Gujarat High Court
Mohmadsuleman Rehmatkhan Pathan vs Himantbhai Naranbhai ... on 7 March, 2022
Bench: Ashokkumar C. Joshi
C/SCA/13630/2015 JUDGMENT DATED: 07/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13630 of 2015
With
R/SPECIAL CIVIL APPLICATION NO. 13625 of 2015
With
R/SPECIAL CIVIL APPLICATION NO. 13626 of 2015
With
R/SPECIAL CIVIL APPLICATION NO. 13627 of 2015
With
R/SPECIAL CIVIL APPLICATION NO. 13628 of 2015
With
R/SPECIAL CIVIL APPLICATION NO. 13629 of 2015
With
R/SPECIAL CIVIL APPLICATION NO. 13631 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
=======================================
Whether Reporters of Local Papers may be
1 NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? YES
Whether their Lordships wish to see the fair copy
3 NO
of the judgment ?
Whether this case involves a substantial question
4 of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
=======================================
MOHMADSULEMAN REHMATKHAN PATHAN
Versus
HIMANTBHAI NARANBHAI PANCHAL-PROP.M R INDUSTRIES
=======================================
Appearance:
DHRUVIK K PATEL(7769) for the Petitioner(s) No. 1
MR MAHESH R SHAH(1186) for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 1
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C/SCA/13630/2015 JUDGMENT DATED: 07/03/2022
CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 07/03/2022
ORAL JUDGMENT
1. Rule.
2. These petitions under Article 227 of the Constitution of
India arise out of the orders dated 14.07.2015 passed by the
learned Judge, Small Cause Court No. 3, Ahmedabad in the
applications filed by the present petitioner - original plaintiff for
exhibiting the documents produced in different HRP suits filed by
him. The said applications came to be rejected by the learned
Court below and hence, the petitioner is before this Court.
3. Heard, learned advocate Mr. N. V. Gandhi with learned
advocate Mr. Dhruvik K. Patel for the petitioner and learned
advocate Mr. Mahesh R. Shah for the respondent.
3.1 The learned advocate for the petitioner submitted that the
learned trial Judge has committed an error in not exhibiting the
documents produced by the petitioner - plaintiff though proved
by the petitioner through oral evidence. He submitted that the
learned trial Judge has failed to appreciate the fact that when the
evidence is recorded in the form of affidavit, the admissibility of
the documents produced along with the affidavit, is to be decided
in accordance with the provisions of O.13 R.4 of the Civil
Procedure Code, 1908 (CPC). Last but not the least, the learned
advocate for the petitioner submitted that, at least, the learned
trial Judge could have exhibited the said documents tentatively,
but it is not the case. Thus, making such submissions, he urged
to allow these petitions and to issue direction to exhibit the
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documents in question.
4. As against this, the learned advocate for the respondents
heavily resisted the petitions and submitted that the petitioner -
plaintiff has failed to prove the documents in question and
therefore, the learned trial Judge has rightly rejected the
applications of the petitioner - plaintiff to exhibit such
documents. He further submitted that the witness of the plaintiff
himself has admitted in cross-examination that after 2004, he
has not issued the rent receipts and accordingly, the learned trial
Judge has rightly appreciated the evidence adduced before him
and hence, no interference is required at the hands of this Court
in these petitions under Article 227 of the Constitution of India
and eventually, it is requested to dismiss the same.
5. Regard being had to the submissions made and considering
the impugned order as well as material on record, the issue
involved in these petitions appears to be in a very narrow
compass that is to say, the petitioner - plaintiff produced certain
documents in the suits filed by him and to prove the same, also
examined witness. The learned trial Judge, considering the cross-
examination of the said witness and after evaluation of the
evidence, rejected the said applications and thereby, declined to
exhibit the documents as the petitioner - plaintiff failed to prove
the contents of the same.
5.1 In this regard, it would be apt to refer to a celebrated
decision of the Apex Court in Bipin Shantilal Panchal v. State
of Gujarat, MANU/SC/1529/2001, wherein, the Court has held
as under:
"10. On that day the defence raised another objection
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regarding admissibility of another document. The trial
Judge heard elaborate arguments thereon and upheld the
objection and consequently refused to admit that particular
document. What the prosecution did at that stage was to
proceed to the High Court against the said order and in the
wake of that proceeding respondent filed an application on
9.11.2000, for enlarging him on bail on the strength of the
order passed by this Court on 31.3.2000 (extracted above).
11. We are compelled to say that the trial Judge should
have shown more sensitivity by adopting all measures to
accelerate the trial procedure in order to reach its finish
within the time frame indicated by this Court in the order
dated 31.3.2000 since he knew very well that under his
orders an accused is continuing in jail as an under trial for a
record period of more than seven years. Now, we feel that
the Additional Judge, whether the present incumbent or his
predecessor, was not serious in complying with the
directions issued by this Court, though the parties in the
case have also contributed their share in bypassing the
said direction.
12. As pointed out earlier, on different occasions the trial
Judge has chosen to decide questions of admissibility of
documents or other items of evidence, as and when
objection's thereto were raised and then detailed orders
were passed either upholding or overruling such objections.
The worse part is that after passing the orders the trial
Court waited for days and weeks for the concerned parties
to go before the higher Courts for the purpose of
challenging such interlocutory orders.
13. It is an archaic practice that during the evidence
collecting stage, whenever any objection is raised
regarding admissibility of any material in evidence the
Court does not proceed further without passing order on
such objection. But the fall out of the above practice is
this : Suppose the trial Court, in a case, upholds a particular
objection and excludes the material from being admitted in
evidence and then proceeds with the trial and disposes of
the case finally. If the Appellate or Revisional Court, when
the same question is 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
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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 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.
16. We, therefore make the above as a procedure to be
followed by the trial Courts whenever an objection is raised
regarding the admissibility of any material of any item of
oral evidence.
17. Now, for disposal of the present application we may
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state that there is no point in our granting further time to
the trial Court to complete the trial. It is for the trial Court
to complete it as early as possible. But we would not do
anything to deprive the accused in custody of his right to
move for bail on account of the delay thus far occasioned.
The bail application would be disposed of by the Court
concerned on its own merits. With the above observations
we dispose of this application."
5.2 Thus, the Apex Court, in no uncertain terms, has laid down
that 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. The learned trial Judge, in the
instant case, could have done so in the case on hand also.
5.3 Further, a beneficial reference may be made to the
observations made by this Court in the decision in State of
Gujarat v. Ashulal Nanji Bisnoi, MANU/GJ/1037/2001, which
are extracted herein below:
"6. Having heard learned counsels as above said, it
clearly appears that serious error has been committed by
the learned Addl. Sessions Judge in firstly discarding the
statements of the respondent, may it be, confessional from
taking the same on the record and secondly the error
learned Addl. Sessions Judge committed was regarding
dropping down the shutters of recording of the evidence of
PW-16. It clearly appears that the facts of the case are
clearly covered by the decision of the Apex Court in Bipin
Shantilal Panchal's case (supra). Therefore, we shall decide
as to whether the order of the learned Addl. Sessions Judge
at this juncture deciding the objection is proper or not. This
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Court cannot accept the contention of the learned advocate
for respondent No. 1 that what is decided regarding the
stage of recording of the evidence in Bipin Shantilal
Panchal's case (supra) by the Apex Court is not ratio
decidendi and binding precedent under Article 141 of the
Constitution of India. Even applying the principle as laid
down by the Supreme Court in the matter of Union of India
vs. Dhanwanti Devi (supra), as referred by the learned
Advocate for the respondent No. 1 what is decided by the
Apex Court in Bipin Shantilal Panchal's case (supra) is ratio
decidendi and has binding effect under Section 141 of the
Constitution of India. Not only the question of extension of
period for the completion of trial was under consideration
of the Supreme Court but the very vital question of speedy
trial in the Trial Court was under consideration before the
Supreme Court and, therefore, the Supreme Court was
pleased to open the judgment in following words :
"1. This is yet another opportunity to inform the
trial courts that despite the procedural trammels and
vocational constraints we have reached a stage when
no effort shall be spared to speed up trials in the
criminal courts. It causes anguish to us that in spite of
the exhortations made by this Court and a few High
Courts, time and again, some of the trial courts
exhibit stark insensitivity to the need for swift action,
even in cases where the accused are languishing in
prisons for long years as undertrials only on account
of the slackness, if not inertia, in accelerating the
process during trial stage.
Therefore, what is decided by the Supreme Court in paras
13, 14,15 and 16 is not a passing observations but
deliberate judicial decision on consideration of point
involved in the matter always vital one regarding the
speedy trial of the undertrial accused in the Trial Courts.
Not by a whisper, it could be said that the decision of the
Apex Court in Bipin Shantilal Panchal's case (supra) has no
binding effect. In para 13, 14, 15 and 16, the Supreme
Court has observed as under :
xxx (already extracted herein above)
7. True it is that the courts must admit the evidence in
the manner and method which is prescribed by the Indian
Evidence Act. No courts can hold different procedure than
laid down by the Indian Evidence Act, only relevant and
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admissible evidence can be proved and inadmissible or
irrelevant evidence cannot be proved. Indian Evidence
Act nowhere lays down that when objection about
the irrelevancy and admissibility was raised, is to be
decided by the court then and there and to proceed
further thereafter for recording of evidence. There is
no express or implied mandate in this respect laid
down by the Indian Evidence Act. By phrase
"admissible and relevant", it clearly means that
admissible for the consideration of the judge,
"admissible and relevant" for the consideration of
the judge to pronounce the judgment. It cannot be
laid down therefore that the statements or
documents which are not admissible or relevant,
cannot be taken on the record. It is nowhere
provided by the Indian Evidence Act that the
material which the judge thinks not relevant or
inadmissible, cannot be brought on record. Evidence
and material which may not be relevant or
admissible cannot be precluded from placing on
record. On the contrary it is more desirable to
preserve it on record because as said by the
Supreme Court in Bipin Shantilal Panchal's case that
how Appellate or Revisional cannot come to the
conclusion without that material on record, whether
the Trial Court has rightly exercised the discretion.
Therefore, the conducive procedure must be to
record the evidence and put a note of objection
raised and decide the same at the final judgement
and that is what decided by the Supreme Court and
directed in the above said Bipin Shantilal Panchal's
case (supra). The procedure as prescribed and
directed by the Apex Court is in consonance with the
provisions of the Indian Evidence Act. The principle
that the Judge should take into consideration only
the admissible and relevant evidence cannot be
combated with and the Supreme Court in the above
said decision of Bipin Shantilal Panchal has not
discussed this aspect. The Supreme Court has only
laid down that for the speedy trial, it is necessary
that the Judge should record the evidence
completely including the objection raised and decide
at final stage that what material could be admitted
and said to be relevant for pronouncement of the
judgment and therefore in this view of the matter
the order of the learned Addl. Sessions Judge closing
down the evidence and to conclude at the recording
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of the evidence stage that those statements were
inadmissible in evidence is clearly in breach of the
direction of the Apex Court in Bipin Shantilal
Panchal's case (supra).
8. The facts go to show that the witness is yet to be
examined fully, the prosecution has not been given chance
to lay down the foundation to declare that PW-16 is an
expert witness. What is stated by PW-16 is her qualification
and the fact that the accused were brought before her and
one of the accused consented to go for the Lie Detection
Test. Now at this juncture before the witness proceeds
further the defence and the court jumped to the conclusion
that the statements recorded by PW-16 were inadmissible
and, therefore, her evidence was closed by the learned
Addl. Sessions Judge. Even, the statements which were
held irrelevant and inadmissible were not allowed to be
brought on the record and, therefore, as has been
apprehended by the Supreme court in Bipin Shantilal
Panchal's case has taken place in this case that this court is
deprived of the material which is held inadmissible by the
Trial Court. The order, therefore also, is required to be
quashed and set aside.
9. The law is now well established that the orders which
affects the rights of the parties ultimately are the final
orders may have been passed at the interlocutory stage,
Revision Application is maintainable against such orders.
Order which is impugned certainly goes to the root of the
matter and since the evidence of PW-16 is closed by the
learned Addl. Sessions Judge, the same affects the rights
finally of the prosecution and, therefore, the order
impugned cannot be said to be an interlocutory order.
10. The arguments advanced on merits in view of what is
discussed above in respect of whether the statements are
relevant or irrelevant as Extra-judicial confession requires
no adjudication by this Court at this juncture. It will be for
the trial court to decide as directed by the Apex Court.
11. In this view of the matter while setting aside the order
impugned, the trial court is directed to resume the
evidence of PW-16 from the stage where it has been
closed. The trial court shall give an opportunity to the
prosecution to lay down foundation for PW 16 to be an
expert witness in Lie Detection Test. The Trial Court shall
also give an opportunity to the prosecution to place on
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record data and material in respect of Lie Detection Test. If
the prosecution projects the witness as an expert, then it
will be the duty of the prosecution to lay necessary
foundation for the same. If any objection in respect of the
recording of the evidence or in respect of any document
which may be produced by this witness or prosecution, is
raised by any of the parties, the Trial Court shall decide the
same as directed by the Apex Court in Bipin Shantilal
Panchal's case.
12. In this view of the matter with the above said
directions to the trial Court, this Revision Application is
allowed and the order impugned is set aside. Rule is made
absolute to that extent."
5.4 The HRP suits, filed by the petitioner - plaintiff are of the
year 2011, the aforesaid decision of the Apex Court in Bipin
Shantilal Panchal is of the year 2001 and these petitions are of
the year 2015, meaning thereby, when the learned trial Judge
had decided the impugned applications, the aforesaid decision of
the Apex Court (in Bipin Shantilal Panchal) was very much
available to him. Had the said decision been taken into
consideration by the learned trial Judge, the suit might have been
decided finally by now. Be that as it may.
6. For the aforesaid observations and discussion, these
petitions succeed and are accordingly allowed in part. The
impugned orders in each petition, dated 14.07.2015 passed by
the learned trial Court are set aside. The trial Court concerned is
directed to exhibit the documents in question tentatively, making
note of the objections raised, subject to the said objections to be
decided at the last stage in the final judgment, as laid down in
the case of Bipin Shantilal Panchal (supra). Rule is made
absolute accordingly in each petition.
6.1 It is clarified that this Court has not gone into the merits of
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the documents so directed to be tentatively exhibited and the
learned trial Judge concerned shall decide the admissibility
thereof, as aforesaid, without being influenced by this order.
6.2 Direct service is permitted.
[ A. C. Joshi, J. ]
After this order is passed, the learned advocate for the
petitioner requested that the sum deposited by the petitioner at
the time of issuance of notice of Rs.5,000/- in each petition may
be directed to be refunded, however, considering the order dated
25.08.2015, whereby, the petitioner was directed to deposit such
amount towards costs of the petition, the request is not acceded
to.
[ A. C. Joshi, J. ]
hiren
