Telangana High Court
Vemula Kumaraswamy vs Gujjula Anjali on 29 January, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
Civil Revision Petition No.232 OF 2020
ORDER:
Aggrieved by the order dated 08.01.2020 (hereinafter will
be referred as 'impugned judgment') in I.A.No.497 of 2019 in
S.O.P.No.269 of 2012 on the file of learned VI Additional District
and Sessions Judge at Godavarikhani, the respondents filed the
present Civil Revision Petition to set aside the impugned
judgment.
2. For the sake of convenience, hereinafter, the parties will
be referred as per their array before the VI Additional District
and Sessions Judge at Godavarikhani.
3. The brief facts of the case are that the petitioners filed
petition under Section 23 of the A.P. Societies Registration Act,
2001 against the respondent Nos.1 to 10 for certain reliefs.
During the pendency of the petition, the respondents have filed
petition in I.A.No.497 of 2019 Under Order XIII Rule 3 read with
Section 151 of the Code of Civil Procedure, wherein it was
alleged that that the respondents/petitioners during the cross
examination of their evidence as PW1, marked Exs.A1 to A58,
out of which most of the exhibits are Xerox copies and electronic
records, which cannot be marked without following the
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procedure, as such the same are required to be de-exhibited.
The petitioners have not even filed an application to lead
secondary evidence or any other application to accept the
electronic record. To the above said petition, the petitioners
have filed counter stating that the respondents have not
mentioned in the counter as to which documents are Xerox
copies and which are the documents that need to be de-
exhibited. The intention of the respondents is to delay the
proceedings. It is further contended in the counter that some of
the documents were received under Right to Information Act
and some of the documents were original and other documents
are certified copies and in fact no documents are Xerox copies
and no electronic records were filed before the Court. Further,
during the course of cross examination of PW1 either of the
respondents or their counsel did not raise any objection and in
such circumstances, once the document is marked, it cannot be
de-exhibited on the ground of such documents being Xerox
copies, hence, the petition is liable to be dismissed.
4. Based on the rival contentions, the learned VI Additional
District and Sessions Judge at Godavarikhani has allowed the
petition by de-exhibiting Exs.A1, A6, A12, A13, A16 to A20, A29
to A37, A39 to A41 and deleting them from "A" series of the
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petitioners' evidence. Aggrieved by the same, the petitioners
have filed the present Civil Revision Petition to set aside the
impugned order.
5. Heard both sides and perused the record including the
grounds of revision.
6. The first and foremost contention of the learned counsel
for the revision petitioners is that there is no provision in CPC to
de-exhibit the exhibits that were already marked and that trial
court ought not to have entertained the petition, which is
contrary to established principles of law. As seen from the
record, the petition in I.A.No.497 of 2019 was filed under Order
XIII Rule 3 read with Section 151 of the Code of Civil Procedure.
According to Order 13 Rule 3 CPC the Court may at any stage of
the suit, reject any document which it considers irrelevant or
otherwise inadmissible, recording the grounds for such
rejection. Thus, the above contention of the learned counsel for
the revision petitioners that there is no provision in CPC to de-
exhibit the exhibits that were already marked, will not sustain.
The learned trial Court Judge observed in the impugned order
that though Xerox and electronic records marked under above
exhibits do not require any stamp duty but since Ex.A1, A6,
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A13, A13, A16 to A20, A29 to A33, A36 and A37 are Xerox
copies, they are inadmissible in evidence.
7. The other contention of the learned counsel for the
revision petitioners is that the respondents ought to have taken
objections with regard to the admissibility, proof and relevancy
of the documents at the first instance. It is further contended
that the petition was filed only to drag the proceedings.
Ordinarily an objection to the admissibility of evidence should
be taken when it is tendered and not subsequently. 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 be raised even at a later stage or even in appeal or
revision. In the latter case, the objection should be taken before
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
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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 crucial test is whether an
objection, if taken at the appropriate point of time, would have
enabled the party tendering the evidence to cure the defect and
resort to such mode of proof as would be regular. The omission
to object becomes 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 then and there; 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 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. The 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.
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8. The objection raised by the petitioners/respondents
before the trial Court is that without following the procedure
under the Information Technology Act and also under Section
65-B of the Evidence Act, made attempt to mark the documents,
as such, it is just and necessary to expunge the same from the
record. The Apex Court in Shafhi Mohammad v. The State of
Himachal Pradesh 1 observed that the legal position on the
subject on the admissibility of the electronic evidence, especially
by a party, who is not in possession of device from which the
document is produced, such party cannot be required to
produce certificate under Section 65B(4) of the Evidence Act and
thereby, the applicability of requirement of certificate being
procedural can be relaxed by Court wherever interest of justice
so justifies. In Arjun Panditrao Khotkar v. Kailash
Kishanrao Goratyal 2 the view taken in Anvar v. Basheer was
agreed wherein it was held that Section 65B is a complete code
in itself for the admissibility of electronic evidence and shall not
be affected by other provisions of the Evidence Act. In Anvar v.
Basheer it was held that if an electronic record as such is used
as primary evidence under Section 62 of the Evidence Act, the
same is admissible in evidence, without compliance with the
conditions in Section 65-B of the Evidence Act. It is the case of
1 AIR 2018 SC 714
2 (2020) SCC OnLine SC 571
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the petitioners/respondents that the respondents have not even
filed an application to lead secondary evidence or any other
application to accept the electronic record. In Tamilnadu
Mercantile Bank Limited V. M/s.Sunitha Industries 3 the
Division Bench of this Court held that if no objection was raised
at the time of marking of Photostat copies of documents before
the trial Court, and the trial Court received and admitted the
documents in evidence assigning exhibit number, it amounts to
impliedly permitting the party to adduce secondary evidence
though no specific order is passed permitting to adduce
secondary evidence.
9. It is the contention of the revision petitioners that the
documents are not Xerox copies but in fact they were attested
by notary advocate. However, this Court is of the opinion that
though document attested by notary advocate may become
valid, it is not efficient as a piece of evidence in a Court of law.
10. Learned counsel for the petitioners/respondents relied
upon a decision in Srinivasa Builders v. A. Janga Reddy 4,
wherein the High Court of the then Composite State of
Telangana and Andhra Pradesh observed that it is the duty of
the Court of law to exclude all irrelevant or inadmissible
3 2016 (2) ALT 14 (DB)
4 2016 (2) ALT 321
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evidence even if no objection was taken by the opposite side.
Learned counsel for the petitioners/respondents relied upon a
decision in Chalasani Satyanarayana Murthy v. Chalasani
Rama Koteswara Rao and others 5, wherein the High Court of
Andhra Pradesh observed that when a document is per se
inadmissible in evidence under the provisions of the Indian
Evidence Act, it is inadmissible for all purposes and the defect
cannot be got over on the ground of the adversary not raising
any objection for marking the same at the earliest point of time
during the trial.
11. In view of the above discussion and considering the
principle laid down in the above said decisions, this Court is of
the view that the trial Court has rightly de-exhibited certain
documents from "A" series of the petitioners' evidence and thus,
there is no irregularity or illegality in the impugned order.
However, by considering the fact that the main case before the
trial Court is filed under the provisions of A.P. Societies
Registration Act, 2001, this Court is of the view that the revision
petitioners may be given an opportunity to produce the originals
or certified copies of Exs.A1, A6, A12, A13, A16 to A20, A29 to
A37, A39 to A41 (which were deleted by the trial Court from the
5 2010 (5) ALT 502
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evidence) before the trial Court, within two months from the
date of receipt of copy of this order and on production of such
documents, the trial Court shall proceed in considering such
documents in accordance with law. If the revision petitioners
fail to avail such liberty of producing the originals or certified
copies of such documents before the trial Court within the
stipulated period, the order passed by the trial Court holds
good.
12. With the above observations, the Civil Revision Petition is
disposed of. There shall be no order as to costs.
Pending Miscellaneous applications, if any, shall stand
closed.
_______________________________
JUSTICE M.G.PRIYADARSINI
Date: 29.01.2024
AS
