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2012 DIGILAW 4786 (MAD)

M. Murugan v. D. Shanmugham

2012-11-23

G.RAJASURIA

body2012
ORDER 1. This Civil Revision Petition has been filed to get set aside the order dated 20.7.2011 passed in I.A. No. 769 of 2009 in O.S. No. 258 of 2004 by the learned II Additional Sub Judge, Tiruchirappalli. 2. Heard the learned counsel for the revision petitioner/defendant who would echo the cri de coeur of his client, the warp and woof of the same would run thus: The respondent/plaintiff filed the suit based on the alleged promissory note which is undated and it is not having the trappings of a promissory note. Whereupon the revision petitioner/defendant in addition to the written statement, filed an application in I.A. No. 769 of 2009 for rejecting the said document, so to say, the purported suit promissory note on the ground that it is not at all a promissory note. After hearing both sides, the lower Court dismissed it. 3. The point for consideration is as to whether there is any perversity or illegality in the order passed by the lower Court? The Point: 4. At the outset itself, I would like to recall and recollect the decision of the Honourable Apex Court in Shalimar Chemical Works Limited v. Surendra Oil and Dal Mills (Refineries) and Others (2010) 8 SCC 423 . Certain excerpts from it, would run thus: “10. ..... An objection to the admissibility of the document can be raised before such endorsement is made and the Court is obliged to form its opinion on the question of admissibility and express the same on which opinion would depend, the document being endorsed, admitted or not admitted in evidence. In support of the submission, he relied upon a decision of this Court in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple where it was observed as follows: ‘20. … 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 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 when 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 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 latter proposition is a rule of fair play. 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. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, 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. In the first case, acquiescence would be no bar to raising the objection in a superior Court.’ (emphasis supplied) 15. On a careful consideration of the whole matter, we feel that serious mistakes were committed in the case at all stages. In the first case, acquiescence would be no bar to raising the objection in a superior Court.’ (emphasis supplied) 15. On a careful consideration of the whole matter, we feel that serious mistakes were committed in the case at all stages. The trial Court should not have “marked” as exhibits the xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants. It should have declined to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility. The appellant, therefore, had a legitimate grievance in appeal about the way the trial proceeded.” 5. A mere running of the eye over the aforesaid precedent would exemplify and demonstrate that at the time of marking the document by the defendant, the plaintiff could very well object to it. Whereupon, the Court adhering to the aforesaid precedent shall deal with the matter and I need not unnecessarily dilate on which already the Honourable Apex Court elaborately laid down the procedures. Once such facility is available for the defendant, I am of the view that filing of such application was not tenable. The point is answered accordingly. 6. Wherefore, I would like to mandate while dismissing this Civil Revision Petition that the lower Court shall strictly adhere to the precedent of the Honourable Apex Court cited supra. Consequently, the connected Miscellaneous Petition is dismissed. No costs. Petition dismissed.