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2009 DIGILAW 961 (JHR)

Binay Kumar v. Chotan Mahto

2009-07-13

D.N.PATEL

body2009
JUDGMENT: 1. The present writ petition has been preferred under Article 226 of the Constitution of India against an order dated 24th of September, 2007, passed by Munsiff, Khunti, Distt:-Khunti, in Title suit No.26 of 1989, whereby the trial Court has not given Exhibit number, to the documents annexed with an affidavit for Examination-in-Chief. 2. Deeds of exchange were annexed with Examination-in-Chief Affidavit. The said deeds of exchange are unregistered documents, but, signed by the predecessor-in-title of the present petitioner (original plaintiff), as alleged by the learned counsel for the petitioner and as Exhibit numbers were not given by the trial court vide impugned order the present writ petition has been preferred. There is no dispute as to deficit stamp duty on these three documents, but, only dispute raised by original defendants was pertaining to need of registration of these documents. Whereas original plaintiff’s submission before trial court was : as these documents are properly stamped and as they are thirty years old documents, they must be given Exhibit numbers and there is no need of registration of these documents. 3. I have heard learned counsels for both the sides. Some of the respondents are served, but, they have not chosen to remain present before this Hon’ble Court. 4. Having heard counsels for petitioner as well as Respondents No1 to 4, and looking to the facts and circumstance of the case, it appears that:- I. The present petitioner is an original plaintiff who has instituted a Title Suit No.26 of 1989 and is claiming ownership of the suit property. II. It also appears from the facts of the case in view of the provisions of Code of Civil Procedure an affidavit has been filed for Examination-in-Chief by the present petitioner. Along with the said affidavit, a deed of exchange which is dated 15.12.1937 was also annexed though the said deed is not registered deed, but, the same is 30 years old document. The said document is referred in Examination-in-Chief affidavit, by plaintiff. Along with the said affidavit, a deed of exchange which is dated 15.12.1937 was also annexed though the said deed is not registered deed, but, the same is 30 years old document. The said document is referred in Examination-in-Chief affidavit, by plaintiff. Apart from the evidentiary value etc., for which an objection has been taken by the learned counsel appearing for the Respondents No.1 to 4, the document ought to have been exhibited, by the trial Court by mentioning that there is objection taken by the defendants and all objections can be dissolved and resolved at the time of final hearing of the Title Suit, but, novice practice adopted by the trial court that from the very beginning no to give an Exhibit number is running counter to a ratio propounded by the Hon’ble Supreme Court in Bipin Shantilal Panchal Vs. State of Gujarat and Another, (2001) 3 Supreme Court Cases 1 in Paragraphs No.13 and 14 read as under:- 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 realized 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. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realized 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.) (Emphasis supplied) 5. In view of the aforesaid decision, if a document is not given Exhibit number and if the matter is carried up to the appeal then the Appellate Court will have to consider the said document and matter might have to be remanded to the trial Court. To avoid this multiferiousness of proceedings and remand of the matter, always the document should be given Exhibit number tentatively and if the party is taking objection, it ought to be recorded and thereafter a tentative Exhibit number ought to be given, so that at the time of final hearing a proper care may be taken of said document and its evidentiary value. 6. Looking to the aforesaid decision rendered by the Hon’ble Supreme Court, I hereby, quash and set aside the order passed by the Munsiff in Title Suit No.26 of 1989 which is at Annexure-2 to memo of present petition and I hereby, direct the trial Court to give a provisional Exhibit number to the aforesaid documents recording an objection of the defendants and objection will be heard at the time of final hearing of the Title Suit. 7. I have come across, several such matters. To avoid multiferiousness of petitions, I hereby direct the registry of this Court to send copy of this judgment and order, to all the Judges of the rank of District Judge, and in turn, they shall circulate this judgment to further subordinate judicial officers. 8. In view of this the present petition is allowed to the aforesaid extent. 9. I. A. No.1478 is disposed of, in view of the aforesaid direction.