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2018 DIGILAW 1700 (GAU)

Hulashmal Verma v. Tarachand Chimanram

2018-12-04

KALYAN RAI SURANA

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JUDGMENT : Kalyan Rai Surana, J. 1. Heard Mr. Hulasmal Verma, petitioner in person as well as Mr. P.J. Saikia learned counsel for the respondent. 2. By this revision under article 227 of the Constitution of India, the petitioner has challenged the following: a. Order dated 16.12.2016 passed by the learned Munsiff No. 1, Dibrugarh in T.S. No. 3/2011 by which his petition dated 23.09.2016 under Order XIII Rule 3 CPC for rejection of plaintiff's document No. 1 to 51 and 71; and b. Order dated 22.02.2017 passed by the learned Munsiff No. 1, Dibrugarh in the said suit thereby accepting plaintiff's document No. 71 without leave of the Court; and c. The allowing of marking of Exts. No. 73 and 74 filed by the plaintiffs on 29.11.2017 during cross-examination of the petitioner (DW-1) without obtaining any leave from the Court. 3. The respondent is the plaintiff in T.S. 3/2011 which was filed by the respondent for ejection of the petitioner-defendant from the suit premises on the ground of being a defaulter in payment of rent and for bona fide requirement of the suit premises. The petitioner had contested the suit by filing written statement and accordingly issues for trial was framed by order dated 27.04.2011. The amendment of plaint was allowed and the amended plaint was filed 13.09.2013. Accordingly, the petitioner had filed his additional written statement on 09.12.2013. 4. By this application, the petitioner has projected that the respondent as PW-1 filed his evidence on affidavit on 24.08.2016 and amongst the documents marked as exhibits, the Exts. No. 1 to 51 and 71 were introduced for the first time along with the evidence of the PW-1, without the said documents being filed with the plaint and without obtaining any leave from the learned trial Court for exhibiting the said documents. It is further projected that Exts. No. 1 to 51 were not filed or exhibited in original but the said exhibits were carbon copies. Hence, by filing petition No. 3263 dated 23.09.2016, under Order XIII Rule 3 CPC, the petitioner had prayed for ejection of the plaintiff's documents No. 1 to 51 and 71 as inadmissible. However, the learned trial Court by order dated 16.12.2016, had rejected the petition dated 23.09.2016 filed by the petitioner. 5. Hence, by filing petition No. 3263 dated 23.09.2016, under Order XIII Rule 3 CPC, the petitioner had prayed for ejection of the plaintiff's documents No. 1 to 51 and 71 as inadmissible. However, the learned trial Court by order dated 16.12.2016, had rejected the petition dated 23.09.2016 filed by the petitioner. 5. Thereafter, by filing petition No. 199/17 dated 18.01.2017, the petitioner prayed for ejection of plaintiff's document No. 71 which was filed for the first time with the evidence-on-affidavit filed by the petitioner. In the meanwhile, the PW-1 was cross-examined on 18.01.2017, 19.01.2017 and 25.01.2017. Thereafter, by order dated 22.02.2017, the learned trial Court had rejected petition No. 199/17 dated 18.01.2017. 6. Thereafter, the petitioner had filed his evidence-on-affidavit as DW-1 on 11.08.2017 and he was cross-examined on 02.11.2017, 03.11.2017 and 29.11.2017. In course of the cross-examination on 29.11.2017, the respondent had introduced and marked Ext. 73 and Ext. 74. In this regard, it is projected by the petitioner that the said 2 exhibits consisted of more than 50 pages and the said documents were marked as exhibits without furnishing any copy to the petitioner. 7. Accordingly, aggrieved by the introduction of Ext. 1 to 51 and Ext. 71, 73 and 74, the petitioner has filed this application. 8. The petitioner- in- person has submitted that the permitting of the marking of documents as exhibits without those documents being filed along with the plaint and without obtaining leave of the Court was per se illegal and contrary to the provisions of Order VII Rule 14 CPC and, as such, it is submitted that the learned trial Court ought to have exercised powers under Order XIII Rule 3 CPC to reject those documents. It is submitted that the introduction and marking of Exts. 1 to 51, Ext. 71, Ext. 73, Ext. 74 was done without prior leave of the Court. It is also submitted that carbon copy of rent receipts marked as Ext. 1 to Ext. 51 were not admissible in terms of the provisions of section 63 of the Evidence Act without the original being accounted for. It is further submitted that as the respondent had not tendered any evidence in connection with the documents marked as Exts. 73 and 74, the said documents could not have been marked as exhibits while cross examining the petitioner as DW-1. 9. It is further submitted that as the respondent had not tendered any evidence in connection with the documents marked as Exts. 73 and 74, the said documents could not have been marked as exhibits while cross examining the petitioner as DW-1. 9. In support of his submissions, the petitioner-in - person places reliance on the following cases:- 1. Vinayak M. Dessai Vs. Ulhas N. Nayak and others, WP No. 1014/2016 (para 17) decided on 15.09.2017 by the High Court of Bombay. 2. Shalimar Chemical Works Limited Vs. Surendra Oil and Dal Mills (Refineries) and others, (2010) 8 SCC 423 (para 7 and 12). 10. Per contra, the learned counsel appearing for the respondent submits that the present challenge is only a tactics to delay the disposal of the suit because the learned trial Court by its orders dated 16.12.2016 and 22.02.2017 had kept the matter of admissibility of documents open for being decided at the stage of judgment. 11. Having considered the submissions made by the petitioner- in- person as well as the learned counsel for the respondent, this Court finds that in the order dated 16.12.2016, the learned trial Court had stated as follows- "...the objection raised by the defendant side regarding admissibility of Doc. 1 - 51 of plaintiff is hereby noted. Admissibility of documents is a question which can be decided even at the stage of judgment...". Similarly, in the order dated 22.02.2017, the learned trial Court had observed as follows-"...considering the nature of substantial rights involved of both sides and judging and considering the matter on the scale of prejudice I deem it fit and proper to accept the document No. 71, admissibility of which will be decided on later. Thus, Pet. No. 199/17 of defendants stands rejected...". 12. It is also seen that proviso to sub-rule (1) of Rule 4 of Order XVIII CPC provides that- "provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subjected to the orders of the Court." 13. 12. It is also seen that proviso to sub-rule (1) of Rule 4 of Order XVIII CPC provides that- "provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subjected to the orders of the Court." 13. In the case of Shalimar Chemicals Limited (supra) cited by the petitioner in person, the trial Court had marked photocopies as exhibits, subject to objection of proof and admissibility and thereafter the suit was dismissed by judgment and order dated 28.09.1998 by holding that the available evidence on record did not establish the case of the plaintiff and it is in the aforesaid back-ground that the Hon'ble Supreme Court had held that the trial Court ought not to have marked as exhibits the photocopies of certificate of registration of trademark in the face of objection raised by the defendants and duplicated the leaving of issue of admissibility of those copies open and hanging by marking them as exhibits, subject to proof and admissibility. In this regard this Court has no dispute with the legal proposition laid down by the Hon'ble Supreme Court. However, this Court is of the considered opinion that the said ratio may not be squarely applicable under the facts of the present case in hand because of the fact that the provisions of Order VIII Rule 4 CPC was substituted by "the amending Act 22 of 2002, sec. 12(b), for rule 4 [as substituted by clause (i) of section 27 of Act 46 of 1999] (w.e.f. 1-7-2002)" and as the suit was decided by judgment and order dated 28.09.1998 (i.e. prior to the amendment of the CPC), the Hon'ble Supreme Court was appreciating law as it stood prior to amendment of CPC w.e.f. 01.07.2002. Moreover, in the present case, the learned trial Court is yet to decide on the admissibility of documents, as such, the scrutiny of the evidentiary value of those exhibits by this revisional Court is neither appropriate nor desirable. Therefore, the reliance upon the ratio laid down in the case of Vinayak M. Dessai (supra) appears to be premature as any decision touching upon the merit of the exhibits would cause severe prejudice in either of the parties in course of trial. 14. Therefore, the reliance upon the ratio laid down in the case of Vinayak M. Dessai (supra) appears to be premature as any decision touching upon the merit of the exhibits would cause severe prejudice in either of the parties in course of trial. 14. Under the circumstances when the trial Court has taken a view that the admissibility of the documents shall be decided at the stage of judgment, this Court finds that the said view is within the scope and ambit of the proviso to Order XVIII Rule 4(1) CPC and, as such, this Court does not find any jurisdictional error having been committed by the Court of the learned Munsiff No. 1, Dibrugarh. 15. Therefore, this Court is not inclined to interfere with the orders dated 16.12.2016 and 22.02.2017 as well as in respect of the acceptance of Exhibits No. 73 and 74 on 29.11.2017. Accordingly, it is provided that at the stage of final arguments in the suit, it would be open to the petitioner to remind the learned trial Court for hearing the parties on the admissibility of the exhibits No. 1 to 51, 71, 73 and 74 in terms of the above referred orders dated 16.12.2016 and 22.02.2017. Hence, this revision stands dismissed with the observations as made herein below. The parties are left to bear their own cost. 16. The parties are directed to appear before the learned Court of Munsiff No. 1, Dibrugarh on 17.12.2018 without any further notice of appearance and seek further instruction from the said learned Court. 17. As the case was argued by the petitioner-in-person and he was not represented by his counsel, the Registry is directed to inform him about this order at his e-mail address of hmverma@yahoo.co.in or sms alert at his mobile number 9435032630, which are provided in the filing form. Moreover, in terms of the provisions of Rule 5A of Order XX CPC, the petitioner-in-person is hereby informed that this order can be challenged before the Hon'ble Supreme Court of India within the period of limitation of 90 days as prescribed under Article 133(c) of Schedule of the Limitation Act, 1963.