Research › Search › Judgment

Telangana High Court · body

2020 DIGILAW 485 (TS)

Paramita Dutta v. Debkalyan Roy

2020-06-15

A.RAJASEKHAR REDDY

body2020
ORDER : 1. This civil revision petition is filed against order dated 5.12.2019 wherein and whereby the Court below dismissed the application filed in IA No. 2123 of 2019 in FCOP No. 742 of 2017 under Order 13 Rule 3 CPC by the petitioner/respondent praying to demark the documents that were marked under Exs.P3 to P24 on behalf of the respondent/petitioner. 2. Heard Sri. C.N. Moorty, learned Counsel for the petitioner and Smt. Anita Ahuja, learned Counsel for the respondent. 3. Sri. C.N. Moorty, learned Counsel for the petitioner submits that the documents that were marked in the absence of the petitioner are photocopies of documents, which are irrelevant and inadmissible, but yet they are marked, which is not in accordance with law. When an application is filed by the petitioner for demarking, without considering the purport of Order 13 Rule 3 CPC, the Court below erroneously dismissed the application. In support of his contention, he relied on the judgment reported in Sure Ranga Murali Krishna Reddy vs. Sure Yerri Vara Prasada Reddy, 2018 (5) ALD 396 . 4. On the other hand, Smt. Anita Ahuja, learned Counsel appearing for the respondent submits that the documents were marked very much in the presence of the petitioner's Counsel. She submits that after long gap, the present application is filed, which is not maintainable. She also submits that the strict rules of evidence under Indian Evidence Act have no application to the proceedings before the Family Courts under Family Courts Act, 1984 (for short ‘the Act of 1984’) and Sections 14 and 20 of the Act gives power to Family Court to admit any document notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any law other than this Act. She also submits that all the documents except marriage card, are printouts of e-mails and WhatsApp conversations, In support of her contentions, she relied on the judgments reported in Nawab Mir Barkat Ali Khan Waleshan Bahadur vs. Princes Manolya Jah, 2018 (4) ALD 204 (DB), The Land Acquisition Officer, Vijayawada Thermal Station vs. Nutalapati Venkata Rao, AIR 1991 AP 31 and R.V.E. Venkatachala Gounder vs. Arulmigu Visweswaraswami and V.P. Temple, 2004 (1) ALD 18 (SC) : AIR 2003 SC 4548 : (2003) 8 SCC 752 . 5. 5. In this case, it is to be seen that the affidavit filed in support of the application before the Court below does not state that the documents are marked in the absence of Counsel for the petitioner. Sub-Section (3) of Section 10 of the Act of 1984 provides that nothing in sub-section (1) or sub-section (2) of Section 10 shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other. 6. Likewise, Section 14 of the Act provides that a Family Court may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872. 7. Section 15 of the Act provides that in suits or proceedings before a Family Court, it shall not be necessary to record the evidence of witnesses at length, but the Judge, as the examination of each witness proceeds, shall, record or cause to be recorded, a memorandum of the substance of what the witness deposes, and such memorandum shall be signed by the witness and the Judge and shall form part of the record. 8. Section 16 of the Act provides that (1) the evidence of any person where such evidence is of a formal character, may be given by affidavit and may, subject to all just exceptions, be read in evidence in any suit or proceeding before a Family Court and (2) The Family Court may, if it thinks fit, and shall, on the application of any of the parties to the suit or proceeding summon and examine any such person as to the facts contained in his affidavit. 9. Section 20 of the Act provides that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. 10. 9. Section 20 of the Act provides that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. 10. From the above, it is clear that the Family Courts have been given ample discretion in receiving the documents, whether they are admissible or inadmissible, as such, the judgment rendered by interpreting other enactments have no application when it comes to the proceedings before the Family Court, which gives ample powers to follow the procedure bypassing the procedure envisaged under the Evidence Act. 11. Clause (c) of Section 21 of Hindu Marriage Act, 1955 provides that notwithstanding anything in any enactment to the contrary, no document shall be inadmissible in evidence in any proceeding at the trial of a petition under this Act on the ground that it is not duly stamped or registered. 12. The Indian Evidence Act is not made applicable in a mechanical manner. The discretion is vested with the Family Court to receive any evidence, any report, any relevant statement, documents, information etc., which is necessary for its assistance to deal effectually with the dispute. It is needless to mention that the Family Court is bound to function as per the enabling provisions and the statute under Section 20 of the Family Court Act by which it was created. The overriding effect given to the Family Courts under Section 20 of the Family Court Act is confined not only to the Code of Civil Procedure, but also to other enactments. It is always the duty of the Court to give such construction to a statute as would promote the purpose or object of the Act. Nawab Mir Barkat Ali Khan Waleshan Bahadur vs. Princess Manolya Jah (supra). 13. Order 13 Rule 4 CPC provides for every document admitted in evidence in the suit being endorsed by or on behalf of the Court, which endorsement signed or initialed by the Judge amounts to admission of the document in evidence. An objection to the admissibility of the document should 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 as admitted or not admitted in evidence. An objection to the admissibility of the document should 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 as admitted or not admitted in evidence. In the latter case, the document may be returned by the Court to the person from whose custody it was produced. R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami and V.P. Temple (supra). 14. The Trial Court in Paragraph 8 of the order clearly stated that the documents, which are sought to be marked are whatsapp conversations, copies of e-mails, printouts of e-mails and other linked-in profiles, for which the petitioner has produced certificate under Section 65-B of Evidence Act under Ex.P25 and the documents are received subject to proof and relevancy, in view of compliance of Section 65-B of Indian Evidence Act. The said fact is not disputed by the learned Counsel for the petitioner herein. The Court below also relied on the judgment in The Land Acquisition Officer, Vijayawada Thermal Station vs. Nutalapati Venkat Rao (supra), wherein it is held that the mode of proof of a document is a matter of procedure while its admissibility is a matter of substantive law. If the objection is as to the admissibility of the document, then mere marking of the document does not preclude any objection being raised later as to its admissibility. But, so far as the mode of proof is concerned, if an objection as to mode is not raised when the document is marked, the objection cannot be raised at any subsequent stage. If secondary evidence is allowed to be marked, without objection at the trial, no objection can be permitted to be raised by the opposite party at a later stage. 15. In view of principles laid down in the aforesaid judgments, the documents are merely marked and proof and relevancy can be gone into trial at the time of considering the main original petition. The Trial Court has given cogent reasons for dismissing the application. 16. The Trial Court while relying on the judgment reported in Sure Ranga Murali Krishna Reddy vs. Sure Yerri Vara Prasada Reddy (supra), distinguished the same on facts. The Trial Court has given cogent reasons for dismissing the application. 16. The Trial Court while relying on the judgment reported in Sure Ranga Murali Krishna Reddy vs. Sure Yerri Vara Prasada Reddy (supra), distinguished the same on facts. In the said judgment, the objection was not only with regard to the mere sufficiency or otherwise of the stamp duty payable on the original partition deed but also, with regard to non-registration of the original partition deed. It was further held that an objection with regard to admissibility of an unregistered document, which is compulsorily registerable, can be raised at any stage of the matter, even though such document is marked as an exhibit inadvertently and without application of mind. But in the present case, the facts are otherwise, as such, the said decision will not come to the rescue of the petitioner. Apart from that, present proceedings arise from Family Courts Act and Hindu Marriage Act, where non-obstante clauses are provided overriding provisions of other enactments. 17. In view of above facts and circumstances, I do not see any infirmity in the impugned order warranting interference by exercising power under Article 227 of the Constitution of India. 18. Accordingly, the civil revision petition is dismissed. There shall be no order as to costs. Interim order granted earlier shall stands vacated. As a sequel thereto, miscellaneous petitions, if any, pending in this civil revision petition, shall stands closed.