SCA/5677/2007 of BABUBHAI PREMABHAI PATEL Vs BHANUBEN WD/O GOSHABHAI PREMABHAI on 30 December 2008

ORAL JUDGMENT

1. Heard Mr.Variava, learned Advocate for the petitioner and respondent No.1- Banuben Wd/o Goshabhai Premabhai in person for final hearing.

2. By way of this petition under Article 227 of the Constitution of India, the petitioner – original plaintiff has prayed for an appropriate Writ, direction and /or order quashing and setting aside the impugned order dated 19.01.2007 passed by the learned 6[th] Additional Senior Civil Judge, Navsari below Exh.166 in Regular Civil Suit No.169 of 2002 by which the learned trial Court has not exhibited some of the documents produced along with application at Exh.131. It appears that the petitioner produced certain documents along with application Exh.166 and requested the learned trial Court to take them on record and give exhibit numbers. However, on the objection raised by the respondent herein – original defendant to the effect that some of documents are required to be compulsorily registered, are not registered and therefore, same are inadmissible in evidence and therefore, they cannot be considered and/or accepted and/or taken on record and consequently they are not required to be given exhibit number. Accepting the same, the learned trial Court by impugned order dated 19.01.2007 did not accept / take on record some of the documents and did not give them exhibit number. Being aggrieved and dissatisfied with the impugned order passed by the learned trial Court, the petitioner has preferred present Special Civil Application under Article 227 of the Constitution of India.

3. Mr.R.E.Variava, learned Advocate for the petitioner – original plaintiff has heavily relied

upon the decision of the Hon'ble Supreme Court in the case of Bipin Shantilal Panchal v/s. State of Gujaratand Anr.reported in AIR 2001 SC 1158as well as decision of this Court in Special Civil Application No.971 of 2006 by submitting that keeping all the questions open with respect to admissibility of the documents, the learned trial Court to have atleast given tentative exhibit number keeping all the questions with respect to maintainability and/or admissibility of the documents open, to be considered at the time of trial. Respondent No.1 party-in-person has submitted that documents which are sought to be exhibited and/or which are sought to be produced on record are inadmissible in evidence and therefore, the petitioner may not be permitted to place on record documents which are otherwise inadmissible in evidence. Therefore, it is submitted that the learned trial Court has not committed any error in dismissing the application Exh.166.

4. Heard Mr.Vairiava, learned Advocate for the petitioner and respondent No.1- Party-in-person in person.

5. The petitioner – original plaintiff has instituted Regular Civil Suit No.169 of 2002 for declaration and permanent injunction stating that suit property are ownership of the petitioner. In the said suit the petitioner gave list of documents at Exh.131 producing documents Mark 131/1 to 131/11 and objections being taken by respondents herein –

original defendants and documents produced vide mark 131/6 to 131/11 are not exhibited. It appears from the facts of the case that as the objections were raised before giving exhibit numbers by the original defendants, said objections could have been deferred while giving tentative exhibit numbers to the aforesaid documents. It was not obligatory on the part of the learned trial Court to decide objections, against grant of exhibit numbers, as an interim order. The learned trial Court ought not to have entered into controversy about giving exhibit numbers to the aforesaid documents. It ought to have recorded the objections as they are, raised by the respondents. This has been narrated by the Hon'ble Supreme Court in the case of Bipin Shantilal Panchal(supra)especially in para 11 to 14, which reads as under :

“11. We are compelled to say that the trial Judge should have shown more sensitivity by adopting all measures to accelerate the trial procedure in order to reach its finish within the time frame indicated by this Court in the order dated 31-3-2000 since he knew very well that under his orders an accused is continuing in jail as an under trial for a record period of more than seven years. Now, we feel that the Additional Judge, whether the present incumbent or his predecessor, was not serious in complying with the directions issued by this Court, though the parties in the case have also contributed their share in bypassing the said direction.

12. As pointed out earlier, on different occasions the trial Judge has chosen to decide questions of admissibility of documents or other items of evidence, as and when objections thereto were raised and then detailed orders were passed either upholding or overruling such objections. The worse part is that after passing the orders the trial Court waited for days and weeks for the parties concerned to go before the higher courts for the purpose of challenging such interlocutory orders.

13. It is an archaic practice that during the evidence-collectingstage,wheneverany 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 the 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.

14. When so recast, the practice which can be abetter substitute is this: Whenever an objection-is raised during evidencetaking stage regardingthe admissibility of any material or item oforal evidence the trial Court can make a note ofsuch objection and mark the objected documenttentatively as an exhibit in the case (or record the objected part of the oral evidence) subject

to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.)”

6. In the facts and circumstances of the case the learned trial Court to have adopted the procedure as stated herein above and ought to have given tentative exhibit numbers to the documents produced at Mark 131/6 to 131/11.

7. For the reasons stated above, present Special Civil Application is allowed. Impugned order passed by the learned trial Court is hereby quashed and set aside. Aforesaid document produced vide Mark 131/6 to 131/11 produced along with list of documents at Exh.131 shall be given tentative exhibit numbers by the learned trial Court. The objections raised by the respondents herein – original defendants shall remain intact as it is, which shall be taken care at the time of final hearing of the suit. All the objections may be taken care at the time of final hearing of the suit including that of relevancy and admissibility of the aforesaid documents. Rule is made absolute accordingly. There shall be no order as to costs.

8. Considering the fact that the suit is of the year 2002, the learned trial Court is directed to decide and dispose of the Suit at the earliest but not later than 31[st] December, 2009. all concerned are directed to cooperate the learned trial Court in early disposal of the Suit.

[M.R.Shah,J.]

satish