Delhi High Court

Coca Cola India vs Cp Malik on 18 April, 2009

Author: Vipin Sanghi

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                I.A. No. 1025/2009 in C.S.(OS) 2781/1999

                                     Date of Decision: 18th April, 2009

       COCA COLA INDIA                                       ....Plaintiff
                      Through:        Mr. Ramji Srinivasan, Sr. Advocate
                                      with Mr. Rahul Ravindran and Ms.
                                      Vartika Sahay, Advocates for
                                      Plaintiff.
                     versus

       CP MALIK                                        ....Defendant
                          Through:    Mr. Arun Kathpalia, Advocate.

       CORAM:
       HON'BLE MR. JUSTICE VIPIN SANGHI

1.     Whether the Reporters of local papers may        No
       be allowed to see the judgment?

2.     To be referred to Reporter or not?               Yes

3.     Whether the judgment should be reported          Yes
       in the Digest?

%                             JUDGMENT (Oral)

VIPIN SANGHI, J.

1. This application has been filed by the defendant, inter alia,

contending that the plaintiff be not allowed to exhibit the documents

which are inadmissible in evidence such as the alleged security deposit

agreement dated 16.09.1996 and the alleged Lease Deed dated

16.09.1996. This prayer is made on account of the fact that these

documents were not registered at the relevant time. The other relief

prayed for in the application is for dismissal of this suit on account of

plaintiff's failure to lead evidence by way of affidavit within the

stipulated time. So far as the delay in filing the evidence by way of

affidavit is concerned, the court had condoned the same and taken the

evidence by way of affidavit on record subject to payment of costs of

Rs. 25,000/- vide order dated 23.01.2009.

2. Mr. Kathpalia, learned counsel for the defendant submits that the

aforesaid two documents not being registered are inadmissible in

evidence and the plaintiff cannot be permitted to tender the same in

evidence. He submits that in case the plaintiff is so permitted even

provisionally subject to final decision on the issue of their admissibility

by the court, the defendant would be prejudiced as the cross-

examination of the plaintiff founded upon these inadmissible

documents, in any event, would be read in evidence.

3. In support of his submissions Mr. Kathpalia relies on Laijam

Singh Vs. Emperor, AIR 1925 Allahabad 405 to submit that matters

tendered in evidence by the prosecution affecting the case must be

dealt with summarily and instantly by the Judge at the trial when they

are tendered. He also relies on Bipin Shantilal Panchal Vs. State

of Gujarat, AIR 2001 SC 1158 to submit that even when the Supreme

Court held that the documents in respect of which an objection

regarding admissibility is raised at the trial stage should, in any event,

be tentatively be exhibited, the court made 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.

4. Mr. Ramji Srinivasan, learned Senior Counsel for the plaintiff

points out that the defendant had even earlier moved an application

raising the same objection under Order VII Rule 11 CPC by filing I.A. No.

8510/2000. The said application was disposed on 09.05.2007 by the

court by observing :

"The plea of the defendant is that certain documents relied upon by the plaintiff are inadmissible in evidence. If that be so, that would be a matter to be examined in trial and the consequence would be seen at the stage of final adjudication. The application stands disposed of."

5. Mr. Srinivasan submits that the defendant cannot be permitted

to obstruct the progress of the trial of the case by raising such

objections and insisting upon their decision by the court, at this stage.

The defendant should participate in and proceed with the trial, while

raising his objections, and subject to his objections. The issue with

regard to the admissibility of the aforesaid documents in terms of the

earlier order of the court would be decided by the court at the stage of

final adjudication.

6. Having heard learned counsels for the parties I am inclined to

agree with the submissions of the learned counsel for the plaintiff and

reject the prayer made in the present application, while reserving the

defendant's right to raise whatever objections the defendants have to

the admissibility of the aforesaid documents at the stage of final

hearing.

7. The Parliament has amended the Civil Procedure Code in the

year 2002 and has introduced an amended Rule 4 in Order XVIII CPC.

This amendment, apart from various other amendments, were brought

about to expedite the progress and disposal of civil proceedings to

which the C.P.C applies. The amended rule permits the examination-

in-chief of the witness to be filed on affidavit. Rule 4 (1) specifically

states that where documents are filed and 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.

Where the evidence is recorded by the commissioner, sub-rule (3)

provides, that he shall return such evidence signed by him to the court

appointing him and the evidence taken under it shall form part of the

record of this suit. Sub-rule (4) reads as follows:

"(4) The Commissioner may record such remarks as it thinks material respecting the demeanor of any witness while under examination:

Provided that any objection raised during the recording of evidence before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments."

8. From the aforesaid it is clear that it is open to the defendant to

raise all its objections, including regarding admissibility of documents,

during the recording of evidence before the commissioner who shall

record the objections and the same shall be decided by the court at

the stage of final arguments. If the decision on such objections is

insisted on being taken when they are raised, and not at the final

arguments stage, then the purpose of introducing the above

amendment would be defeated. It is the aforesaid provision which

appears to have led to the passing of the order dated 09.05.2007 in

I.A. No. 8510/2000.

9. So far as the decision cited by the learned counsel for the

defendant are concerned, the decision in Laijam Singh (supra), in my

view, has no application since at the relevant stage the recording of

the evidence was not permitted or done through the agency of the

court commissioner. The said decision specifically deals with a

situation where the evidence is being recorded by a Judge.

Consequently, this decision has no application the facts of the present

case. So far as the decision in Bipin Shantilal Panchal (supra) is

concerned, the same, in fact, supports plaintiff and not the defendant.

The relevant Paras 12 to 14 of the same reads as follows:

"12. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the Court does not proceed further without passing order on such objection. But the fall out of the above practice is this : Suppose the trial Court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the Appellate or revisional Court, when the same question is re-canvassed, could take a different view on the admissibility of that material in such cases the Appellate Court would be deprived of the benefit of that evidence, because that was not put on record by the trial Court. In such a situation the higher Court may have to send the case back to the trial Court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves? Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-moulded to give way for better substitutes which would help acceleration of trial proceedings.

13. When so recast, the practice which can be a better substitute is this : Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial Court

can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided "at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it-clear that if the objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed).

14. The above procedure, if followed, will have two advantages. First is that the time in the trial Court, during evidence taking stage, would not be wasted on account of raising such objections and the Court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior Court, when the same objection is re-canvassed an 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 of expenses."

10. From the aforesaid extract it is clear that the Supreme Court,

specifically while dealing with the objections relating to admissibility of

evidence, observed that the objection should be recorded and be dealt

with at the final stage. No doubt, the objection with regard to the

deficiency of stamp duty would have to be decided, when raised. It

appears that the amendment of the CPC aforesaid was a result of the

Supreme Court decision in Bipin Shantilal (supra). Consequently, I

find no merit in the application and the same is dismissed.

CS(OS) 2781/1999

Counsel for the plaintiff states that the costs of Rs. 25,000/- as

directed vide order dated 23.01.2009 stands paid, though belatedly.

Counsel for the defendant states that costs have been received. Delay