Narendra Kumar Sobati vs Mansukh Lal Kotecha
2025 Latest Caselaw 5480 Jhar

Jharkhand High Court

Narendra Kumar Sobati vs Mansukh Lal Kotecha on 4 September, 2025

Author: Gautam Kumar Choudhary

Bench: Gautam Kumar Choudhary

                                                               2025:JHHC:26950




IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     C.M.P. No. 374 of 2024
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Narendra Kumar Sobati, son of Late Krishna Lal Sobati, resident of Ashok Colony, Village Sewta, Marar, P.O. and P.S. Mandu, District Ramgarh, Jharkhand .... .... .... Petitioner Versus

1. Mansukh Lal Kotecha, son of Late Amrit Lal Kotecha

2. Ganga Ben Kotecha, wife of Late Amrit Lal Kotecha Both residents of Gola Road, Ramgarh Cantt., P.O. and P.S. Ramgarh, District Ramgarh, Jharkhand .... .... .... Opposite Parties

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

For the Petitioner : Mr. Shresth Gautam, Advocate Mr. Rishu Ranjan, Advocate For the Opp. Parties : Mr. Sumir Prasad, Advocate Mr. Abhishek Chandra, Advocate

Order No.08 / Dated : 04.09.2025 The defendant has filed the petition under Article 227 of the Constitution for quashing the order dated 20.07.2023 passed in Original Suit No.10 of 2010 whereby and whereunder the certified copy of examination- in-chief on affidavit of the plaintiff which was submitted in Title Suit No.13 of 2005, has been admitted into evidence and marked as Exhibit 2 in the present case.

2. Objection to the admissibility of the document is of three folds: -

Firstly, the said examination-in-chief was not subjected to the cross- examination, and therefore, it will not come within the meaning of evidence in view of its definition under Section 3(1) of the Evidence Act, read with Order III, Rule 1 of the CPC. Affidavit is specifically excluded from definition of evidence.

Secondly, this was very much within the knowledge of the plaintiffs which will be apparent from para 8 of the plaint and in rebuttal to it, a specific stand was taken in the written statement at para 11 that neither the said document had been signed by him nor there was any cross examination. But, despite this knowledge, the document was adduced into evidence at the stage of argument.

Thirdly, a document cannot be marked as exhibit unless the court is

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satisfied that there was sufficient material to arrive at a prima facie view that the contents of the documents have been proved. Reliance is placed on page 2173 of the commentary of CPC, 19th Edition, Volume 2.

3. Having considered the submissions advanced on behalf of the petitioner, there can be no dispute with the legal proposition urged by the petitioner/defendant that a document, which has been marked as an exhibit and is merely a certified copy of an examination-in-chief on affidavit from another case, and upon which no cross-examination has been conducted, does not, in strict terms, qualify as evidence.

4. The question that arises for consideration is whether such a document ought to be excluded from the trial, and whether the learned trial Court erred in marking it as an exhibit.

5. In order to appreciate the point, the scheme of Evidence Act is to be appreciated which is neatly divided into three parts. Part I from Sections 1 - 55, deals with relevancy and admissibility of evidence, Part II from Sections 56 - 100, deals with mode and mechanism of its proof and Part III Sections 101 - 167 is regarding production and effect of the document which has been proved. Here, we are not at the stage of appreciation of evidence. The question is proof of a document. If a document is relevant, then it is admissible into evidence, unless its admissibility is specifically barred.

6. This Court is of the view that even if a document does not strictly comes within the meaning of evidence, but is relevant and comes under 'matter', it can be proved during trial. This is for the reason that trial is an exercise to prove a fact giving rise to a right or liability. Word proved holds a pivotal place in the adjudicatory process, as on it depends the determination of a fact. Quite interestingly proved is not dependent on 'evidence' but on 'matter' which has been used in its definition under Section 3 of the Evidence Act is as under: -

7. "Proved".--A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

What is significant to note is that in the definition of proof,

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expression "evidence" is conspicuously absent and in place, the expression "matter" is there. The omission is not accidental, but it signifies the scope and ambit on the basis of which a fact can be said to be proved. The document which has been marked as exhibit even if it does not come within the meaning of evidence, it will certainly come within the expression "matter". Exposition of law has been succinctly made in this regard in Rajesh Yadav Vs State of U.P. , 2022 SCC On Line 150

13. The definition of the word "proved" though gives an impression of a mere interpretation, in effect, is the heart and soul of the entire Act. This clause, consciously speaks of proving a fact by considering the "matters before it". The importance is to the degree of probability in proving a fact through the consideration of the matters before the court. What is required for a court to decipher is the existence of a fact and its proof by a degree of probability, through a logical influence.

14. Matters are necessary, concomitant material factors to prove a fact. All evidence would be "matters" but not vice versa. In other words, matters could be termed as a genus of which evidence would be a species. Matters also add strength to the evidence giving adequate ammunition in the Court's sojourn in deciphering the truth. Thus, the definition of "matters" is exhaustive, and therefore, much wider than that of "evidence". However, there is a caveat, as the court is not supposed to consider a matter which acquires the form of an evidence when it is barred in law. Matters are required for a court to believe in the existence of a fact.

15. Matters do give more discretion and flexibility to the court in deciding the existence of a fact. They also include all the classification of evidence such as circumstantial evidence, corroborative evidence, derivative evidence, direct evidence, documentary evidence, hearsay evidence, indirect evidence, oral evidence, original evidence, presumptive evidence, primary evidence, real evidence, secondary evidence, substantive evidence, testimonial evidence, etc.

16. In addition, they supplement the evidence in proving the existence of a fact by enhancing the degree of probability. As an exhaustive interpretation has to be given to the word "matter", and for that purpose, the definition of the expression of the words "means and includes", meant to be applied for evidence, has to be imported to that of a "matter" as well. Thus, a matter might include such of those which do not fall within the definition of Section 3, in the absence of any express bar.

8. Thus, in different judicial pronouncements, Courts have held the following matters to be relevant in adjudication :-

a) Affidavits, admissions, confessions, demeanour of witnesses.

Court's personal assessment of probative value of evidence and reliability of witnesses.

b) Not merely can the Court base its conclusion on the effect of

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evidence of a witness taken as a whole, but it may also draw adverse inference against a party, who being in a position to adduce better evidence deliberately abstains from doing so.

            c)    Section 280 Cr.P.C/Order XVIII R 12
            d)    Section 313 Cr.P.C
            e)    A fact may be orally admitted in Court which would not

come within the word evidence as given in this Act, but it is still a matter which the Court before whom the admission was made, would have to take into consideration in order to determine whether the particular fact was proved or not.

9. Thus, the document marked as evidence, though not strictly comes within the definition of evidence will come within the expression 'matter' as under

Section 3 of the Evidence Act.

10. Further, whether to mark as exhibit or not, Hon'ble Supreme Court in Bipin Shantilal Panchal vs State Of Gujarat And Another, (2001) 3 SCC 1 held "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.

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.

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11. In this view of matter and for the reasons stated above, I do not find any infirmity in marking of the said document as exhibit.

Civil Miscellaneous Petition accordingly, stands dismissed. Interlocutory Application if any, is disposed of. It goes without saying that the said document will be marked as exhibit with objection.

(Gautam Kumar Choudhary, J.) Anit