On death of Gada Kalita through his L. Rs. v. Lohit Kalita
2013-04-26
B.D.AGARWAL
body2013
DigiLaw.ai
JUDGMENT B.D. Agarwal, J. 1. The order dated 22.7.2011, passed by the learned Munsiff No. 2, Darrang Mangaldoi, in Title Suit No. 13 of 2011, is under challenge in this revision application that has been filed by the defendants under Article 227 of the Constitution of India, read with Section 115 of the Code of Civil Procedure. Heard Sri S. Chauhan, learned counsel for the petitioners and Sri M.K. Sharma, learned counsel for the respondents. I have also gone through the impugned order. 2. Sri Chauhan, learned counsel submitted that even after cross-examination of the plaintiffs' witnesses they have been, inter alia, allowed to file additional affidavit to exhibit the documents, which is not tenable in law and will adversely affect the case of the defendants. 3. On the other hand, Sri Sharma, learned counsel submitted that the impugned order has been passed only to streamline the procedure regarding marking and exhibiting the documents and the impugned order will cause no prejudice to the defendants. Sri Sharma further submitted that the petitioners have suppressed the fact of filing of Petition Nos. 106 and 109 dated 21.4.2011 and Petition No. 151 dated 12.5.2011. 4. It is true that the defendants had filed as many as four petitions, three on 21.4.2011 and one on 12.5.2011, inter alia, seeking adjournment of the hearing on different grounds. However, the impugned order is not related to any of these four petitions Prima facie, the impugned order has been passed suo motu to set a guideline as to how the documents can be accepted and proved in the Court. 5. In the impugned order, the learned Munsiff has observed that different procedures are adopted at different places with regard to marking of the documents, annexed with the pleadings. At some places documents are accepted by way of giving oral evidence, even after filing of the affidavit evidence, and at some places the documents are marked in the affidavit itself. 6. Order VII Rule 14 and Order VIII Rule 1-A mandates the parties to submit their documents along with their pleadings. At the same time, Order XVIII Rule 4 has been amended in the year 2002 requiring that examination-in-chief of a witness shall be on affidavit. However, Proviso to Rule 4 of Order XVIII stipulates that the proof and admissibility of such documents shall be subject to the orders of the Court.
At the same time, Order XVIII Rule 4 has been amended in the year 2002 requiring that examination-in-chief of a witness shall be on affidavit. However, Proviso to Rule 4 of Order XVIII stipulates that the proof and admissibility of such documents shall be subject to the orders of the Court. In view of Proviso to Rule 4 of Order XVIII, it can be said that there is no bar to allow marking and exhibiting the documents, while filing evidence in the form of affidavit. However, the admissibility of the documents can be examined by the Court at a later stage also. 7. In the case of Salem Advocates Bar Association v. Union of India, AIR 2005 SC 3353 , it has already been observed, that there is no question of inadmissible documents being read into evidence merely on account of such documents being marked in the affidavit filed by way of examination-in- chief. In view of this, there is no necessity of asking the parties to adduce oral evidence only for the limited purpose of marking the exhibits. This exercise, in my considered opinion, would be nothing but a superfluous step in the matter of receiving evidence in chief. This procedure would, rather, frustrate the very intent and purpose of amending Order XVIII, Rule 4. However, if there is any objection by the other party regarding admissibility of the documents the witness can be asked to appear for proving his documents in accordance with law. 8. Be that as it may, since the impugned order was passed without any prayer from the plaintiffs to allow them to file additional affidavits the first direction to the plaintiffs to file additional affidavit is not tenable in law and on facts. I have already mentioned earlier that the plaintiffs' witnesses were already examined, cross-examined and all the documents were already marked and exhibited. Hence, the first direction has become otiose. In other words, the plaintiffs are not required to give additional affidavit evidence. 9. With the aforesaid clarification and observations, the revision petition stands disposed of. The stay order, if any, stands vacated. Both the parties are directed to appear in the trial Court on 27.5.2013 and receive further order(s). The Registry is directed to return the LCRs, immediately, along with a copy of this order. Petition allowed.