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2013 DIGILAW 465 (MAD)

M. Jeyasankar v. R. Malathi

2013-01-22

G.RAJASURIA

body2013
JUDGMENT 1. The defendant filed an application in I.A.No.452 of 2012 under Order 8 Rule 3 of CPC seeking permission of the Court to file additional documents on her side, whereupon the Court passed the order. The operative portion of the order would run thus: “This Court has gone through each and every document filed by the present petitioner and from the perusal of the same, document numbers 1, 2, 3, 5, 7 to 15, 17, 19, 20 and 21 are ordered to be received and marked through D.W.1 subject to proof and relevancy. In respect of those document numbers 4, 6, 16, 18 and 22 it is hereby ordered that the petitioner can produce those documents and mark the same through the concerned persons by process known to law. Accordingly this application is ordered.” 2. Being aggrieved by and dissatisfied with the order, the present Civil Revision Petition has been focussed on various grounds. 3. The learned counsel for the revision petitioner would learnedly and legally, appropriately and appositely, point out the defect in the order to the effect that in the said order, while allowing the application in permitting the defendant to file documents belatedly, the Court also permitted the defendant to mark the documents. 4. I would like to point out that the Court, at the time of granting leave to the defendant to file such documents, is not expected to pass any order regarding marking. No doubt, the Court observed that the document could be marked through concerned persons in the way known to law. I would like to refer to the decision of the Apex Court in (2010) 8 SCC 423 (Shalimar Chemical Works Limited vs. Surendra Oil and Dal Mills (Refineries and others)). Certain excerpt 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. Certain excerpt 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: (SCC p. 764, para 20) “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 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. 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 in original). 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 above precedent would show that filing of document is one thing and marking is another. The documents should be got marked only as per the procedure contemplated under the aforesaid decision. When on the defendant's side, documents are to be marked, the plaintiff is at liberty to raise objections. A mere running of the eye over the above precedent would show that filing of document is one thing and marking is another. The documents should be got marked only as per the procedure contemplated under the aforesaid decision. When on the defendant's side, documents are to be marked, the plaintiff is at liberty to raise objections. If the objections are concerning stamp duty and penalty, then, immediately on that issue, an order should be passed by the Court. In respect of other objections, the Court can record the objections and reserve orders thereon to be passed along with the disposal of the main suit itself. However, the documents to be marked even subject to objections, should be ex-facie and prima facie worthy of being marked in a Court Proceedings and all piece of papers cannot be marked subject to objections indiscriminately. 6. With the above observations, the Civil Revision Petition is disposed of. Consequently, the connected miscellaneous petition is closed. No costs.