learned

advocate for respondents and then proceed to dispose of the case and

he shall decide the admissibility of photostat copy of agreement of

sale dated 22.05.2006 at the time of final disposal of the case. It is

needless to say that any observations made by this Court with regard

to the merits of the case and in respect of photostat copy of

agreement of sale dated 22.05.2006 are for the purpose of disposal of

this revision petition only and it shall not come in the way of the trial

Court disposing and appreciating the document dated 22.05.2006 at

the time of final disposal of the case.

______________________ BANDARU SYAMSUNDER, J Dt:19.09.2022.

Rns BSS,J C.R.P.No.838 of 2016

HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

C.R.P.No.838 OF 2016

Date: 19.09.2022

Rns BSS,J C.R.P.No.838 of 2016

13. 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-moulded to give way for better substitutes which would help acceleration of trial proceedings.