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2019 DIGILAW 616 (BOM)

Satish Janardhan Bhusari v. Ramesh Rambhau Bidkar

2019-03-01

MANISH PITALE

body2019
ORDER : 1. Rule, Rule made returnable forthwith. Heard finally with the consent of the learned Counsel for the parties. By this Writ Petition, the petitioner has challenged order dated 19-07-2016, passed by the Court of Joint Civil Judge, Senior Division, Nagpur, in Special Civil Suit No. 445 of 2011, below Exhibit-74, whereby the documents sought to be placed on record by respondent No. 1 (original plaintiff), were marked as exhibits and admitted in evidence. The petitioner (original defendant No. 1) has also challenged order dated 18-10-2016, whereby an application for review filed by the petitioner was rejected. 2. The respondent No. 1 (original plaintiff) filed a suit for specific performance against the petitioner and other defendants. On 17-06-2016, the respondent No. 1 filed his affidavit in lieu of evidence under Order 18, Rule 4 of the Code of Civil Procedure, 1908 (CPC). By order dated 17-06-2016, the trial Court recorded that the plaintiff (respondent No. 1 herein) was expected to give formal proof of the documents and the affidavit in evidence was taken on record. Thereafter, the suit was listed before the trial Court on 12-07-2016, but it was adjourned. Thereafter, on 19-07-2016, the first impugned order was passed, wherein the trial Court examined the stages in which the documents were accepted to be marked as exhibits and admitted in evidence and then the trial Court gave exhibits to the certain documents, while not marking others as exhibits, from among the documents placed on record on behalf of the respondent No. 1. On 17-03-2017, the petitioner filed an application for review marked as Exhibit 95, whereby the petitioner sought review of the aforesaid order dated 19-07-2016 of the trial Court, under which the documents were marked as exhibits and they were shown to have been admitted in evidence. The grievance raised on behalf of the petitioner in the Review Application was that, on 19-07-2016, the trial Court could not have straight way marked exhibits to the documents and due to the procedure adopted by the trial Court, the petitioner was prevented from raising abjection to marking of some documents as exhibits, due to which he had suffered grave prejudice. By the second impugned order dated 18-10-2016, the trial Court rejected the Review Application. Aggrieved by the aforesaid two impugned orders, the present Writ Petition has been filed. 3. Mr. By the second impugned order dated 18-10-2016, the trial Court rejected the Review Application. Aggrieved by the aforesaid two impugned orders, the present Writ Petition has been filed. 3. Mr. G.M. Shitut, learned Counsel appearing for the petitioner, submitted that the trial Court committed a grave error in depriving the petitioner an opportunity to raise objection in respect of the documents that were sought to be placed on record on behalf of the respondent No. 1. It is submitted that as per the law down by this Court and the Hon'ble Supreme Court, there would be certain documents in respect of which objection was required to be raised by the petitioner as the defendant at the very stage when the documents were sought to be marked as exhibits. It was submitted that in the absence of an opportunity granted to the petitioner to raise such objection, there was no enquiry conducted by the trial Court and this has resulted in the trial Court itself examining the documents and marking some of them as exhibits while not marking the others. It was submitted that during the course of trial the petitioner will suffer grave prejudice, because it could be held against him that he had failed to raise objection at the appropriate stage in respect of certain documents that stood already marked as exhibits. It was further submitted that this aspect was highlighted on behalf of the petitioner in the Review Application, but the trial Court failed to appreciate the same while passing the impugned order dated 18-10-2016. On this basis, it was submitted that the impugned orders deserve to be set aside and an opportunity was required to be granted to the petitioner to raise appropriate objection before the documents were marked as exhibits. It was further submitted that it had come on record that the affidavit in lieu of evidence filed on behalf of respondent No. 1 under Order 18, Rule 4 of the CPC, was not served on all the defendants and this further demonstrated the error committed by the trial Court. The learned Counsel for the petitioner placed reliance on the judgment of this Court in the case of Durgashankar S. Trivedi and Others vs. Babubhai Bhulabhai Parekh, 2003 (2) Mh. L.J. 576 : AIR 2003 Bom 487 and Hemendra Rasiklal Ghia vs. Subodh Mody, 2008 (6) Mh. The learned Counsel for the petitioner placed reliance on the judgment of this Court in the case of Durgashankar S. Trivedi and Others vs. Babubhai Bhulabhai Parekh, 2003 (2) Mh. L.J. 576 : AIR 2003 Bom 487 and Hemendra Rasiklal Ghia vs. Subodh Mody, 2008 (6) Mh. L.J. 886 : 2009 (2) AIR Bom R. 296 (FB). 4. On the other hand, Mr. P.S. Sadavarte, learned Counsel appearing for respondent No. 1, submitted that there was no error committed by the trial Court in passing the impugned order, because firstly, the procedure of marking documents as exhibits was essentially ministerial or administrative act of the Court and that the petitioner could always raise objection in respect of any of the documents that stood marked as exhibits. Secondly, it was submitted that as per the law laid down by the Hon'ble Supreme Court in the case of Rasiklal Manikchand Dhariwal and Another vs. M.S.S. Food Products, (2012) 2 SCC 196 : (2012 AIR SCW 1101, there was no requirement for the respondent No. 1 to have entered the witness box after having filed affidavit in lieu of evidence under Order 18, Rule 4 of the CPC and that therefore, on 19-07-2016, when the suit was listed before the trial Court, the said Court correctly proceeded to mark the documents as exhibits. It was further submitted that after the affidavit under Order 18, Rule 4 of the CPC filed on behalf of respondent No. 1 on 17-06-2016, the suit was listed before the trial Court on 12-07-2016 and on that date the petitioner failed to promptly raise any objection in respect of the said documents. Therefore, in such a scenario the grievance raised by the petitioner could not be said to be genuine. It was submitted that even otherwise, the petitioner cannot be said to have suffered prejudice, and it is still open to the petitioner to raise appropriate objection at the stage of evidence in respect of the documents already marked as exhibits. 5. Heard learned Counsel for the parties and perused the record. It was submitted that even otherwise, the petitioner cannot be said to have suffered prejudice, and it is still open to the petitioner to raise appropriate objection at the stage of evidence in respect of the documents already marked as exhibits. 5. Heard learned Counsel for the parties and perused the record. Before analyzing as to whether the trial Court was justified in passing the impugned order, instead of referring to all the judgments that the parties have relied upon, it would be sufficient to refer to the position of law enunciated by the Full Bench of this Court in the case of Hemendra Rasiklal Ghia vs. Subodh Mody (supra). In the said case, the Full Bench was concerned with the question as to the stage at which objection could be raised in respect of documents placed on record on behalf of the plaintiff. In this regard the Full Bench of this Court in the case of Hemendra Rasiklal Ghia vs. Subodh Mody (supra) classified documentary evidence vis-a-vis. adjudication thereon into three categories and then it was laid down about the stages and the manner in which objection could be raised in respect of the said documents. In this regard, following paragraphs of the aforesaid Full Bench judgment of this Court are relevant:- “Classification of Documentary Evidence vis-a-vis. Adjudication thereon: 71. The admissibility of the document in evidence may be broadly classified into three classes:- (i) that objection to the document which is sought to be proved is itself insufficiently stamped and the objection relates to deficiency of stamp duty of the document. (ii) where the objection does not dispute admissibility of document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. (iii) the objection that the document which is sought to be proved is ab initio inadmissible in evidence. 72. In the first case, the Court, before which the objection is taken about admissibility of document on the ground that it is not duly stamped, has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case as held by the Constitution Bench in Zaver Chand vs. Pukhraj Surana, AIR 1961 SC 1655 . Once a document has been marked as an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, section 36 comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the trial Court itself or to a Court of Appeal or Revision to go behind that order, such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction. Similar view is expressed by the Supreme Court in the case of Bipin Shantilal Panchal, AIR 2001 SC 1158 (supra) wherein it is made if the objection relates to deficiency of clear stamp duty of a document, the Court has to decide the objection before proceeding further. 73. In the case of Ram Ratan vs. Bajarang Lal, AIR 1978 SC 1393 the Apex Court reiterating the above view has observed that the Court, as of necessity it would be trial Court, before which the objection is taken about admissibility of document on the ground that it is not duly stamped, has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. So the objection relating to deficiency of duty cannot be raised or decided at the later stage of the suit. It has to be decided there and then unless taken on record subject to objection so as to avoid the rigour of section 36 of the Stamp Act. 74. In the second category of the case, the objection should be taken when the evidence is tendered. Once the document has been admitted in evidence and marked as an exhibit, the objection that it should not be 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. This proposition is rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would enable the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. This proposition is rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would enable the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object become 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 there and then; 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. 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. 75. If the objection to the proof of document is not decided and the document is taken on record giving tentative exhibit, then the right of the cross-examiner is seriously prejudiced. Once the document is used in cross-examination, then the document gets proved and can be read in evidence as held by the Supreme Court in the case of Ram Janki Devi vs. M/s. Juggilal Kamlapat, Kamlapat, (1971) 1 SCC 477 : AIR 1971 SC 2551 . If the cross-examiner decides not to cross-examine based on un-exhibited document and, ultimately, at the fag end of the trial the document is held to be admissible and proved, then, the cross-examiner as a rule of fair play would be entitled to further opportunity to cross-examine based on that document resulting in delayed trial defeating the very object and purpose of the amendment to the C.P.C. 76. In the third case merely because a document has been marked as “an exhibit” an objection as to its admissibility is not excluded. It is available to be raised even at later stage or even in appeal or revision. In the third case merely because a document has been marked as “an exhibit” an objection as to its admissibility is not excluded. It is available to be raised even at later stage or even in appeal or revision. There is no question of inadmissible documents being read into evidence merely on account of such documents being given exhibit numbers in affidavit filed by in examination-in-chief or while recording oral evidence. For example in case of unregistered sale deed or gift deed or lease deed requiring registration, no evidence of the terms thereof can be given. On the ground of public policy, evidence the derived from unpublished official records of State cannot be given except with the permission of the head of the department concerned as laid down under section 123 of the Evidence Act. Such a document, therefore, can be tentatively exhibited and the decision thereon can be postponed till the suit reaches the stage of judgment. However such objection has also to be decided before the judgment is delivered. The objection to the admissibility of such evidence can always be taken at any stage of the suit. 77. Thus, we hold and rule that ordinarily an objection to the admissibility of the document in first and second categories of cases (excluding third type of case) has to be taken before the document is exhibited which, necessarily, postulates decision on the objection then and there. In other words, whether document is admissible or inadmissible is matter which should always be ruled upon at the time when the document is being proved or put in or the question asked to the witness. Such practice and procedure is fair to both parties.” 6. It would be necessary to examine whether the trial Court, in the impugned order, followed the above quoted dictum. In this context, it would be relevant to quote the necessary paragraphs of the impugned order dated 19-07-2016, passed by the trial Court:- “3. For better understand of the parties, it is expressly made clear that there are three important phases of a document read in evidence, First stage is tending the document in evidence, it is a stage where the document is produced in Court with a List of documents. Second stage is admitting the document in evidence which is also called as stage of giving exhibits to documents. This stage is the present stage in the proceeding. Second stage is admitting the document in evidence which is also called as stage of giving exhibits to documents. This stage is the present stage in the proceeding. It is governed by the procedure laid down in Paragraph No. 542 (Chapter No. 28) of the Bombay High Court civil Manual. It is settled law that giving exhibits is a ministerial act and it does not dispense with its formal proof. 4. The third stage is stage of appreciation of evidence, It is a much later stage where the matter will be argued for final judgment. Whether a document has a statutory bar form being admissible in evidence whether the document is original (primary evidence) or copy of original and what is the evidential value of secondary evidence, whether the contents of documents are property proved or not and what is the evidential value of each of document are the questions to be decided by the court at the stage of judgment. Evidential value of any of the document cannot be determined at the stage of recording of evidence. 5. At the stage of admitting the documents, a strict procedure is adopted where the non admitted documents are returned to the party as per the procedure in Code of Civil Procedure, 1908, Order 13, Rule 7(2) and para-524 of the Civil Manual. Because, there is no purpose in keeping these documents on record if those cannot be red in evidence. However, only for this reasons, a liberal approach is adopted in admitting the document. If a document is wrong exhibited, still it is in hands of the court to not to rely on it during appreciation of evidence. However, if a document is wrongly rejected, in that case, the same curt or even the appellate court would not be in position to consider the evidence of the said document. Accordingly, following documents are admitted in evidence.” Exhibit No. Serial No. with list of documents Description of document Exhibit 80 List at Exhibit No. 4 Document No. 2. This document is Payment receipt for Rs. 2,25,000/- dated 24.06.1996. Exhibit 81 List at Exhibit No. 4 Document No. 3. This document is Payment receipt for Rs. 40,000. Exhibit 82 List at Exhibit No. 4 Document No. 4. This document is Payment receipt for Rs. 40,000/- dated 29.09.1996. Exhibit 83 List at Exhibit No. 4 Document No. 5. This document is Payment receipt for Rs. 2,25,000/- dated 24.06.1996. Exhibit 81 List at Exhibit No. 4 Document No. 3. This document is Payment receipt for Rs. 40,000. Exhibit 82 List at Exhibit No. 4 Document No. 4. This document is Payment receipt for Rs. 40,000/- dated 29.09.1996. Exhibit 83 List at Exhibit No. 4 Document No. 5. This document is Payment receipt for Rs. 40,000/- dated 03.10.1996. Exhibit 84 List at Exhibit No. 4 Document No. 6. This document is receipt issued S.S. Construction dated 01.05.1999 for Rs. 5,30,000. Exhibit 85 List at Exhibit No. 4 Document No. 7. This document is demand notice dated 10.03.2004 issued by Nagpur Municipal Corporation. Exhibit 86 List at Exhibit No. 4 Document No. 8. This document is office copy of notice issued by Advocate Hamanant R. Kurde address to the defendant No. 1. Exhibit 87 List at Exhibit No. 4 Document No. 9. This document is registered agreement of sale dated 29.11.1999 registered on 03.05.2000 executed between defendant Nos. 1 and 2 with Shyam Gajanan Joshi. Exhibit 88 List at Exhibit No. 4 Document No. 10. This document is the receipt issued by S.V. Joshi for payment of Rs. 45,000/- for cancellation of agreement of sale. Exhibit 89 List at Exhibit No. 4 Document No. 11. This document is the agreement of sale executed by defendant Nos. 1 and 2 with the plaintiff on 20.02.206. Exhibit 90 List at Exhibit No. 4 Document No. 15. This document is the certified copy of Judgment of Hon'ble District Consumer Forum in complaint No. 460/2008 (Remand 193/04) decided on 20.01.2011. Exhibit 91 List at Exhibit No. 4 Document No. 1. This document is the certified copy of sale deed dated 24.02.2011 between defendant Nos. 2 and 3 as first party the defendant No. 1 as second party and Ashok Ramkumar Yadav as party No. 3 registered at Serial No. 1103 dated 25.02.2011. Exhibit 92 List at Exhibit No. 4 Document No. 2. This document is the certified copy of sale deed dated 24.02.2011 between defendant Nos. 2 and 3 as first party the defendant No. 1 as second party and Ashok Ramkumar Yadav as Party No. 3 7. As per the aforesaid reasons, the trial Court marked certain documents as exhibits, while refusing to mark the others. This document is the certified copy of sale deed dated 24.02.2011 between defendant Nos. 2 and 3 as first party the defendant No. 1 as second party and Ashok Ramkumar Yadav as Party No. 3 7. As per the aforesaid reasons, the trial Court marked certain documents as exhibits, while refusing to mark the others. It was directed that the above documents be separated from the marked documents and they were not even admitted or exhibited. A perusal of the above quoted portion of the impugned order dated 19-01-2016 shows, that the procedure to be adopted to mark the documents as exhibits, mandated in the aforesaid Full Bench judgment of this Court was not followed by the trial Court. The trial Court has not only gone ahead to mark exhibits, it has also observed that a liberal approach would be adopted while admitting the documents. It appears that the trial Court has not followed the procedure laid down in Full Bench judgment of this Court and marked exhibits to certain documents while refusing to mark others on the basis that formal evidence of the documents could be given at the stage of evidence. This approach of the trial Court goes against the ratio of the above referred judgment in the case of Hemendra Rasiklal Ghia vs. Subodh Mody (supra), wherein it has been laid down about the classification of documentary evidence vis-a-vis. adjudication thereon into three categories and the manner in which objections could be raised in respect of the said documents. In the first category, objection is required to be raised even before the document is marked as exhibits. Therefore, the exercise of classifying documents and examining as to whether the documents could be at all marked as exhibits was not undertaken. As a result, the grievance of the petitioner appears to be justified that he was deprived of opportunity to raise objection. 8. The learned Counsel appearing for respondent No. 1 has vehemently submitted that the petitioner was not entitled to make any grievance in that regard, because there had been a date before 19-07-2016, when the first impugned order was passed, that is the date of 12-07-2016, when the suit was simplicitor adjourned and the petitioner failed to raise any objection with regard to the documents mat were sought to be placed on record on behalf of the respondent No. 1. According to the learned Counsel for the respondent No. 1, this amounted to waiver of raising objection. 9. In the facts and circumstances of the present case, this Court is of the opinion that no such waiver of objection can be construed. The trial Court passed the first impugned order dated 19-07-2016, on complete misreading of position of law pertaining to the manner in which the documents that were to be accepted and admitted in evidence. The tenor of the reasoning of the trial Court in both the impugned orders appears to be that the petitioner would not suffer prejudice as he could raise objections with regard to the documents at the stage of evidence. The said approach is obviously not in tune with the position of law as laid down by the Full Bench judgment of this Court cited supra. 10. As regards reliance placed by the respondent No. 1 on judgment of the Hon'ble Supreme Court in the case of Rasiklal Manikchand Dhariwal and Another vs. M.S.S. Food Products (supra), there cannot be any quarrel with the proposition that once an affidavit in lieu of evidence is filed under Order 18, Rule 4 of the CPC, it would not be necessary for the witness to enter into witness box to give formal proof thereof. In the present case, the grievance raised by the petitioner is not in respect of the said proposition. The specific grievance of the petitioner is that the trial Court erred in proceeding to mark exhibits and depriving the petitioner of a fair opportunity to raise objections with regard to the said documents. It cannot be disputed that after raising such objections, the trial Court would examine the situation in terms of the aforesaid position of law laid down by the Full Bench of this Court. This Court is of the opinion that such an enquiry was expected from the trial Court before the documents were marked as exhibits. 11. In the light of the above, this Court finds that the impugned orders are unsustainable. Accordingly, this Writ Petition is allowed. The impugned orders are quashed and set aside. The petitioner is directed to place on record objections, if any, that he may have with regard to the documents sought to be placed on record on behalf of the petitioner. In the light of the above, this Court finds that the impugned orders are unsustainable. Accordingly, this Writ Petition is allowed. The impugned orders are quashed and set aside. The petitioner is directed to place on record objections, if any, that he may have with regard to the documents sought to be placed on record on behalf of the petitioner. Upon such objections being raised, the trial Court shall immediately decide the same and proceed with the trial of the suit. 12. Since the suit is pending from the year 2011, the trial Court is directed to dispose of the same expeditiously and in any case within a period of one year from today. 13. The petitioner shall raise objections in respect of the said documents on or before 12-03-2019, when the suit is now listed before the trial Court. 14. Rule made absolute in above terms.