Kotana Nageswararao vs Yatham Naga Babu
2023 Latest Caselaw 2600 AP

    THE HON'BLE DR. JUSTICE K.MANMADHA RAO

      CIVIIL REVISION PETITION No. 719 OF 2020


ORDER:

This Civil Revision Petition is filed under Article 227 of

Constitution of India, aggrieved by the order in I.A.No.29 of

2020 O.S.No.20 of 2012, dated 05.02.2020 passed by the

learned VI Additional District Judge, Kakinada.

2. The brief facts of the case are that the petitioner

herein is the Plaintiff and the respondent herein is the

defendant. Originally, the petitioner filed O.S.No.20 of 2012

for specific performance based on an agreement of sale before

the Court of learned VI Additional District Judge, Kakinada

(for short "the Court below"). During the pendency of the said

suit, the respondent herein filed I.A.No.29 of 2020 under

Order VIII Rule 1-A (3) CPC seeking to receive the documents

to substantiate his case. On hearing both sides, the Court

below allowed the said petition. Aggrieved by the same, this

Civil Revision Petition is filed.

3. Heard Sri N. Siva Reddy, learned counsel for the

petitioner and Sri T. V. Jaggi Reddy, learned counsel for the

respondent.

4. The learned counsel for the petitioner argued that

the order passed by the Court below is erroneous and

contrary to law. He further submitted that though the

petitioner has submitted sufficient ground by way of his

counter, the Court below without considering the contentions,

erroneously passed the impugned order. The learned

counsel for the petitioner further contended that the

documents are fabricated one and created by the

respondent. Further, if the Ex.A1 is not executed by the

respondent, the signatures of his on Ex.A1 might be sent

the same to the expert for comparison.

5. Per contra, it is the contention of the learned

counsel for respondent that the respondent never

executed an agreement of sale and the same is rank

forged one. To prove his contention, he intends to file

the list of documents annexed to the petition.

6. In support of his contention, the learned

counsel for the respondent placed reliance on a judgment

of Hon'ble Supreme Court reported in Bipin Shantilal

Panchal Vs. State of Gujarat and Another1, wherein

the Hon'ble Apex Court held that:

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

AIR 2001 SC 1158

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.

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 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.)

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.

7. On a plain reading of the above citation, it is

observed that when an objection is raised for marking of a

document, the Court should permit the document to be

marked subject to objections. Thereafter, the parties may

be allowed to cross-examine the witnesses on the basis of

the said document. At the end of the trial while hearing the

arguments on the main, arguments regarding admissibility

of the document also be heard. In the present case, the

petitioner has taken objection on every document filed by

the respondent and his further contention is that those are

fabricated and concocted documents.

8. Admittedly, the suit has come up for trial and

the contention of the respondent is that due to non

availability of documents at the time of filing of the suit, he

could not file those documents and to prove his case, those

documents are very essential. Mere marking of

the document itself is not sufficient and there should be

judicial determination as to the nature of the document and

its admissibility. The petitioner has got an opportunity to

cross-examine the respondent on each and every

document. Moreover, the Courts should now make note of

objection, mark objected document tentatively as exhibit

and decide objection at final stage.

9. In view of the above discussion, this Court is

inclined to dispose of this Civil Revision Petition with a

liberty to the petitioner to agitate whatever the objection

raised by him at the time of marking of documents and

further during the course of trial, the trial Court shall

examine the objections and answer the same.

10. With the above observations, this Civil

Revision Petition is disposed of. Since the suit pertains to

the year 2012, the Court below is directed to dispose of the

same as expeditiously as possible, preferably within a

period of three (03) months from the date of receipt of a

copy of this Order. No costs.

As a sequel, all the pending miscellaneous

applications shall stand closed.

____________________ DR.K.MANMADHA RAO, J 28.04.2023 MNR

THE HON'BLE DR. JUSTICE K.MANMADHA RAO

CIVIL REVISION PETITION No. 719 OF 2020

.04.2023

MNR