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2011 DIGILAW 149 (JHR)

Shankeshwar Mahto v. Ramesh Mahto

2011-03-04

D.N.PATEL

body2011
Order In pursuance of the notice issued by this Court vide order dated 15th February, 2011, counsel for the petitioners submitted that when the petitioners had gone to serve the notice upon the respondents they refused to accept the notice of this Court and to that effect counsel for the petitioners has filed an affidavit on 3rd March, 2011. 2. Counsel for the petitioners submitted that the present petition has been preferred against an order, passed by the Sub-Judge-I, Khunti in Title Suit No. 21 of 2004 dated 9th December, 2010 whereby, the trial court has dismissed the prayer for giving exhibit number to original of a sale deed dated 7th October, 1980, which was presented by the present petitioners, who are original defendants in the aforesaid title suit. It is also submitted by the counsel for the petitioners that the sale deed, which was to be accepted was already referred to in an affidavit filed by the original defendants. Original of a sale deed was also presented before the trial court, but, the trial court without appreciating this aspect of the matter, dismissed the prayer for giving exhibit number and therefore, the present writ petition has been preferred. 3. It is further submitted by the counsel for the petitioners that original of a sale deed ought to have been given exhibit number and therefore, the order passed by the trial court may be quashed and set aside and the trial court may be directed to give exhibit number to the sale deed dated 7th October, 1980, which is part of the suit property in question. This document will facilitate the trial court in deciding the disputes between the parties and it is also prayed by the counsel for the petitioners that by quashing. the impugned order, let a direction be given to dispose of Title Suit No. 21 of 2004 within the stipulated time. 4. Having heard counsel for the petitioners and looking to the facts and circumstances of the case, the impugned• order, passed by the Sub-Judge-I, Khunti dated 9th December, 2010 in Title Suit No. 21 of 2004 is hereby, quashed and set aside on the following facts and reasons:- (i) The present respondents the original plaintiffs. who have instituted Title Suit No. 21 of 2004 before the Sub-Judge-I, Khunti. who have instituted Title Suit No. 21 of 2004 before the Sub-Judge-I, Khunti. (ii) It appears that out of total suit property, the present P!3titioners (original defendants) claim owner of 50 decimals of land by virtue of sale deed dated 7th October, 1980 and therefore, the sale deed was referred to in an affidavit filed by the original defendants. Once the original document is on record it ought to have been given exhibit number. The registered sale deed is also referred to by the original defendants in an affidavit, which is filed in Title Suit No. 21 of 2004. This affidavit is at Annexure-1 to the memo of the present petition. (iii) It appears that the trial court has unnecessarily gone into the details of the earlier writ petitions, filed by the original defendants before this Court bearing W.P.(C) No. 1996 of 2009, which was dismissed for want of deposition of requisites etc. There was no decision on merits. In the earlier writ petition, the prayer was to adduce additional evidence by the original defendants, which has nothing to do with, the ground of exhibit of the original of a sale deed of 1980. The prayer of the original defendants ought to have been accepted by the trial court. Whenever any document is presented before the trial court and especially when it is at original one and also when it is referred with affidavit, exhibit number ought to have been given by the trial court, even though there is a dispute raised by the either side. It has also been held by the Hon'ble Supreme Court in the case d Bipin Shantilal Panchal vs. State of Gujarat and Another as reported in (2001)3 SCC 1 , especially in paragraph nos. 13 and 14, which 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. 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 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 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) In view of the aforesaid decision also, the trial. court ought to have been given exhibit number to the sale deed dated 7th October, 1980. 5. In view of the aforesaid facts, reasons and judicial pronouncements, this writ petition is allowed and disposed of. Accordingly, the impugned order is hereby, quashed and set aside. court ought to have been given exhibit number to the sale deed dated 7th October, 1980. 5. In view of the aforesaid facts, reasons and judicial pronouncements, this writ petition is allowed and disposed of. Accordingly, the impugned order is hereby, quashed and set aside. The trial court is directed to give exhibit number to the original of a sale deed of 1980 presented by the present petitioners, who are original defendants. Moreover, it is submitted by the counsel for the petitioners that there is one more copy of record i.e. certified copy of the sale deed of 1980, which can also support the case of the present petitioners. The trial court is also directed to dispose of Title Suit No. 21 of 2004 as expeditiously as possible and practicable on the basis of the evidences on record.