Bombay High Court
Mr.Hemendra Rasiklal Ghia vs Subodh Mody on 16 October, 2008
Bench: V.C. Daga, V.M. Kanade
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
AND
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 623 OF 2005
Mr.Hemendra Rasiklal Ghia. ... Petitioner.
V/s.
Subodh Mody. ... Respondent.
WITH
WRIT PETITION NO. 1902 OF 2005
Naresh Amritlal Shah & others. ... Petitioners.
V/s.
Kantilal Chunilal Shah & others. ... Respondents.
ig WITH
ADMIRALTY SUIT NO. 31 OF 1995
V.M.Salgaocar & Bro. Ltd. ... Plaintiff.
V/s.
M.V.Priyamvada and another. ... Defendants.
WITH
SUIT NO. 3681 OF 1996
Mrs.Vandanaben Vinodbhai Nagarshet ... Plaintiff.
V/s.
Kulin Morarji Gala and others. ... Defendants.
WITH
TESTAMENTARY SUIT NO. 19 OF 1999
Captain Allan J. Couto & another. ... Plaintiffs.
V/s.
::: Downloaded on - 09/06/2013 13:59:11 :::
Mrs.Rita Pinto. ... Defendant.
(appearance in W.P.No.623/2005)
Shri P.S.Parikh with Smt.Sujata
Mahadgat for the petitioner.
Shri N.Y.Gupte for the respondent.
(appearance in W.P.No.1902/2005)
Shri H.M.Advani for the petitioner.
Shri S.G.Aney, senior counsel with
S.V.Mhatre for respondent Nos.1 & 3.
Shri R.M. Patne, A.G.P. for
respondent No.4.
(appearance in Admiralty Suit No.31/1995)
Shri A.M.Vernekar for the plaintiff.
Shri V.C.Kotwal for the defendant.
(appearance in Suit No.3681/1996)
Shri A.C.Sampat for the plaintiff.
(appearance in Test.Suit No.19/1999)
Shri V.R.Dhond i/b. Federal &
Rashmikant for the plaintiff.
Mr.Zal Andhyarujina i/b. Ms.R.
Kantawala for the defendant.
CORAM: SWANTANTER KUMAR, C.J.
V.C.DAGA, J. AND
V.M.KANADE, J.
DATED: 16th October 2008.
JUDGMENT : (Per Vijay Daga, J.)
--------
. The question presented in these cases require
us to resolve two conflicting lines of precedents on
the one hand, as the Court stress that "it is
- 3 -
necessary for Court to decide about admissibility of
documents before they are exhibited in evidence". On
the other, some of the learned Judges of this Court
have no less categorically said that admissibility of
evidence and proof of document should be reserved
until judgment in the case is given
Contextual Facts :
---------------
2. It is not necessary to sketch the detailed
contextual facts of all cases placed before us.
Suffice it to refer two sets of precedents reflecting
conflicting
igopinions giving rise to the present
reference.
3. In Writ Petition No.1902/05, the petitioners,
who are original defendants, have objected to the
order dated 12th January, 2005 by which the learned
trial Judge has marked 126 documents as exhibits with
the following directions:
"All the documents relied upon by the
plaintiffs in the list of documents from
Sr.No.1 to 126 are marked as Exhibits subject
to production & proof thereof, under the
Evidence Act."
The above order has been made in respect of the
documents tendered along with affidavit of evidence
- 4 -
filed by the respondents (original plaintiffs). The
admissibility has been objected by the petitioners
(original defendants). It was the principal
contention of the learned counsel for the petitioners
that the objection to the admissibility of these
documents which were mainly books which refer to
religious practice of a particular set, are so
voluminous that it is not possible for the petitioners
to determine which document should be made subject of
cross-examination and which may not, having regard to
the fact, the Court has exhibited the said documents
tentatively subject to proof.
4. The learned counsel for the petitioners
submitted before the learned single Judge that the
cross-examination as regards all documents would be
fruitless, in case it is eventually held that the
documents are inadmissible. Therefore, the submission
of the learned counsel was that it was imperative and
also in accordance with the procedure prescribed by
law that the admissibility of these documents ought be
decided at the stage at which the objection to their
being exhibited is taken.
5. In the another writ petition, being Writ
Petition No.623 of 2005, the petitioner is a
defendant. He has been sued for damages in respect of
- 5 -
certain allegedly defamatory statements. The
petitioner therein has objected to the admissibility
and relevance of the evidence tendered by the
respondent in the examination-in-chief by way of
affidavit under Order XVIII Rule 4 of the Code of
Civil Procedure ("C.P.C." for short). The trial Court
ruled that the question whether or not a particular
statement is relevant or admissible cannot be gone
into before cross-examination of the witness and can
be considered finally at a later stage.
6.
petitioner
Being
ig aggrieved
invoked
by the above
writ jurisdiction of the
order,
learned
the
Single Judge and pressed into service the grounds
similar to those in Writ Petition No.1902/2005.
According to the learned counsel, pending decision as
to the admissibility and relevance of the statements
in the affidavit of evidence, it was difficult for the
petitioner (original defendant) to decide whether to
cross-examine the witness as to those statements,
which were objected to as inadmissible.
7. One view, relied upon by the learned counsel
for the petitioners in the above petitions was as
reflected in two decisions of the learned single
Judges of this Court, one rendered by Shri
R.M.S.Khandeparkar, J. (as he then was) in
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Durgashankar v. Babubhai,
Babubhai 2003 (2) Mh.L.J. 576 and
the other rendered by Dr.D.Y.Chandrachud, J. in
Bharat R. Desai v. Naina M. Bhal 2004 (2) Bom.C.R.
695. In these cases, having regard to the provisions
of Order XIII and Order XVIII of C.P.C. the two
learned single Judges have held that while allowing
the parties to lead evidence in the form of
affidavits, if objected to, the admissibility of
documents must be decided by the Court before the
documents are exhibited in evidence and that decision
cannot be postponed to a later stage such as the final
disposal
the
of
judgements
the case.
of the
These judgements relied
Supreme Court referred
upon
to
therein.
8. The other view relied upon by the learned
counsel for the respondents in both these petitions
was as reflected in the decisions of a learned single
Judge of this Court in Boman P. Irani v. Manilal P.
Gala,
Gala AIR 2004 Bom. 123 decided by Shri S.J.Vazifdar,
J. wherein the learned single Judge relied upon the
observation of the Supreme Court in Bipin Shantilal
Panchal v. State of Gujarat,
Gujarat AIR 2001 SC 1158,
reiterated in another judgment in the case of State v.
Navjot Sandhu,
Sandhu (2003) 6 S.C.C. 641; wherein the
Court was pleased to hold that the documents in
question may be taken on record and marked as exhibits
- 7 -
tentatively subject to the objections raised by the
defendants for decision at the last stage in the final
judgement on the preliminary issue. A similar view,
albeit in relation to the evidence recorded by a
Commissioner has been expressed by another single
Judge, Shri S.U.Kamdar, J. (as he then was), in Oil
and Natural Gas Corporation Ltd. v. FPU Tahara and
Anr.,
Anr. (Notice of Motion No.1609 of 2005 in Admiralty
Suit No.54 of 1999) decided on 24.6.2005 (unreported).
9. Having regard to the conflicting views of the
learned
single Judges of this Court and having regard
to the importance of question, learned single Judge of
this Court (Shri S.A.Bobde, J.) found it necessary to
refer the following question for decision by a larger
bench in accordance with Rule 7 of Chapter I of the
Bombay High Court (Appellate Side) Rules.
"Whether objections as to the admissibility or
mode of proof of evidence, oral and
documentary, should be decided upon when
raised or whether decisions thereon can be
deferred to a later stage?"
10. Before turning to the question referred, it is
necessary to recapitulate the rival submissions
canvased before us.
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Rival Submissions :
-----------------
11. Mr.D.S.Parikh, learned senior counsel
appearing with Mrs.Sujata Mahadgad for the petitioner
(in W.P.No.623/05) in his well search submissions
reiterated the view taken by the learned single Judges
in the cases of Durgashankar (supra) and Bharat R.
Desai (supra) and urged that the provisions of Order
XIII of C.P.C. and the Civil Manual are indicative of
the legal position that the objection to the
admissibility, relevancy or proof of documents
produced in evidence should be decided at the time
when such
documents are tendered in evidence and
should not be left for decision at the stage of final
arguments in the suit.
12. Mr.Parikh submitted that the Supreme Court has
held in the case of R.V.E. Venkatchalla Gounder v.
Arulmighu Viswesaraswamy and V.P.Temple and Anr.,
Anr.
(2003) 8 SCC 752 that under Order XIII Rule 4 of
C.P.C. every document admitted in evidence in the
suit has to be endorsed by the Court, which
endorsement required to be signed or initialled by the
Judge amounts to admission of the document in
evidence. That an objection to the admissibility of
the document should be raised before such endorsement
is made and the Court is obliged to form its opinion
- 9 -
on the question of admissibility and express the same
on which opinion would depend the document being
endorsed as admitted or not admitted in the evidence.
13. Mr.Parikh while canvassing the effect of Order
XVIII Rule 4 of C.P.C. submitted that juxtaposition
and the context of the proviso of sub-rule (1) of Rule
4 of Order XVIII indicates that the question of
admissibility and proof of the documents filed along
with the affidavit of examination-in-chief should be
decided by the Court, when the affidavit of
While
examination-in-chief is taken on record by the Court.
placing reliance on proviso to sub-rule (4), he
submits that the said sub-rule is also indicative of
the two stages at which the admissibility, relevancy
and proof of documents have to be considered, viz.;
(i) the stage when documents are tendered or produced
with the affidavit of examination-in-chief of a
witness, and (ii) the stage when documents are
tendered or produced in the course of
cross-examination and re-examination of a witness.
According to him, the proviso to sub-rule (1) of Rule
4 lays down that proof and admissibility of documents
filed by a witness along with his affidavit of
examination-in-chief shall be decided by the Court,
before the next step is taken that of appointment of
the Commissioner by the Court for recording the
- 10 -
cross-examination and re-examination of the witness.
In his submission, after the Commissioner records the
cross-examination and re-examination of the witness,
including the objections raised by either party during
the course of such examination, the Commissioner
submits his report to the court. Such objections have
to be decided by the Court "at the stage of arguments"
as provided in the proviso to Order XVIII Rule 4(4) of
C.P.C.
14. Mr.Parikh, after having described the role of
provision
reiterate
of Order XVIII Rule 4 of C.P.C., went on to
that it is a settled principle of law that
question of admissibility should be decided then and
there. He pressed into service the views expressed by
Wardroof and Amirali in Law of Evidence 17th Edition
(Volume 1 Page 674) to buttress his submissions.
15. Mr.Parikh also referred to some of the
judgments of the Privy Council, the Hon'ble Supreme
Court and various High Courts including this Court in
support of his submission, the detailed reference of
which at this stage is not necessary since reference
to them is being made in the later part of this
judgment.
16. Mr.V.C.Kotwal, learned counsel urged that
- 11 -
exclusion of evidence at the stage when the objection
is raised would not only save time but expedite
disposal of the suits or proceedings. He submits that
if the decision on the objection as to admissibility
or mode of proof of documentary evidence and relevancy
of oral and documentary evidence is allowed to be
postponed to stage of judgment then in that event
public policy would clearly be flouted.
17. Mr.Kotwal in support of his submission pressed
Act
into service various provisions of the Indian Evidence
and tried to cull out legislative intent leading
to public policy. According to him, the Parliament in
its wisdom has quite specifically refrained from
making any changes in the Evidence Act and in
particular the sections thereof which on a correct
interpretation require that evidence of the type
mentioned in sections 4, 5, 21, 66, 91, 92, 93 and 123
of the Evidence Act is required to be excluded and are
not allowed to be given or brought on record. He
further submits that even the Law Commission in its
157th report did not recommend any change in law of
evidence. Significantly, the Commission has not even
referred to the case of Bipin Shantilal Panchal
(supra) in its report. In his submission, judgment of
the Apex Court in the case of Bipin Shantilal Panchal
- 12 -
(supra) does not take into account public policy of
excluding evidence which is irrelevant and
inadmissible. He, thus, supported the submission
canvassed by Mr.Parikh.
18. The aforesaid submission canvassed by
Mr.Parikh and Mr.Kotwal are supported by M/s.
V.R.Dhond and M.H.Advani.
Per Contra :
----------
19. Mr.S.G.Aney, learned senior counsel appearing
with Mr.S.V.Mhatre in his usual persuasive manner
supported the view taken by two learned single Judges
of this Court in the case of Boman P. Irani (supra)
and Oil and Natural Gas Corporation Ltd. (supra),
contending that their views are based on Supreme Court
judgments one in Bipin Shantilal Panchal and other in
State v. Navjot Sandhu (cited supra) and shall go a
long way in curtailing delay in disposal of suits.
20. In the submission of Mr.Aney, the judgment of
the Apex Court in Bipin Shantilal Panchal (supra) is
by larger bench presided over by Justice K.T.Thomas
and applies to both civil as well as criminal cases.
- 13 -
He submits that this judgment binds all subordinate
courts including this Court.
21. Mr.Aney heavily relied upon the view taken by
the learned single Judge in the case of Boman P.
Irani (supra) and went on to submit that the decision
on the objection should be postponed till the final
hearing so that the trial should not be hampered. He
submits that the affidavit of evidence tendered on
record should be accepted subject to objections and
the documents should also be allowed to be marked as
exhibits subject to objections to be considered at the
last stage in the final judgment. According to him,
his submission is in consonance with the Statement of
Objects and Reasons of the Civil Procedure Code
Amendment Act, 2002 whereby Order XVIII Rule 4 was
introduced. In his submission, para 3(e) of the
Statement of Objects and Reasons suggests that the
whole object is to reduce the delay in the trial. If
the object of the amendment was to avoid delay in
final disposal, then the decision of the Supreme Court
in Bipin Shantilal Panchal (supra) needs to be applied
to civil cases and the practice prescribed therein
should be followed. Mr.Aney, thus, tried to support
the view leading to postponement of the decision till
the final hearing of the suit with regard to the
admissibility or mode of proof of evidence or
- 14 -
relevancy of oral and documentary evidence tendered in
the suit.
22. The aforesaid submissions canvassed by Mr.Aney
are supported by Mr.N.Y.Gupte, learned counsel
appearing in the companion matter.
23. Mr.Z.T.Andhyarujina, learned counsel appearing
for the defendants in Testamentary Suit No.19/1999
tried to carve out a middle path contending that there
is no mandate in law that the objections must be
decided
submission,
at
ig a particular
generally, it
stage.
is
However,
desirable that
in his
the
objections must be decided at the earliest. He
submits that in some deserving cases involving
complicated questions of law, it may, however, be
desirable that the decision on the objection may be
deferred to a later stage. He, thus, submits that
practical approach must be adopted by the courts. He
submits that while deciding the issue as to whether to
hear objections to evidence immediately or to defer
such decision, the courts must consider the effect of
such decision both on the party producing the evidence
and other parties to the proceeding.
24. Mr.Andhyarujina urged that the advantages of
entertaining and deciding objections at the outset are
- 15 -
many. For instance, it enables the party producing
the evidence to know whether it will be able to prove
a fact based on the evidence produced, or whether he
would be required to produce further or other
evidence. It also enables the party cross-examining
the witness to know whether or not he is required to
cross-examine the witness on a particular document
produced or a statement made in the affidavit of
evidence. In the event, party elects to cross-examine
on such document he will no longer be entitled to
raise any objection to the same. On the other hand,
if he does
ignot cross-examine the witness
document, and the document is eventually admitted into
on such
evidence, the same would remain unrebutted. Deferring
the ruling on objections also works unfairly upon the
party producing the evidence, as he has no opportunity
to introduce fresh evidence, in the event of the
evidence produced being held to be inadmissible.
25. Mr.Andhyarujina, thus, submits that weight of
authorities, however, suggests that it is salutary
that the objections must be decided at the earliest
opportunity. In short, he submits that it is not
desirable to lay down any hard and fast rule as to at
which stage the Court should decide admissibility or
mode of proof or relevancy of documentary and/or oral
evidence. He submits that it should be left to the
- 16 -
discretion of the Judge trying the suit.
26. Before embarking upon the rival contentions of
the parties, we may notice relevant statutory
provisions.
Relevant Statutory Provisions :
-----------------------------
27. In order to understand and appreciate this
question referred; and to come to the conclusion as
to what proper answer should be to this question, few
relevant statutory provisions of C.P.C., Civil Manual
need to be noticed at the outset.
C.P.C. :
------
Rule 3 of Order XIII of C.P.C. provides that
"The Court may at any stage of the suit reject
any document which it considers irrelevant or
otherwise inadmissible, recording the grounds
of such rejection.
Rules 4 and 6 of Order XIII which are very
much relevant for the decision in the matter
read thus:
"4.
4. Endorsement on documents admitted in
evidence.-
evidence (1) Subject to the provisions of
- 17 -
the next following sub-rule, there shall be
endorsed on every document which has been
admitted in evidence in the suit the following
particulars, namely:-
(a) the number and title of the suit,
(b) the name of the person producing
the document,
(c) the date on which it was produced,
and
(d) a statement of its having been so
admitted;
and the endorsement shall be signed or
initialled by the Judge.
(2) Where a document so admitted is an entry
in a book, account or record, and a copy
thereof has been substituted for the original
under the next following rule, the particulars
aforesaid shall be endorsed on the copy of the
endorsement thereon shall be signed or
initialled by the Judge.
Provided that in proceedings in the Bombay
City Civil Court, the endorsement may be
signed or initialled by such officer as the
Principal Judge may authorise in this behalf.
Or, in the case of a High Court, by an officer
in Court under the order of the Judge or one
of the Judges.
Provided that where the Court is satisfied
that the document, not endorsed in the manner
laid down in the above rule, was in fact,
admitted in evidence, it shall treat the
document as having been properly admitted in
evidence unless non-compliance with this rule
has resulted in miscarriage of justice.
6. Endorsements on documents rejected as
inadmissible in evidence.-
evidence. Where a document
relied on as evidence by either party is
considered by the Court to be inadmissible in
evidence, there shall be endorsed thereon the
particulars mentioned in clauses (a), (b) and
(c) of Rule 4, sub-rule (1), together with a
statement of its having been rejected, and the
endorsement shall be signed or initialled by
- 18 -
the Judge.
Provided that in proceedings filed in the
Bombay City Civil Court the endorsement may be
signed by such officer as the Principal Judge
may authorise in this behalf.
Order XVIII Rule 4 of C.P.C. is also one of
the relevant provisions for deciding the
question referred. Dissection of the said
provision would show-
(1.1) that sub-rule (1) of rule 4 provides
that the examination-in-chief of a witness
shall be on affidavit. The proviso thereto
provides that where documents are filed or
relied upon by the parties, the proof and
admissibility of such documents shall be
subject to the orders of the Court.
(1.2) Sub-rule (2) of rule 4 provides that
the evidence by way of cross-examination and
re-examination of the witness shall be
recorded by the Court or by the Commissioner
appointed by the Court.
(1.3) Sub-rule (4) thereof provides that the
Commissioner may record remarks as to the
demeanour of the witness under examination.
The proviso thereto lays down that any
objections raised during the recording of
evidence before the Commissioner shall be
recorded by him and decided by the Court at
the stage of arguments.
(1.4) Sub-rule (5) thereof provides that the
report of the Commissioner shall be submitted
to the Court appointing the commission.
(1.5) Sub-rule (6) thereof provides for
preparation of panel of Commissioners to
record the evidence under this rule.
(1.6) Sub-rule (7) thereof provides for
fixation of remuneration for the services of
the Commissioner.
- 19 -
(1.7) Sub-rule (8) thereof provides that
provision of rules 16, 16-A,, 17 and 18 of
Order 26 shall apply to the issue, execution
and return of such commission under Order 18
rule 4.
(1.8) Order 26 rule 16-A provides for the
procedure to be followed by the Commissioner
when the question put to a witness is objected
by his pleader.
Bombay Civil Manual :
-------------------
The other relevant provisions of Civil Manual
are:
(2.2) The Bombay Civil Manual also makes
provision for production and marking of
documents as Exhibits. Chapter 27 thereof
contains the following provisions:
Paragraph 552(1). All documents tendered in
evidence shall be accompanied by a list in the
form given as Nos.5 in Appendix of the First
Schedule of the Code of Civil Procedure.
Paragraph 523(1). As soon as the list is
filed, the Bench Clerk should endorse on the
back of each document the particulars
mentioned in clauses (a), (b) and (c) of Rule
4(1), Order 13, Civil Procedure Code.
Paragraph 524. If a document included in the
list is referred to in the proceedings before
it is tendered in evidence and formally
proved, it should be immediately marked for
identification. When it is tendered in
evidence it should be detached from the list.
If rejected, it should be endorsed as
prescribed by Order 13 Rule 6, Civil Procedure
Code, and returned. If admitted, the
endorsement referred to in the above Rule
should be completed and signed by the Judge
(order 13 Rule 4, Civil Procedure Code) and
the document should be assigned the
appropriate exhibit number and filed in the
- 20 -
record and all references to it in the
depositions and judgment should bear that
number. Every document should be further
marked with the letter "P" or "D", according
as it is tendered by the plaintiff or the
defendant. The number assigned to each
document should be endorsed on the list of
documents mentioned above.
Effects of the Amending Act of 2002 :
-----------------------------------
28. Having said so, in order to answer the
question referred, it is also necessary to examine
what is the effect of amendment made by the Code of
Civil Procedure (Amendment) Act, 2002 whereby Order
XVIII
Rule 4 has been amended. Before the aforesaid
provision of amended Rule 4 of Order XVIII is taken
into consideration, it will be necessary to consider
the brief background which resulted in amendment of
the said Rule 4 of Order XVIII.
29. In view of the concern expressed from various
quarters over the pending arrears and need to manage
the explosion of dockets, suggestions were invited
from Committees which were constituted to tackle this
problem. Various Committees were formed from time to
time which have given their recommendations for
curtailing the arrears of pending cases.
- 21 -
Sharadchandra Committee as also Malimath Committee's
report submitted in 1989-90 had given various reasons
and had made various categories of causes, which were
responsible for causing delay in disposal of cases in
trial courts and other courts. It was stated in the
report that maximum time of the trial court was taken
in recording of evidence and it was felt that if this
work of recording of evidence was given to some other
agency, the Court could find more time for disposal of
interlocutory applications and for final disposal of
cases.
30. In
163rd report of Law Commission of India on
the Code of Civil Procedure (Amendment) Bill, 1997 in
Chapter-II under the heading "Recommendations and
Conclusions Regarding the Code of Civil Procedure
(Amendment) Bill, 1997", it is stated in para 2.3 (e)
as under:-
"2.3 The Amendment Bill seeks to make some of
the following important changes in the Code of
Civil Procedure, 1908 (as indicated in the
Statement of Objects and Reasons annexed with
the Bill):-
(a) ..... ..... .....
(b) ..... ..... .....
(c) ..... ..... .....
(d) ..... ..... .....
(e) As maximum time is consumed by the
courts in recording oral evidence
- 22 -
which causes delay in disposal of
cases, it is proposed to reduce such
delay by making provisions for filing
of examination-in-chief of every
witness in the form of an affidavit.
For the cross- examination and
re-examination of witnesses, it is
proposed that it shall be recorded by
a commissioner to be appointed by the
court and the evidence recorded by a
Commissioner shall become part of
record of the suit;
(f) ..... ..... .....
(g) ..... ..... .....
(h) ..... ..... .....
(i) ..... ..... .....
(j) ..... ..... .....
ig ..... ..... ....."
It was, therefore, felt that the Commissioner who was
empowered to record statements of witnesses under
Order XXVI under certain exceptional circumstances,
should be given the power to exclusively record the
evidence of witnesses. This was taken into
consideration in the Bill which was submitted in 1997
and, accordingly, the Code of Civil Procedure
(Amendment) Act, 1999 was passed and section 27 of the
said Amendment Act of 1999 brought the amendment in
Order XVIII Rule 4.
31. This amendment was not given effect to since
protest was raised by the members of the Bar
- 23 -
throughout the country and, subsequently, the Code of
Civil Procedure (Amendment) Act, 2002 was brought into
force on 1st July, 2002 and Order XVIII, Rule 4 was
amended by virtue of the Code of Civil Procedure
(Amendment) Act, 2002, S.12(b). In Order to examine
the effect and purpose of the amendment which was made
in 2002, it may be necessary to briefly examine the
Code of Civil Procedure (Amendment) Act, 1999 so that
the intention of the Legislature can be ascertained by
the amendment which was brought into force in 2002 by
the Code of Civil Procedure (Amendment) Act of 2002.
The
Section 27,
Code of Civil Procedure (Amendment) Act, 1999, by
amended Order XVIII, Rule 4 in the
following manner.
"27. In the First Schedule, in Order XVIII,-
(i) sub-rule (4) of rule 2 shall be omitted;
(ii) for rule 4, the following rule shall be
substituted, namely:-
"4. (1) In every case, the evidence of a
witness of his examination-in- chief shall be
given by affidavit and copies thereof shall be
supplied to the opposite party by the party
who calls him for evidence.
(2) The evidence (cross- examination and
re-examination) of the witness in attendance,
whose evidence (examination-in-chief) by
affidavit has been furnished to the court
shall be taken orally by a commissioner to be
appointed by the court from amongst the panel
of commissioners prepared for this purpose on
the same day:
. Provided that, in the interest of
- 24 -
justice and for reasons to be recorded in
writing, the court may direct that the
evidence of any witness shall be recorded by
the court in the presence and under the
personal direction and superintendence of the
judge.
(3) The commissioner shall be paid such sum
for recording of evidence as may be prescribed
by the High Court.
(4) The amount payable to the commissioner
under sub-rule (3) shall be paid by the Court
or by the parties summoning the witness as may
be prescribed by the High Court.
(5) The District Judge shall prepare a panel
of commissioners to record the evidence under
this rule.
(6) The commissioner shall record evidence
either in writing or mechanically in his
presence and shall make a memorandum which
shall be signed by him and the witness and
submit the same to the court appointing such
commissioner.
(7) Where any question put to a witness is
objected by a party or his pleader and the
commissioner allows the same to be put, the
commissioner shall take down the question
together with his decision.
(iii) rule 17A shall be omitted;
(iv) after rule 18, the following rule shall
be inserted, namely:-
"19. Notwithstanding anything contained in
these rules, the court may, instead of
examining witnesses in open court, direct
their statements to be recorded on commission
under rule 4A of Order XXVI."
This amendment was not brought into force and,
subsequently, the Code of Civil Procedure (Amendment)
Act, 2002 was passed whereby by section 12(b), Order
- 25 -
XVIII Rule 4 was amended in the following manner.
"12. In the First Schedule, in Order XVIII,-
(a) ..... ..... .....
(b) for rule 4 [as substituted by clause (ii)
of section 27 of the Code of Civil Procedure
(Amendment) Act, 1999], the following rule
shall be substituted, namely:-
"4.(1) In every case, the examination-
in-chief of a witness shall be on affidavit
and copies thereof shall be supplied to the
opposite party by the party who calls him for
evidence:
Provided that where documents are filed and
the parties rely upon the documents, the proof
and admissibility of such documents which are
filed alongwith affidavit shall be subject to
the orders of the Court.
(2) The evidence (cross- examination and
re-examination) of the witness in attendance,
whose evidence (examination-in-chief) by
affidavit has been furnished to the Court
shall be taken either by the Court or by the
Commissioner appointed by it:
Provided that the Court may, while appointing
a commission under this sub-rule, consider
taking into account such relevant factors as
it thinks fit:
(3) The Court or the Commissioner, as the case
may be, shall record evidence either in
writing or mechanically in the presence of the
Judge or of the Commissioner, as the case may
be, and where such evidence is recorded by the
Commissioner, he shall return such evidence
together with his report in writing signed by
him to the Court appointing him and the
evidence taken under it shall form part of the
record of the suit.
(4) The Commissioner may record such remarks
as it thinks material respecting the demeanour
of any witness while under examination:
Provided that any objection raised during the
- 26 -
recording of evidence before the Commissioner
shall be recorded by him and decided by the
Court at the stage of arguments.
(5) The report of the Commissioner shall be
submitted to the Court appointing the
commission within sixty days from the date of
issue of the commission unless the Court for
reasons to be recorded in writing extends the
time.
(6) The High Court or the District Judge, as
the case may be, shall prepare a panel of
Commissioners to record the evidence under
this rule.
(7) The Court may by general or special order
fix the amount to be paid as remuneration for
the services of the Commissioner.
(8) The provisions of rules 16, 16-A, 17 and
18 of Order XXVI, in so far as they are
applicable, shall apply to the issue,
execution and return of such commission under
this rule."
[Emphasis supplied]
32. From the perusal of the amendment which was
sought to be introduced in 1999 and the actual
amendment which was brought into force in 2002, it can
be noticed that several changes were made in the
amendment which was proposed in 1999. Firstly, it can
be seen that after Order XVIII Rule 4(1), a proviso
has been incorporated which was not there in the
earlier amendment and the proviso also has been added
to Order XVIII Rule 4 sub-clause (4). The aforesaid
first proviso to Rule 4(1) and the second proviso to
Rule 4(4) clearly reveals the intention of the
Legislature. Whereas, in the earlier amendment of
- 27 -
1999, the intention of the Legislature was to delegate
the work of recording of evidence entirely to the
Commissioner who would be appointed for the purpose of
recording of evidence. The Code of Civil Procedure
(Amendment) Act, 2002 makes a departure and gives
discretion to the Court to either record the
cross-examination itself or depute that work to the
Court Commissioner. At the same time, proviso to
sub-rule (1) of Rule 4 clearly indicates that the
Court alone is empowered to decide the question of
proof and admissibility of documents. Whereas, so far
as
before
objection
the
ig raised
Commissioner
during
is
recording
concerned,
of evidence
proviso to
sub-rule (4) of Rule 4 clearly stipulates that the
said objection could be determined by the Court at the
time of final hearing of the case. The present
amendment brought about by the Code of Civil Procedure
(Amendment) Act, 2002, therefore clearly tries to
reconcile the earlier position and vests a discretion
in the Court of deciding the question of admissibility
of documents before the case is sent to the
Commissioner for recording the cross-examination. The
purpose and intention of the Legislature, therefore,
is very clear. It is apparent that after having
noticed that large time of the Court is taken in
recording oral evidence of the witnesses, it was
thought fit to delegate this work to the Commissioner
- 28 -
by expanding the powers of the Commissioner which are
given under Order XXVI and further amendment to Order
XIX, Rules 1 and 2 gives ample power to the
Commissioner to record the evidence. At the same
time, since the Commissioner is not competent to
decide the question of proof and admissibility of
documents and evidence, discretion is given to the
Court, either to decide this issue before sending the
matter to the Commissioner for recording of cross-
examination or decide this issue after the report is
submitted by the Commissioner. It will have to be
noted here that if the objects and reasons of the Code
of Civil Procedure (Amendment) Act are noticed, it can
be seen that the entire procedure prescribed for
hearing and disposal of the suits has been overhauled
and, therefore, the Commissioner is supposed to give a
report within a period of sixty days and the period
for extension of time which is to be given to the
Commissioner has to be by recording reasons by the
Court.
33. Apart from the amendment which is made to
Order XVIII Rule 4, it is also necessary to take into
consideration the effect of other amendments which
have been made to the provisions of the Code of Civil
Procedure by the Code of Civil Procedure (Amendment)
Act, 2002. The first amendment is in respect of Order
- 29 -
VII Rule 14 wherein it is provided that the plaintiff
shall produce documents which are in his possession in
support of his claim along with the plaint and also
state which document is not in his possession and
further state, where possible, in whose possession and
power it is. Sub-clause (3) provides that any
document which ought to have been produced by the
plaintiff along with the plaint is not so produced
then it shall not be permitted without the leave of
the Court to be received in evidence at the hearing of
the suit. Similar amendment was made in the
regarding
provisions of Order VIII Rule 1-A which is a provision
filing of Written Statement by the
defendant. In order to give effect to these
amendments consequential amendments have been made.
Consequently, Order XIII Rule 1 has been amended.
Order XVIII Rule 19 states that the Court may, instead
of examining the witnesses in open court, direct that
their statements may be recorded on commission under
Rule 4-A of Order XXVI. Order XXVI Rule 4-A states
that the Court may direct the Commissioner to record
the evidence of any person resident within the local
limits of its jurisdiction.
34. All the aforesaid provisions have been
inserted in order to ensure that there is a quick
disposal of the cases. The documents, therefore, are
- 30 -
to be produced by the plaintiff and by the defendant
along with the plaint or written statement. The
original documents are to be produced before the
settlement of issues under Order XIII. Notice to
admit documents is to be given under Order XII and
under Rule 2-A of Order XII, the document is deemed to
be admitted if not denied after service of notice to
admit documents. Under Order XIII Rule 3, the Court
has a power to reject the irrelevant or inadmissible
documents.
The Questions for Determination :
-------------------------------
35. Having heard various learned counsel appearing
for the parties, we propose to answer the question,
after taking review of the law holding the field but
slightly amending and splitting it in two parts for
the sake of convenience to answer. The question, as
reframed/amended, will read as under:-
Question-A.
At which stage, the objection to the
admissibility and/or proof of document which
may be produced or tendered should be raised;
raised
considered and decided by the Court?
Question-B.
At which stage, an objection to the
- 31 -
admissibility or relevancy of evidence
contained in the affidavit filed under Order
XVIII rule 4 of C.P.C. should be considered
and decided by the Court?
The Rulings/Authorities :
-----------------------
36. In order to understand and appreciate the
reframed questions and to come to a conclusion as to
what the proper answers to the questions should be, it
is necessary to look at some of the relevant judgments
holding field.
37. One of the oldest judgment of the Privy
Council in the field is in the case of Jadu Rai v.
Bhubotaran Nandy,
Nandy 16 Indian Appeals 148 = 17 Cal
173/186; wherein it is observed as under:
" I would further add, that I think the
practice of admitting evidence and reserving
the question of its admissibility for further
consideration, is unwise and much to be
regretted. If the evidence is once admitted,
it is impossible to say what its effect may be
on the mind of the person who hears it; and I
think it most [187] desirable that the
question of admissibility should be finally
decided when the objection to questions is
taken."
38. The above view has been followed in several
cases by various High Courts including High Courts of
Madras and Andhra Pradesh. [see (1955) 1 Madras Law
- 32 -
Journal 457 (A.Devasikamani
A.Devasikamani Goundar v. Andamuthu
Goundar)
Goundar and AIR 1957 Andhra Pradesh 60 (N.S.Sastri
N.S.Sastri v.
N.Lakshmidevamma)
N.Lakshmidevamma .
39. The Privy Council in another judgment in the
case of Gopal Das v. Sri Thakurji,
Thakurji AIR 1943 PC 83
held that the objection to the mode of proof must be
taken before document is marked and not in appeal for
first time. Where the objection to be taken is not
that the document is in itself inadmissible but that
the mode of proof put forward is irregular or
insufficient,
should be
ig it is essential that
taken at the trial before the document
the objection
is
marked as an exhibit and admitted to the record. A
party cannot lie by until the case comes before a
Court of appeal and then complain for the first time
of the mode of proof.
40. In Zaver Chand v. Pukhraj Surana,
Surana AIR 1961 SC
1655, a document was tendered which was not properly
stamped. Objection was raised as to admissibility
thereof. The Court held that the question has to be
decided there and then when the document is tendered
in evidence. It was further held that once the Court
rightly or wrongly decides to admit the document in
evidence, the matter is closed so far as the parties
are concerned. It was held that the Court has to
- 33 -
determine the matter judicially as soon as the
document is tendered in evidence and before it is
marked as an Exhibit in the case.
41. In the case of R.V.E. Venkatachalam Gounder
(supra), the Apex Court ruled as under:
"The objections as to admissibility of
documents in evidence may be classified into
two classes: (i) an objection that the
document which is sought to be proved is
itself inadmissible in evidence; and (ii)
where the objection does not dispute the
admissibility of the document in evidence but
is directed towards the mode of proof alleging
the same to be irregular or insufficient. In
the first case, merely because a document has
been marked as "an exhibit", an objection as
to its admissibility is not excluded and is
available to to be raised even at a later
stage or even in appeal or revision. In the
latter case, the objection should be taken
when the evidence is tendered and once the
document has been admitted in evidence and
marked as an exhibit, the objection that it
should not have been admitted in evidence or
that the mode adopted for proving the document
is irregular cannot be allowed to be raised at
any stage subsequent to the marking of the
document as an exhibit. The latter
proposition is a rule of fair play. The
crucial test is whether an objection, if taken
at the appropriate point of time, would have
enable the party tendering the evidence to
cure the defect and resort to such mode of
proof as would be regular."
42. In the case of Ram Ratan v. Bajarang Lal,
Lal AIR
1978 SC 1393, the Supreme Court observed as under:
- 34 -
"The Court, and of necessity it would be trial
court before which the objection is taken
about admissibility of document on the ground
that it is not duly stamped, has to judicially
determine the matter as soon as the document
is tendered in evidence and before it is
marked as an exhibit in the case and where a
document has been inadvertently admitted
without the Court applying its mind as to the
question of admissibility, the instrument
could be said to have been admitted in
evidence with a view to attracting S.36."
43. In the case of Smt.Dayamathi Bai v.
K.M.Shaffi, AIR 2004 SC 4082, the Apex Court following
its earlier view in R.V.E.Venkatachalam Gounder
(supra),
AIR 1966
Roman Catholic Mission v.
SC 1457 and Gopal Das v.
State of
Sri
Madras,
Madras
Thakurji
(supra) reiterated that the objection to be taken at
trial before document is marked as an 'exhibit' and
admitted to record. In the said judgment, the Supreme
Court also referred to Sarkar on Evidence 15th
Edition, page 1084; wherein it is stated that if
copies of the documents are admitted without objection
in the trial Court, no objection to their
admissibility can be taken afterwards in the court of
appeal.
44. In the case of Sait Tarajee Khimchand v.
Yelamarti Satyam, AIR 1971 SC 1865, the Apex Court
ruled that mere marking of a document as an exhibit
does not dispense with its proof.
- 35 -
45. In the case of Ramanuj Rai v. Dakshineshwar
Rai,
Rai AIR 1926 Cal. 752, the Court ruled that where
there is any objection to the admissibility of an
evidence, a final decision on the objection must be
recorded before the Court proceeds to judgment.
46. The weight of the aforesaid authorities
suggests that the objection to the admissibility of
evidence should be raised by the objector and decided
by
view
the
Court at the earliest opportunity.
has been reiterated by the learned single Judges
The same
of this Court in Bharat R. Desai v. Naina M. Bhal
(supra) and Durgashankar v. Babubhai (supra).
47. We now propose to proceed to refer to the
judgments of the Apex Court taking little different
view on the very same issue while dealing with the
case arising out of criminal trial.
48. In the case of Bipin Shantilal Panchal (supra)
Justice Thomas speaking for the Bench held that-
" When so recast, the practice which can
be a better substitute is this: Whenever an
objection is raised during evidence-taking
stage regarding the admissibility of any
material or item of oral evidence the trial
- 36 -
court can make a note of such objection and
mark the objected document tentatively as an
exhibit in the case (or record the objected
part of the oral evidence) subject to such
objections to be decided at the last stage in
the final judgment. If the court finds at the
final stage that the objection so raised is
sustainable the Judge or Magistrate can keep
such evidence excluded from consideration.
There is no illegality in adopting such a
course.
However, if the objection relates to
deficiency of stamp duty of a document the
Court has to decide the objection before
proceeding further. For all other objections
the procedure suggested above can be
followed."
49.
judgment
The
of
aforesaid view finds support in
the Apex Court in the case of
another
State v.
Navjot Sandhu (supra) arising out of criminal trial.
50. While interpreting Rule 4 of Order XVIII, the
other amendments also have to be kept in mind and over
and above that, it has to be borne in mind that the
intention of the Legislature was to curtail the time
consumed by the Court in the process of recording of
evidence. In Ameer Trading Corpn. Ltd v. Shapoorji
Data Processing Ltd.,
Ltd. (2004) 1 SCC 702, the Apex Court
while interpreting the said provision has taken into
consideration Heydon's rule. The Apex Court has made
the following observations.
"21. In a situation of this nature, the
- 37 -
doctrine of suppression of mischief rule as
adumbrated in Heydon's case [(1584) 3 Co Rep
7a : 76 ER 637] shall apply. Such an
amendment was made by Parliament consciously
and, thus, full effect thereto must be given."
"22. In Halsbury's Laws of England, Vol.
44(1), 4th Reissue, para 1474, pp. 906-07, it
is stated:
" Parliament intends that an enactment
shall remedy a particular mischief and it is
therefore presumed that Parliament intends
that the court, when considering in relation
to the facts of the instant case, which of the
opposing constructions of the enactment
corresponds to its legal meaning, should find
a construction which applies the remedy
provided by it in such a way as to suppress
that mischief. The doctrine originates in
Heydon's case [(1584) 3 Co Rep 7a : 76 ER
637] where the Barons of the Exchequer
resolved that for the sure and true
interpretation of all statutes in general (be
they penal or beneficial, restrictive or
enlarging of the common law), for things are
to be discerned and considered:
(1) what was the common law before the making
of the Act;
(2) what was the mischief and defect for which
the common law did not provide;
(3) what remedy Parliament has resolved and
appointed to cure the disease of the
commonwealth; and
(4) the true reason of the remedy;
and then the office of all the judges is
always to make such construction as shall:
(a) suppress the mischief and advance the
remedy; and
(b) suppress subtle inventions and evasions
for the continuance of the mischief pro
privato commodo (for private benefit); and
(c) add force and life to the cure and remedy
according to the true intent of the makers of
the Act pro publico (for the public good)."
- 38 -
[Emphasis supplied]
"23. Heydon's rule has been applied by this
Court in a large number of cases in order to
suppress the mischief which was intended to be
remedied as against the literal rule which
could have otherwise covered the field. (See
for example, Parayankandiyal eravath
kanapravan kalliani Amma v. K. Devi [(1996)
4 SCC 76 : AIR 1996 SC 1963]; Bengal
Immunity Co. Ltd. v. State of Bihar [AIR
1955 SC 661] and Goodyear India Ltd. v.
State of Haryana [(1990) 2 SCC 71]"
51. At this stage, it would be appropriate to take
into consideration the observations made by the Apex
Court
(supra).
in
the case of Salem Advocate Bar
In the first Salem
Association
Advocate Bar
Association's case reported in AIR 2003 SC 189, the
validity of Order XVIII, Rule 4 was challenged.
However, the Apex Court upheld the validity of the
said rule. In the second Salem Advocate Bar
Association's case reported in AIR 2005 SC 3353, the
Apex Court was called upon to formulate the modalities
for implementation of section 89 of the Code of Civil
Procedure. The Apex Court, however, took into
consideration the report submitted by the Committee
which was constituted for the purpose of giving proper
effect to the amendments. The report was tendered in
three parts. Report-I contained the consideration of
various grievances relating to amendments to the Code
and recommendations of the Committee. In para- 3 of
- 39 -
the said judgment, the Apex Court has taken into
consideration the report and in para- 5 it has taken
into consideration the effect of amendment of Order
XVIII Rule 4. It would be relevant to consider the
observations made by the Apex Court in para- 5 of its
judgment which is reproduced hereinbelow:-
"5. The amendment provides that in every
case, the examination-in-chief of a witness
shall be on affidavit. The Court has already
been vested with power to permit affidavits to
be filed as evidence as provided in Order XIX
Rules 1 and 2 of the Code. It has to be kept
in view that the right of cross- examination
and re-examination in open court has not been
disturbed by Order XVIII rule 4 inserted by
amendment. It is true that after
amendment cross-examination can be before a
the
Commissioner but we feel that no exception can
be taken in regard to the power of the
legislature to amend the Code and provide for
the examination-in-chief to be on affidavit or
cross-examination before a Commissioner. The
scope of Order XVIII rule 4 has been examined
and its validity upheld in Salem Advocates Bar
Association's case. There is also no question
of inadmissible documents being read into
evidence merely on account of such documents
being given exhibit numbers in the affidavit
filed by way of examination-in-chief.
Further, in Salem Advocates Bar Association's
case, it has been held that the trial court in
appropriate cases can permit the
examination-in-chief to be recorded in the
Court. Proviso to sub- rule (2) of Rule 4 of
Order XVIII clearly suggests that the court
has to apply its mind to the facts of the
case, nature of allegations, nature of
evidence and importance of the particular
witness for determining whether the witness
shall be examined in court or by the
Commissioner appointed by it. The power under
Order XVIII Rule 4(2) is required to be
exercised with great circumspection having
regard to the facts and circumstances of the
case. It is not necessary to lay down hard
- 40 -
and fast rules controlling the discretion of
the court to appoint Commissioner to record
cross-examination and re- examination of
witnesses. The purpose would be served by
noticing some illustrative cases which would
serve as broad and general guidelines for the
exercise of discretion. For instance, a case
may involve complex question of title, complex
question in partition or suits relating to
partnership business or suits involving
serious allegations of fraud, forgery, serious
disputes as to the execution of the will etc.
In such cases, as far as possible, the court
may prefer to itself record the cross-
examination of the material witnesses. An
other contention raised is that when evidence
is recorded by the Commissioner, the Court
would be deprived of the benefit of watching
the demeanour of witness. That may be so but,
in our view, the will of the legislature,
which has by amending the Code provided for
recording evidence by the Commissioner for
saving Court's time taken for the
purpose, cannot be defeated merely on the
ground that the Court would be deprived of
said
watching the demeanour of the witnesses.
Further, as noticed above, in some cases,
which are complex in nature, the prayer for
recording evidence by the Commissioner may be
declined by the Court. It may also be noted
that Order XVIII rule 4, specifically provides
that the Commissioner may record such remarks
as it thinks material in respect of the
demeanour of any witness while under
examination. The court would have the benefit
of the observations if made by the
Commissioner."
(Emphasis supplied)
52. The Code of Civil Procedure is a procedural
law. It is "procedure", something designed to
facilitate justice and further its ends: not a penal
enactment for punishment and penalties; not a thing
designed to trip people up. Too technical a
- 41 -
construction of sections that leaves no room for
reasonable elasticity of interpretation should
therefore be guarded against (provided always that
justice is to "both" sides) lest the very means
designed for the furtherance of justice be used to
frustrate it.
53. All the rules of procedure are the handmaid of
justice. The language employed by the draftsman of
processual law may be liberal or stringent, but the
fact remains that the object of prescribing procedure
system, no
is to advance the cause of justice.
party should ordinarily
In an adversarial
be denied the
opportunity of participating in the process of justice
dispensation. Unless compelled by express and
specific language of the Statute, the provisions of
the C.P.C. or any other procedural enactment ought
not to be construed in manner which would leave the
court helpless to meet extraordinary situations in the
ends of justice.
54. The processual law so dominates in certain
systems as to overpower substantive rights and
substantial justice. The humanist rule that procedure
should be the handmaid, not the mistress, of legal
justice compels consideration of vesting a residuary
power in judges to act ex debito justitiate where the
- 42 -
tragic sequel otherwise would be wholly inequitable-
Justice is the goal of jurisprudence processual, as
much as substantive. (See Sushil Kumar Sen v. State
of Bihar,
Bihar 1975 (1) SCC 774).
55. No person has a vested right in any course of
procedure. He has only the right of prosecution or
defence in the manner for the time being by or for the
Court in which the case is pending, and if, by an Act
of Parliament the mode of procedure is altered, he has
no other right than to proceed according to the
altered mode.
524 (HL)].
ig [See Blyth v. Blyth,
Blyth 1966 (1) All E.R.
A procedural law should not ordinarily be
construed as mandatory, the procedural law is always
subservient to and is in aid to justice. Any
interpretation which eludes or frustrates the
recipient of justice is not to be followed. (see
Shreenath and Anr. v. Rajesh and Ors.,
Ors. AIR 1998 SC
1827).
56. Processual law is not to be a tyrant but a
servant, not an obstruction but an aid to justice.
Procedural prescriptions are the handmaid and not the
mistress, a lubricant, not a resistant in the
administration of justice as held by the Apex Court in
the recent judgment in the case of M/s.R.N.Jadi and
Brothers v. Subhashchandra,
Subhashchandra AIR 2007 SC 2571
- 43 -
57. The Court must always be anxious to do justice
and prevent victories by way of technical knock-outs.
But how far that concept can be stretched in the
context of the amendments brought to the C.P.C. and
in the light of the mischief that was sought to be
averted is a question that has to be seriously
considered. Sometimes even the procedure would be
considered as mandatory, no doubt, retaining the power
in Court in a proper case to exercise the jurisdiction
to take out the rigour of that provision or to
mitigate genuine hardship.
Consideration :
-------------
58. With the above preface, we propose to answer
the questions referred hereinabove.
Question-A.
-----------
59. The resolution of this question cannot be
without considering the provisions of Order XIII Rule
3 which requires the Court to reject any document it
considers irrelevant or otherwise inadmissible
recording grounds of such rejection. Rule 4 provides
for every document admitted in evidence in the suit
being endorsed by or on behalf of the Court, which
- 44 -
endorsement signed or initialled by the Judge amounts
to admission of the document in evidence. Rule 6
contemplates endorsements on the documents rejected as
inadmissible in evidence. An objection to the
admissibility of the document should be raised before
endorsement is made and the Court is obliged to form
its opinion on the question of admissibility and
express the same on which opinion would depend the
document being endorsed as admitted or not admitted in
evidence.
60.
with the
Chapter XXVII of the Civil Manual also
matters pertaining to the "RECORDS" of
deals
the
Court and under the heading "DOCUMENTS" it deals with
the procedure pertaining to acceptance of documents on
record and the manner in which they are to be
exhibited or rejected in the course of trial.
61. Considering the provisions of law referred to
above, it is not possible to reject the document
admitted and exhibited in terms of Rule 4 in exercise
of powers under Rule 6 of Order XIII of C.P.C. A
document can be exhibited in evidence only when such a
document is admissible in evidence and not otherwise.
If admissible document is exhibited on establishing
its proof then such document cannot be de-exhibited or
rejected. This is abundantly clear from the
- 45 -
provisions of law contained in Rules 4 and 6 of Order
XIII read with Para-524 of the Civil Manual. In fact,
provisions of law contained in Rule 4 are to be read
with Rule 6 of Order XIII of C.P.C. and cannot be
considered to be referable to two different stages.
The question of exhibiting the document under Rule 4
can arise only if the document is found to be
admissible in evidence and in case it is found to be
not admissible, the same is to be rejected in terms of
Rule 6 of Order XIII read with para-524 of Civil
Manual. There is no provision enabling the Court to
postpone
proof of
the objection regarding admissibility
document, as such one can safely rule that
or
the question as to admissibility of document should be
decided at it arises and should not be reserved until
the judgment of the case is given.
62. The various judgments of the Privy Council,
the Supreme Court and various High Courts referred to
hereinabove lean in favour of determining the question
as to admissibility of document at the time of its
reception or at the earliest possible opportunity.
The reason is that if the Court allows the objection,
the party tendering the evidence may take such steps
as may be advised to get the lacunae remedied. Once
inadmissible evidence is admitted on record, it is
impossible to say what its effect may be on the mind
- 46 -
of the person, who hears it. It creates atmosphere of
prejudice affecting fair trial. It may,
unconsciously, be regarded by judicial minds as
corroboration of some piece of evidence legally
admissible and thereby obtain for latter quite undue
weight and significance.
Stage to Raise Objection :
------------------------
63. In order to prevent inadmissible evidence
going on record,the opponent or adverse party can
always raise an objection to the admissibility of the
document.
igThe question is: at which stage such
objection is to be raised? To answer this question,
let us find out various stages provided in the Code to
raise an objection to the admissibility of the
documents.
64. Order VII deals with construction of the
plaint. Rule 14 thereof provides for production of
documents on which plaintiff sues along with list of
other documents relied upon in support of the claim.
This is a first opportunity in the lis to the
plaintiff to produce documents on record.
65. On being served with the writ of summons, the
- 47 -
defendant appears and files written statement under
Order VIII Rule 1 in which defendant can admit or deny
the documents filed by the plaintiff. This is a first
opportunity to the defendant to deny or admit the
documents. Rule 8-A thereof cast duty on defendant to
produce documents upon which relief is claimed by him.
Rules relating to a written statement by a defendant
apply to a written statement filed in answer to a
counter claim in view of Rule 6-G of Order VIII.
66. Under Order XIII Rule 1, one more opportunity
is available
evidence
ig to the parties to
at or before settlement of issues.
produce documentary
Order 12
Rule 2 provides for notice to admit documents calling
upon the opponent to admit documents. This is an
additional stage to admit or deny or object to the
admissibility of the document. Rule 2A thereof
provides for deemed admission, if documents are not
denied within stipulated time-frame after service of
notice to admit documents.
67. The procedure for rejecting or exhibiting the
document which is produced in the course of evidence
is prescribed under Order XIII Rules 3 and 4
respectively.
68. Order XVIII, Rule 4(1) of the C.P.C. clearly
- 48 -
provides that the examination-in-chief of a witness
shall be on affidavit and copies thereof shall be
supplied to the opposite party by the party who calls
the witness for evidence; provided that where
documents are filed and the parties rely upon the
documents, the proof and admissibility of such
documents which are filed along with the affidavit
shall be subject to the orders of the Court. At this
stage, one more opportunity is provided to the party
to produce documents.
69. The
ig procedure to lead evidence in the form of
affidavit under Order XVIII, Rule 4 of the C.P.C. and
to translate it into admissible evidence has been
elaborately stated in the decision of the learned
single Judge of this Court in F.D.C. Ltd. v.
Federation of Medical Representatives Association
India,
India 2003 (3) Mh.L.J. 327 = AIR 2003 Bombay 371.
70. The above judgment in the case of F.D.C.Ltd.
(supra) is affirmed by the Supreme Court in Salem
Advocate Bar Association (supra) and Ameer Trading
Corpn. Ltd. (supra). It is, thus, ruled that unless
deponent thereof enters the witness-box and confirms
the contents of the affidavit the same cannot be taken
on record and exhibited. Once the affidavit of
evidence is taken on record and exhibited making part
- 49 -
of the record of the case, the opponent, at this
stage, must raise an objection to the admissibility
and proof of the documents which the Court has to
decide by a judicial order.
Classification of Documentary Evidence vis-a-vis
------------------------------------------------
Adjudication thereon :
--------------------
71. The admissibility of the document in evidence
may be broadly classified into three classes- (i) that
objection to the document which is sought to be proved
is itself insufficiently stamped and the objection
relates
to deficiency of stamp duty of the document;
(ii) where the objection does not dispute
admissibility of document in evidence but is directed
towards the mode of proof alleging the same to be
irregular or insufficient; and (iii) the objection
that the document which is sought to be proved is ab
initio inadmissible in evidence.
72. In the first case, the Court, before which the
objection is taken about admissibility of document on
the ground that it is not duly stamped, has to
judicially determine the matter as soon as the
document is tendered in evidence and before it is
marked as an exhibit in the case as held by the
Constitution Bench in Zaver Chand v. Pukhraj Surana
- 50 -
(supra) Once a document has been marked as an exhibit
in the case and has been used by the parties in
examination and cross-examination of their witnesses,
section 36 comes into operation. Once a document has
been admitted in evidence, as aforesaid, it is not
open either to the trial Court itself or to a Court of
Appeal or Revision to go behind that order. such an
order is not one of those judicial orders which are
liable to be reviewed or revised by the same Court or
a Court of superior jurisdiction. Similar view is
expressed by the Supreme Court in the case of Bipin
Shantilal
that
igPanchal (supra); wherein it is made
if the objection relates to deficiency of
clear
stamp
duty of a document, the Court has to decide the
objection before proceeding further.
73. In the case of Ram Ratan v. Bajarang Lal
(supra) the Apex Court reiterating the above view has
observed that the Court, as of necessity it would be
trial Court, before which the objection is taken about
admissibility of document on the ground that it is not
duly stamped, has to judicially determine the matter
as soon as the document is tendered in evidence and
before it is marked as an exhibit in the case. So the
objection relating to deficiency of duty cannot be
raised or decided at the later stage of the suit. It
has to be decided there and then unless taken on
- 51 -
record subject to objection so as to avoid the rigour
of section 36 of the Stamp Act.
74. In the second category of the case, the
objection should be taken when the evidence is
tendered. Once the document has been admitted in
evidence and marked as an exhibit, the objection that
it should not be admitted in evidence or that the mode
adopted for proving the document is irregular cannot
be allowed to be raised at any stage subsequent to the
marking of the document as an exhibit. This
whether an
proposition is rule of fair play.
objection, if taken at
The crucial test is
the appropriate
point of time, would enable the party tendering the
evidence to cure the defect and resort to such mode of
proof as would be regular. The omission to object
become fatal because by his failure the party entitled
to object allows the party tendering the evidence to
act on an assumption that the opposite party is not
serious about the mode of proof. On the other hand, a
prompt objection does not prejudice the party
tendering the evidence, for two reasons; firstly, it
enables the Court to apply its mind and pronounce its
decision on the question of admissibility there and
then; and secondly, in the event of finding of the
Court on the mode of proof sought to be adopted going
against the party tendering the evidence, the
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opportunity of seeking indulgence of the court for
permitting a regular mode or method of proof and
thereby removing the objection raised by the opposite
party, is available to the party leading the evidence.
Failure to raise a prompt and timely objection amounts
to waiver of the necessity for insisting on formal
proof of a document, the document itself which is
sought to be proved being admissible in evidence.
75. If the objection to the proof of document is
not decided and the document is taken on record giving
tentative
cross-examiner
exhibit,
is
then
seriously
the
prejudiced.
right of
Once
the
the
document is used in cross-examination, then the
document gets proved and can be read in evidence as
held by the Supreme Court in the case of Ram Janki
Devi v. M/s.Juggilal Kamlapat,
Kamlapat 1971 (1) SCC 477. If
the cross-examiner decides not to cross-examine based
on unexhibited document and, ultimately, at the fag
end of the trial, the document is held to be
admissible and proved, then, the cross-examiner as a
rule of fair play would be entitled to further
opportunity to cross-examine based on that document
resulting in delayed trial defeating the very object
and purpose of the amendment to the C.P.C.
76. In the third case merely because a document
- 53 -
has been marked as "an exhibit", an objection as to
its admissibility is not excluded. It is available to
be raised even at later stage or even in appeal or
revision. There is no question of inadmissible
documents being read into evidence merely on account
of such documents being given exhibit numbers in
affidavit filed by in examination-in-chief or while
recording oral evidence. For example in case of
unregistered sale-deed or gift-deed or lease-deed
requiring registration, no evidence of the terms
thereof can be given. On the ground of public policy,
evidence
the
derived from unpublished official records of
State cannot be given except with the permission
of the head of the department concerned as laid down
under section 123 of the Evidence Act. Such a
document, therefore, can be tentatively exhibited and
the decision thereon can be postponed till the suit
reaches the stage of judgment. However such objection
has also to be decided before the judgment is
delivered. The objection to the admissibility of such
evidence can always be taken at any stage of the suit.
77. Thus, we hold and rule that ordinarily an
objection to the admissibility of the document in
first and second categories of cases (excluding third
type of case) has to be taken before the document is
exhibited which, necessarily, postulates decision on
- 54 -
the objection then and there. In other words, whether
document is admissible or inadmissible is matter which
should always be ruled upon at the time when the
document is being proved or put in or the question
asked to the witness. Such practice and procedure is
fair to both parties.
78. It may be observed that sometimes in the case
of second category, evidence can be received subject
to objection in anticipation of other evidence, which,
if produced, will remove the objection. In such
cases,
postponed
a
final decision on the objection
to a later stage but, at any rate, it
can
must
be
be decided before the court proceeds to judgment.
Omission in this respect is likely to prejudice the
party producing the evidence by letting the matter
remain in a dubious state and then depriving the party
tendering the evidence of an opportunity of making up
the defects which in many cases he would be ready to
do if he is told that the objection is allowed as
observed hereinbefore.
79. We may make it clear that a ruling as regards
admissibility of evidence should be as brief as
possible since no appeal lies against such order, it
not being a 'judgment'. Once the ruling has been
given, there should be no interruption in the trial
- 55 -
and the trial Court should proceed with the trial to
judgment without interruption. In the judgment the
order should incorporate fuller reasons, if need be,
for holding particular evidence to be inadmissible.
80. Our above view is in consonance with the view
taken by the Privy Council in Padman v. Hanwanta,
Hanwanta AIR
1915 PC 111. It did not permit the appellant to take
objection to the admissibility of a registered copy of
a Will in appeal for the first time. It was held that
this objection should have been taken in the trial
court.
It was observed (AIR p.112)
" The defendants have not appealed to
His Majesty-in-Council, and the case has been
argued on their behalf in great detail. It
was urged in the course of the argument that a
registered copy of the Will of 1898 was
admitted in evidence without sufficient
foundation being laid for its admission. No
objection, however, appears to have been taken
in the first court against the copy obtained
from the Registrar's office being put in
evidence. Had such objection been made at the
time, the District Judge, who tried the case
in the first instance, would probably have
seen that the deficiency was supplied. Their
Lordships think that there is no substance in
the present contention."
Similar is the view expressed by three Judge Bench of
the Supreme Court in the case of in P.C.Purushothama
Reddiar v. S.Perumal,
S.Perumal (1972) 1 SCC 9. In this case
the police reports were admitted in evidence without
- 56 -
any objection and the objection was sought to be taken
in appeal regarding the admissibility of the reports.
Rejecting the contention it was observed: (SCC p.15,
para 19)
"19. Before leaving this case it is necessary
to refer to one of the contentions taken by
Mr.Ramamurthi, learned counsel for the
respondent. He contended that the police
reports referred to earlier are inadmissible
in evidence as the Head Constables who covered
those meetings have not been examined in the
case. Those reports were marked without any
objection. Hence it is not open to the
respondent now to object to their
admissibility- see Bhagat Ram v. Khetu Ram,
AIR 1929 PC 110."
The aforesaid view has been followed by two Judge
Bench of the Supreme Court in the case of R.V.E.
Venkatchalla Gounder (supra) holding the view that the
admissibility of document should be determined as it
arises and before the document is marked and
exhibited.
81. The aforesaid view is again reiterated by
another two Judge Bench of the Supreme Court in the
case of Smt.Dayamathi Bai v. K.M.Shaffi (supra);
wherein the reliance is placed on the Privy Council
judgment in the case of Gopal Das v. Sri Thakurji
(supra); wherein the Privy Council ruled that the
- 57 -
objection as to the mode of proof must be taken and
determined as it arises before the document is marked
and exhibited.
82. While taking above view, we are also conscious
of the another three Judge Bench judgment of the
Supreme Court in the case of Bipin Shantilal Panchal
(supra) followed by another judgment in the case of
State v. Navjot Sandhu (supra); wherein the view
taken is that whenever any objection is taken
regarding admissibility of the material or any item of
oral
last
evidence such objection should be decided at the
stage of the final judgment. The said judgments
were followed by the learned single Judge of this
Court in the case of Boman P. Irani (supra).
83. The procedure suggested by three Judge Bench
of the Apex Court in the case of Bipin Shantilal
Panchal (supra) for being followed is little different
than the view expressed by the another three Judge
Bench judgment of the same Court in the case of
P.C.Purushothama Reddiar v. S.Perumal (supra)
followed by two Division Benches of the Supreme Court
in the cases of R.V.E. Venkatachalam Gounder and
Smt.Dayamathi Bai v. K.M.Shaffi (cited supra).
84. Now the question arises as to which of the two
- 58 -
views this Court should follow. The view expressed in
Bipin Shantilal Panchal (supra) by the Apex Court is
based on the peculiar factual matrix arising out of
criminal trial which was prolonged for almost 10 (Ten)
years in breach of fundamental right of the accused
under Article 21 of the Constitution of India
guarantying speedy and expeditious trial. The same
view was followed in the case of State v. Navjot
Sandhu (supra) involving more or less similar facts
surfaced in a criminal trial. The question referred
for our consideration arises out of civil proceedings
governed
by the provisions of the C.P.C.
settled that if certain things are required to be done
It is well
by the Statute in a specific manner, then it cannot be
done in any other manner as ruled by the Apex Court in
the case of Nazir Ahmed v. King Emperor,
Emperor AIR 1936 PC
243; State of Uttar Pradesh v. Singhara Singh,
Singh AIR
1964 SC 358 followed by this Court in Vanmala S. Aney
v. National Education Society, Khamgaon,
Khamgaon 1982 Mh.L.J.
403. Thus, mandate of Order XIII Rules 3 and 4 read
with Order XVIII Rule 4(1) and consensus of judicial
opinion compel us to fall in line with the view
expressed in R.V.E. Venkatachalam Gounder and
Smt.Dayamathi Bai v. K.M.Shaffi (both cited supra).
85. Apart from the above, the principles of stare
decisis squarely applies to the case on hand. In
- 59 -
Mishri Lal v. Dhirendra Nath,
Nath (1999) 4 SCC 11 (paras
14-22), the Supreme Court referred to its earlier
decision in Maktul v. Manbhari,
Manbhari AIR 1958 SC 918 on
the scope of doctrine of stare decisis with reference
to Hulsbury's Laws of England and Corpus Juris
Secundum and held (at SCC p.18 para-14) that-
"a decision which has been followed for a long
period of time, and has been acted upon by
persons in the formation of contracts or in
the disposition of their property, or in the
general conduct of affairs, or in legal
procedure or in other ways, will generally be
followed by courts of higher authority other
than the court establishing the rule, even
though the court before whom the matter arises
afterwards might be of a different view."
86. Assuming that it is possible to take different
view or work out different procedure as suggested in
Bipin Shantilal Panchal;
Panchal as long as long as principle
laid down in P.C.Purushothama Reddiar v. S.Perumal;
S.Perumal
R.V.E. Venkatachalam Gounder;
Gounder and Smt.Dayamathi Bai
v. K.M.Shaffi (all cited supra) has been consistently
followed in our country in civil matters, as observed
in Mishri Lal (supra), it will be worthwhile to let
the matter rest since a large number of parties have
modulated and continue to modulate their legal
relationships based on the settled law.
87. However, by way of exception, the objection
- 60 -
relating to the admissibility of the document
requiring resolution of complex issues, having effect
of arresting progress of the matter, or if the
admissibility of the evidence is dependent on receipt
of further evidence, then, in such cases the trial
Court can, in the interest of justice, defer the issue
of deciding admissibility of the document. In Ram
Ratan v. Bajarang Lal (supra), the Supreme Court has
also observed that in a given circumstance a document
can be exhibited with the endorsement made by the
learned trial Judge "objected, allowed subject to
objection",
not been
ig clearly indicating that the objection has
judicially determined and the document was
tentatively marked. This procedure is to be followed
only in exceptional circumstances. Ordinarily, the
objection to the admissibility of the document should
be decided as and when raised without reserving the
question as to admissibility of the document until
final judgment in the case. We may make it clear that
omission to object to a document, which in itself is
inadmissible in evidence, would not constitute such
document in evidence. It is also duty of the Court to
exclude all irrelevant evidence even if no objection
is taken to its admissibility by the parties. The
question of relevancy of the document being a question
of law can be raised and decided at any stage of the
proceeding.
- 61 -
88. The cases; wherein Court Commissioner is
appointed to record cross-examination, the Court may
decide the question of admissibility of document or
proof of such document before the matter is sent for
recording of evidence to the Commissioner in the form
of cross-examination or re-examination or, in a given
case, the Court may decide that question at a
subsequent stage. The Court, obviously, has a
discretion of recording cross-examination and
re-examination itself. During the cross-examination,
if
the document is produced and the question
to its admissibility is raised, then, the Commissioner
leading
cannot rule the point as to admissibility of the
evidence. In such case, the Court Commissioner is
expected to record objection and can give tentative
exhibit to the document subject to the decision of the
Court. The Court would then be obliged to decide the
question before the judgment is delivered so that the
party producing evidence could not be deprived of its
right to tender evidence or an opportunity of
producing fresh evidence or opportunity of making up
defects which in many cases could be remedied, if he
is told that the objection is allowed.
89. The different cases will have different facts.
Each case must be dealt with on its own facts. No
- 62 -
strait jacket formula can be evolved. The C.P.C. has
been amended from time to time in order to meet the
changing situations. The courts trying the suit or
proceedings involving peculiar facts do have a
discretion to work out its own procedure and determine
the stage of deciding the admissibility of the
documents for the reasons to be recorded, if it
advances the cause of justice without causing
prejudice to the rights of either of the parties. The
discretion should not be used fancifully. It is quite
possible that sometimes when party fails to
substantiate
dilatory
igthe
tactics
allegations,
to
he
harass the opponent
may resort
by filing
to
irrelevant and frivolous documents to prolong the
continuance of the case. This should be checked by
exercising power available with the Court. As already
said, procedure is always evolved to serve the ends of
justice. miscarriage of justice.
Question-B.
-----------
90. So far as Question-B relating to the stage at
which objection to the admissibility or relevancy of
evidence contained in the affidavit of evidence filed
under Order XVIII Rule 4 of C.P.C. is no more res
integra in view of the three Judge Bench judgment of
the Apex Court in the case of Ameer Trading Corpn.
- 63 -
Ltd.
Ltd (supra); wherein the Court ruled as under:
"..... If any objection is taken to any
statement made in the affidavit, as for
example, that a statement has been made beyond
the pleadings, such an objection can always be
taken before the court in writing and in any
event, the attention of the witness can always
be drawn while cross-examining him. The
defendant would not be prejudiced in any
manner whatsoever if the examination-in-chief
is taken on an affidavit and in the event he
desires to cross-examine the said witness he
would be permitted to do so in the open
Court........."
(Emphasis supplied)
91.
The reading of the aforesaid extracted portion
would go to show that the Apex Court has clearly ruled
that if any objection is to be taken to the statement
made in the affidavit, then such objection should
always be taken before the court in writing and the
attention of the witness should always be drawn while
cross-examining him. In other words, it is not
necessary to decide the objections relating to
admissibility or relevancy of evidence contained in
the affidavit filed under Order XVIII Rule 4 of C.P.C.
as they arise. The determination or decision thereon
can be deferred to a later stage of the suit.
However, final decision must be recorded before the
Court proceeds to judgment. The irrelevant evidence
brought on record can always be excluded as the
- 64 -
question of admissibility of evidence is a question of
law. Even the objection that a piece of evidence
which was considered by the judgment was irrelevant
can be taken up for first time in appeal (see Miller
v. Madhodas,
Madhodas 23 Ind App 106 (PC). In Narhari v.
Ambabai,
Ambabai AIR 1920 Bom 244, it was held that erroneous
omission to object to irrelevant evidence does not
make the evidence relevant. Section 33 of the
Evidence Act deals with relevancy and not with the
mode of evidence. If the evidence is irrelevant,
consent of parties cannot make it relevant. Thus,
more
first
convenient mode is to admit the objection in the
instance, reserving question of law as to its
admissibility until final judgment in the case.
Conclusions :
-----------
92. In view of the above analysis of the statutory
provisions and our discussion, we, accordingly,
articulate our conclusions as follows:
Answer to Question-A :
--------------------
As already noticed, (i) objection to the
document sought to be produced relating to
the deficiency of stamp duty must be taken
when the document is tendered in evidence
and such objection must be judicially
- 65 -
determined before it is marked as exhibit;
(ii) Objection relating to the proof of
document of which admissibility is not in
dispute must be taken and judicially
determined when it is marked as exhibit;
(iii) Objection to the document which in
itself is inadmissible in evidence can be
admitted at any stage of the suit
reserving decision on question until final
judgment in the case.
The Court trying the suit or proceedings as far as
possible is expected to decide the admissibility or
proof of document as indicated hereinabove. As we
have already added a word caution that while
exercising discretion judiciously for the advancement
of the cause of justice for the reasons to be
recorded, the Court can always work out its own
modality depending upon the peculiar facts of each
case without causing prejudice to the rights of the
parties to meet the ends of justice and not to give
the handle to either of the parties to protract
litigation. The aim should always be to prevent
- 66 -
miscarriage of justice and expedite trial, which is
the dire need of the time.
Answer to Question-B :
--------------------
The objection to the admissibility or
relevancy of evidence contained in the
affidavit of evidence filed under Order
XVIII Rule 4 of C.P.C. can be admitted at
any stage reserving its resolution until
final judgment in the case as held in
Ameer Trading Corpn. Ltd. v. Shapoorji
Data Processing Ltd. (supra).
93. Having answered the questions as above, we
direct the matters to be placed for disposal in
accordance with law before appropriate Bench.
(CHIEF JUSTICE)
(V.C.DAGA, J.)
(V.M.KANADE, J.)
