Ritu Poddar Nee Kanoria vs Amit
2021 Latest Caselaw 1823 Cal

Sn   10.3.21                      C.O.284 of 2020
72

                          RITU PODDAR NEE KANORIA VS. AMIT
               PODDAR

                          Mr. Aniruddha Chatterjee
                          Mr. Saptarshi Kr. Mal
                          Mr. Debabrata Roy
                                    ..for the petitioner
                          Mr. Probal Mukherjee
                          Mr. Kaushik Dey
                          Mr. Sutirtha Das
                                        ..for the opposite party

                          This revisional application has been filed by

               the respondent/wife in Matrimonial Suit No. 1913 of

2017, pending before the learned Additional District

Judge, 7th Court, Barasat, District North 24 Parganas.

The petitioner is aggrieved by an order of

rejection of an application filed by the petitioner to allow

her to tender a photocopy of a letter written by the

husband dated December 21, 2016 and have the same

marked as an exhibit.

According to the learned Court below, the

petitioner had failed to prove the circumstances under

which the original was destroyed and/or lost from her

custody and as such secondary evidence as envisaged

under Section 65 of the Evidence Act could not be

allowed by marking the said photocopy of the letter as an

exhibit.

The learned Court below was further

persuaded by the fact that the document was shown to

the opposite party at the time of his cross-examination

and the opposite party denied his signature on the said

document.

Mr. Chatterjee, learned Advocate appearing on

behalf of the petitioner/wife submits that the petitioner

had all along mentioned about the existence of the said

letter in the written objection to the effect that the

husband had written a detailed letter on December 21,

2016 containing certain issues with regard to the

marriage and laid down certain terms and conditions.

Thus, it is not a new case and/or afterthought which the

petitioner wanted to bring into evidence by filing a

photocopy of the letter. Mr. Chatterjee further submitted

that the learned Court below could not have thrown out

the said document at the threshold but should have

admitted the said document, marked the same as an

exhibit and the probative value of the said document

could have been decided at the trial. He relied on the

decision of the Hon'ble Apex Court in the matter of Bipin

Shantilal Panchal Vs. State of Gujrat And Another

reported in (2001) 3 SCC, wherein the Hon'ble Apex

Court observed that not allowing the document to be

marked as an exhibit when an objection is raised, is an

archaic practice and should be avoided in order to ensure

speedy disposal of cases. Their Lordships were of the view

that it would be fair, just and also beneficial for disposal

of cases, if the documents which are filed in Court was

marked as an exhibit by making note of the objection

raised by other parties.

The relevant paragraphs are quoted below :-

"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 fallout 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 the revisional court, when the same question is recanvassed, 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 remoulded 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 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 recanvassed 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."

Mr. Chatterjee also relied on the decision of

Rakesh Mohindra Vs. Anita Beri reported in (2016)

16 SCC 483, in which the Hon'ble Apex Court held that,

just because a party was allowed to adduce secondary

evidence, the same would not exonerate the party from

the requirement of the law to prove the document and

establish its probative value and the genuineness and

correctness of the said document can be taken care of at

the time of final hearing of the suit.

Mr. Mukherjee, learned Advocate appearing on

behalf of the opposite party/husband submits that the

husband had already denied the existence of such a

document. That the wife had not been able to prove that

the original was lost. That the learned Court below was

not convinced with the explanation given by the wife with

regard to loss of the original and once the learned Court

below was not satisfied with the basis for tendering a

document by way of secondary evidence, this Court in

exercise of power under Article 227 of the Constitution of

India should not interfere with the order impugned.

I have heard the rival contentions of the

learned Advocates for the respective parties. In the

written objection filed by the wife, there is elaborate

discussion with regard to the letter dated December 21,

2016, a photocopy of which is sought to be tendered in

evidence. In the application filed by the wife, it has been

categorically mentioned that the original was destroyed

by the husband by scratching out his signature but a

photocopy was kept in a different place. That the

photocopy was made and compared with the original and

ought to be marked as an exhibit. Thus, the basic

foundation which is required to be laid for production of

the photocopy of the letter under Section 65 is available

from the application. The probative value of the said

document is not to be decided at the time of tender. The

wife will always be under an obligation to prove the

document and contents thereof at the trial of the suit.

The order impugned is quashed and set aside

to the extent of not accepting the photocopy of the

document dated December 21, 2016. The learned Court

below is directed to accept the photocopy of the said

letter and mark the same as exhibit and also make a note

of the objection of the husband on the said exhibit.

With the above observations, this revisional

application is disposed of.

There will be however no order as to costs.

Urgent photostat certified copy of this order be

given to the parties on priority basis, if the same is

applied for.

(Shampa Sarkar,J.)