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2011 DIGILAW 369 (JHR)

Lal Singh Rajpal v. Raj Kapil Singh

2011-04-26

DHIRUBHAI NARANBHAI PATEL

body2011
ORDER D.N. Patel, J. 1. The present writ petition has been preferred against an order, passed by the learned Additional District Judge, Fast Tack Court No. I, Dhanbad, dated 9th November, 2009 in Title Appeal No. 33 of 2007, whereby, the application preferred by the present Petitioner (Appellant in Title Appeal No. 33 of 2007) for giving Exhibit number to a document, which is rent agreement and which was presented by the original Defendant in Title (Eviction) Suit No. 13 of 2004, has been rejected. 2.1 have heard learned Counsel for the Petitioner, who has submitted that as per the order passed by the lower appellate Court dated 25th July, 2008, both the parties are admitting the said document and, as such, the application preferred by the present Petitioner, who is Appellant in Title Appeal No. 33 of 2007, ought to have been allowed and the rent agreement, presented by the original Defendant in Title (Eviction) Suit No. 13 of 2004, ought to have been given Exhibit number and whatever may be the objection of the Respondent in Title Appeal No. 33 of 2007 would have been considered by the learned lower appellate Court at the time of final hearing of Title Appeal No. 33 of 2007. Learned Counsel for Petitioner has relied upon a decision rendered by the Hon'ble Apex Court in the case of Bipin Shantilal Panchal v. State of Gujarat and Anr., as reported in (2001) 3 SCC 1 . 3. Learned Counsel for the Respondents submitted that the document, in question, cannot be given Exhibit number, because a secondary evidence, which is not a original one being photo copy of the land agreement, cannot be given Exhibit number and that too at a belated stage and, therefore, rightly it has been marked 'X' for identification and has been kept for hearing along with Title Appeal No. 33 of 2007. 4. Having heard learned Counsel for both the sides and looking to the facts and circumstances of the case, I hereby quash and set aside the impugned order dated 9th November, 2009, passed by the learned Additional District Judge, F.T.C.-I, Dhanbad, in Title Appeal No. 33 of 2007, mainly for the following facts and reasons: (I) The present Petitioner was the original Plaintiff, who had instituted Title (Eviction) Suit No. 13 of 2004 before the trial Court. The said suit was dismissed and the Title Appeal No. 33 of 2007 has been instituted by the original Plaintiff/Petitioner. (II) It appears that the rent agreement, entered into between the parties to the suit, was already presented by the original Defendant in Title (Eviction) Suit No. 13 of 2004. The Defendant's witness No. 1 has also referred the said rent agreement in his deposition. Thus, the said rent agreement ought to have been given Exhibit number, but the learned Appellate Court has not given Exhibit number to it and, therefore, the need arose for the present Petitioner/Appellant to prefer an application to given Exhibit number to a rent agreement, which was presented by the Defendant and referred to by the Defendant's witness No. 1 in his deposition. (III) Looking to the nature of the document, it appears that the said document ought to have been given Exhibit number, as it affects the very root of the case. It appears that there are some objections for grant of Exhibit number to the said document by the original Defendant or the present Respondent. (IV) It has been held by the Hon'ble Supreme Court in the case of Bipin Shantilal Panchal v. State of Gujarat and Anr., as reported in (2001) 3 SCC 1 , paragraph Nos. 13 and 14 whereof, reads 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 that: 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. 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 recasted 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) Thus, whenever there is any objection raised by any of the parties for grant of Exhibit number, it has been provided by the Hon'ble Supreme Court that the document ought to be given Exhibit number by recording the objections and the objections are to be considered at the time of final hearing of the proceeding. (V) In view of the aforesaid decision, an error apparent on the face of the record has been committed by the learned lower appellate Court. The document ought to have been given the Exhibit number, objections raised by the original Defendant or the Respondent in Title Appeal No. 33 of 2007 ought to have been recorded and considered by the lower appellate Court at the time of final hearing of Title Appeal No. 33 of 2007. The document ought to have been given the Exhibit number, objections raised by the original Defendant or the Respondent in Title Appeal No. 33 of 2007 ought to have been recorded and considered by the lower appellate Court at the time of final hearing of Title Appeal No. 33 of 2007. (VI) One thing ought to have been kept in mind by the lower appellate Court that giving Exhibit mark/ number to a document does not amount that the said document becomes a conclusive piece of evidence. The evidenciary value of a document depends upon the totality of the evidences on record and it may happen that a document, which is given Exhibit number, may not have any evidenciary value, looking to the other evidences on record, adduced by the parties to the litigation and, therefore, Exhibit number ought to have been given to the rent agreement, as stated by the Petitioner before the lower appellate Court by adopting the method, which has been suggested in the aforesaid paragraphs of the decision, rendered by the Hon'ble Supreme Court. 5. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncement, I hereby quash and set aside the order dated 9th November, 2009, passed by the learned Additional District Judge, Fast Track Court No. I, Dhanbad, in Title Appeal No. 33 of 2007 and I hereby direct the lower appellate Court to give Exhibit number to the rent agreement, presented by the original Defendant, and the objections raised by the original Defendant/Respondent in Title Appeal No. 33 of 2007 will be considered at the time of final hearing of the Title Appeal. 6. This writ petition is, accordingly, allowed and disposed of. Petition allowed.