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2023 DIGILAW 925 (MP)

Sunehara Ansari (Smt. ) v. Iftakar Ansari

2023-11-23

GAJENDRA SINGH

body2023
ORDER 1. This Miscellaneous Petition under Article 227 of the Constitution of India has been preferred challenging the order dated 19.10.2023 by 22nd District Judge, Indore in EP No.4 of 2022 whereby the determination of petitioner's objection regarding admissibility of certificate purported to be issued by one Mohd. Ahmad under Section 65-B of Indian Evidence Act, 1872 marked as Exhibit P/24 has been postponed till the final disposal of case. 2. Brief facts of the case are that petitioner was elected as Counsellor of Ward No.60 of Indore Municipal Corporation in public election conducted on 6.7.2022. An election petition challenging the election of petitioner was filed which is pending before the 22nd District Judge, Indore as EP No.4 of 2022. 3. During the course of evidence of respondent No.1(PW-1), proposed certificate issued by one Mohd. Ahmad under Section 65-B of Indian Evidence Act was objected by the petitioner stating that the proposed certificate is not original document but photocopy, so it cannot be admitted as a valid evidence. 4. Objecting to the contentions of petitioner counsel for respondent No.1 urged that the proposed document is original which bears the signatures of Mohd. Ahmad in black ink as well as bears his mobile number. 5. Trial Court allowed the respondent No.1 to exhibit the document as Exhibit-P/24 holding that the respondent No.1 claims the document to be original and the issue of documents being original or photocopy will be decided at the time of disposal of the matter on merit. 6. Counsel for the petitioner challenged the impugned order on the ground that the admissibility is to be decided at the time of raising such objection otherwise right of petitioner for cross-examination of such documents would be prejudiced, therefore, the impugned order is not sustainable and deserves to be quashed. The learned trial Court (Election Tribunal) has committed serious error of law in not taking into consideration the settled position of law that certificate under Section 65-B is certify the secondary evidence and if photocopy is permitted then it would be a secondary evidence of a secondary evidence which is not permissible under the Indian Evidence Act, 1872. Also, considering the facts that the admissibility of Exhibit-P/24 has to be decided at the time of admitting the document, because such kind of objection cannot be permitted to raise after admitting the documents therefore, decision thereupon cannot be postponed. Also, considering the facts that the admissibility of Exhibit-P/24 has to be decided at the time of admitting the document, because such kind of objection cannot be permitted to raise after admitting the documents therefore, decision thereupon cannot be postponed. Order 23 rule 3 of the CPC specifically provides endorsement of the documents after admitted in evidence in the suit but in the present case the learned trial Court without admitting Annexure P/3, in evidence permitted to endorse as Exhibit-P/4 is contrary to law and suffered with serious perversity and illegality hence, impugned order passed on deposition sheet is not sustainable. 7. Learned counsel for the petitioner has relied upon the case of "R.V.E Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P Temple and Another (2003)8 SCC 752 " and "Hemendra Rasiklal Ghia, etc, v. Subodh Mody, etc. 2008(5) CTC 577". Relevant para 20 of the judgment in "R.V.E Venkatacrhala Gounder v. Arulmigu Vishwesaraswami & V.P Temple and Another (2003)8 SCC 752 " is as follows:- "The learned counsel for the defendant-respondent has relied on Roman Catholic Mission v. State of Madras in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do no have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of the 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 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 before 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 later 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. 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 later 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 superior Court." 8. In the case of "Hemendra Rasiklal Ghia, etc, v. Subodh Mody, etc. 2008(5) CTC 577" relevant paras of the judgment are as follows:- 59. In the first case, acquiescence would be no bar to raising the objection in superior Court." 8. In the case of "Hemendra Rasiklal Ghia, etc, v. Subodh Mody, etc. 2008(5) CTC 577" relevant paras of the judgment are as follows:- 59. The resolution of this question cannot be without considering the provisions of Order XIII rule 3 which requires the Court to reject any document it considers irrelevant or otherwise inadmissible recording grounds of such rejection. Rule 4 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. Rule 6 contemplates endorsements on the documents rejected as inadmissible in evidence. An objection to the admissibility of the document should be raised before 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.' 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; and (iii) the objection that the document which is sought to be proved is ab initio inadmissible in evidence.' 75. If the objection to the proof of document is not decided and the document is taken on record giving tentative cross-examiner exhibit, is then seriously the 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 v. M/s Juggilal Kamlapat, 1971(1) SCC 477 . If the cross-examiner decides not to cross-examine based on unexhibited 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. 78. It may be observed that sometimes in the case of second category, evidence can be received to objection in anticipation of other evidence, which, subject if produced, will remove the objection. In such cases, postponed a final decision on the objection to a later stage but, at any rate, it can must be be decided before the court proceeds to judgment. Omission in this respect is likely to prejudice the party producing the evidence by letting the matter remain in a dubious state and then depriving the party tendering the evidence of an opportunity of making up the defects which in many cases he would be ready to do if he is told that the objection is allowed as observed hereinbefore.' 9. The proposed certificate Exhibit-P/24 falls within category which can be received subject to objection in anticipation of other evidence, which if produced, will remove the objection. In this matter final decision can be postponed to a later stage but, at any rate it must be decided before the Court proceeds to judgment more preferably after closing the evidence of the respondent No.1/petitioner before the 22nd District Judge, Indore. This will safe-guard interest of both the parties if the documents is held to be admissible and proved, then, the cross-examiner would be entitled for further opportunity to cross-examine based on their documents. On the contrary the petitioner tendering the evidence will not be deprived opportunity of making defects if objection is allowed. 10. In the light of the above, the matter doesn't require stay of proceedings pending before the 22nd District Judge, Indore but would be in the interest of both the parties that determination of trial Court regarding objection of petitioner recorded at the end of para 25 be modified as under:- “Document (proposed by petitioner as Exhibit-P/24) is photocopy or original will be decided before proceeding to judgment and most preferably just after recording of evidence of respondent No.1 of this petition who is petitioner before the trial Court.” 11. With the aforesaid, this petition is disposed of.