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2014 DIGILAW 426 (KAR)

Chikka Narasappa v. Venkatamma

2014-04-01

N.KUMAR

body2014
ORDER N. Kumar, J. 1. The defendants 3 and 4 have preferred this writ petition challenging the order dated 13.6.2013 where the Trial Court has declined to mark several documents on which they are relying on in support of their defense. The plaintiffs have filed a suit for a decree of permanent injunction in view of an attempt on the part of the defendants to encroach upon the plaint schedule property. The defendants have filed written statement contesting the claim. After framing issues, the plaintiffs have adduced evidence and now, the case is set down for defendants' evidence. 2. During the course of examination-in-chief, the defendants 3 and 4 sought to mark memorandum of partition dated 16.9.2010, 'B' khata certificate issued by the CMC, registered gift deed dated 16.11.2011 and a registered sale deed dated 16.11.2011 in support of their defense. But the plaintiffs raised objections to the marking of the said documents. The trial Court upholding the objection, observed that these documents are not relevant for the purpose of the case. Aggrieved by the said order, the defendants 3 and 4 are before this Court. 3. I have heard the learned Counsel for the parties. 4. Section 5 of the Evidence Act provides that the evidence may be given of facts in issue and relevant facts. Relevant facts have been defined in Section 3 of the Evidence Act. It provides that one fact is said to be relevant to another when one is connected with the other in any of the ways referred to in the provisions of the Evidence Act relating to relevancy of facts. Section 5 is the general section declaring that the evidence may be given of the existence or non-existence of facts in issue and of such other facts declared to be relevant under the said Section and no others. The force of Section lies in the last four words. Relevancy is the test of admissibility. Strictly speaking relevancy and admissibility are not the same thing. In general relevancy is determined by logic and human experience. Admissibility of facts is no doubt mainly determined by their logical relevancy to the matters in issue, or that relation between the two which renders the latter probable from existence or the non-existence of the former. But everything that is logically probative is not legally admissible in evidence. Admissibility is founded on law and not on logic. Admissibility of facts is no doubt mainly determined by their logical relevancy to the matters in issue, or that relation between the two which renders the latter probable from existence or the non-existence of the former. But everything that is logically probative is not legally admissible in evidence. Admissibility is founded on law and not on logic. Admissibility pre-supposes relevancy. The distinction between 'proof and 'relevancy' should be borne in mind. 5. In a trial, the first question that presents itself is what facts will a party be allowed to lay before the Court. This is a matter of relevancy and is determined by the pleadings or the facts in issue. The next question is, how will the Court allow the party to prove those admissible facts? This is a matter of proof. Admissibility is a quality standing between relevancy or probative value, on the one hand and Proof or Weight of Evidence on the other hand. Admissibility signifies that the particular fact is relevant and something more, that it has also satisfied all the auxiliary tests or extrinsic policies. Yet, it does not signify that the particular fact has demonstrated or proved the proposition to be proved, but merely that it is received by the Court for the purpose of being weighed with other evidence. Under the Evidence Act, admissibility is the rule and exclusion is an exception. Where a Court has doubt as to the admissibility of a document and its decision, it is open to appeal, it is better to admit than to exclude in doubtful cases. 6. An objection should be taken when the evidence is tendered and not before. The proper time to object to the admissibility of evidence is when the evidence is tendered. The time for determining questions as to the admissibility of evidence is ordinarily the time when they arise i.e., when the evidence is offered, instead of admitting the evidence in the first instance and reserving the question of law as to its admissibility until the end of the trial. The earlier rule was, all objections to admissibility should be dealt with at the time of reception of a document or at any rate at the earliest possible opportunity. The reason is that if the Court allows the objection, the party tendering the evidence may take steps to get the lacuna remedied. The earlier rule was, all objections to admissibility should be dealt with at the time of reception of a document or at any rate at the earliest possible opportunity. The reason is that if the Court allows the objection, the party tendering the evidence may take steps to get the lacuna remedied. The expression 'subject to objection' means that the objection remains undecided. In some cases, evidence has to be received subject to objection in anticipation of other evidence which in course will remove the objection. In such cases, a final decision on the objection must be recorded before the Court proceeds to judgment. Matters tendered in evidence must be dealt with summarily and instantly when they are tendered. However, in recent times, there is a marked departure from this rule. 7. The Apex Court in the case of Bipin Shantilal Panchal v. State of Gujarat and Another [ AIR 2001 SC 1158 ] has held as under:- "12. 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 fall out 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 Revisional Court, when the same question is recanvassed, 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." 8. 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." 8. Following the said judgment this Court in the case of K. Anjaneya Setty v. K.H. Rangiah Setty [ILR 2002 Kar 3613] has laid down the procedure regarding the admissibility of documents as under:-- "27. Therefore, having regard to the past experience, the difficulties experienced in following the settled practice and in view of the aforesaid Supreme Court judgment setting out the procedure to be followed, the proper course to be adopted in my view would be this. When an objection is raised for marking of a document, the Court should record the objections and thereafter permit the document to be marked subject to objections. Thereafter, the parties may be allowed to cross-examine the witnesses on the basis of the said document. At the end of the trial while hearing the arguments on the main, arguments regarding admissibility of the document also be heard. If the Court upholds the objections it could exclude the said document and the oral evidence led in respect of the said document from consideration. If the said objection is overruled then the Court would decide the case on merits by taking note of the said document and the oral evidence in respect of the said document on record. In appeal the Appellate Court would again go into the aforesaid questions and pronounce its judgment on merits. If ultimately the document is held to be inadmissible and the oral evidence recorded in respect of the said document has to be excluded, it could be said so much time of the Court in recording the evidence was wasted. When compared to the time taken to hear the arguments regarding objection and the orders passed thereon and in case the matter is taken up in revision the time spent therein, in appeal if that objection is taken and if that objection is overruled and the matter has to be remanded, the time so spent in recording evidence would be negligible and such a procedure could advance the cause of justice. It also cannot be forgotten that the parties to the litigation will be totally innocent about these procedural wrangles and they will never be able to understand why the document is not marked or why the matter is remanded, why without finally deciding the case on merits the case is being tossed from one Court to another. Therefore, though it is settled practice that when any objection is raised regarding marking of a document it has to be heard and decided at that stage itself, a time has come to recast or remould the procedure, as suggested by the Supreme Court which would be a better substitute for the existing one, which would help in acceleration of the trial, except of course regarding objection relating to deficiency of stamp duty." 9. The Trial Court appears to have been carried away by the argument of the plaintiffs that the documents sought to be marked by defendants have come into existence subsequent to the filing of the suit and are created for the purpose of defeating the just claim of the plaintiffs. In upholding such an argument, the Court has lost sight of the principle that mere marking of a document cannot amount to proof of the document. As pointed out in the aforesaid judgments, when an objection is raised for marking of a document, the Court should record the objections and thereafter permit the document to be marked subject to objections. Thereafter, allow the plaintiff to cross-examine defendants 3 and 4 with reference to the document. At the end of the trial, while hearing the arguments on the main, arguments regarding the admissibility of the document also be heard. If the Court upholds the objections, it could exclude the said document and the oral evidence led in respect of the said document be excluded from consideration. If the said objection is over-ruled, then the Court may proceed to decide the case on merits by taking note of the said document and the oral evidence in respect of the said finding on record. However, the said question regarding admissibility of the document or relevancy of the document cannot be decided at the time of marking of the document as the said objection does not relate to the non-payment or deficiency of stamp duty. In that view of the matter, the impugned order passed by the Court below cannot be sustained. However, the said question regarding admissibility of the document or relevancy of the document cannot be decided at the time of marking of the document as the said objection does not relate to the non-payment or deficiency of stamp duty. In that view of the matter, the impugned order passed by the Court below cannot be sustained. Therefore, I pass the following. ORDER The writ petition is allowed. The Trial Court is directed to mark these documents subject to the objections and hear the parties regarding objection at the time of final arguments and decide the case on merits.