ORDER 13 RULE 4, ORDER 18 RULE 4–In the affidavit, the plaintiff marked the suit document as per Ex.P.1. The learned Trial Judge took the said affidavit as oral evidence by way of examination-in-chief of the plaintiff. Further, in the order sheet it is stated that
the documents exhibits P1 to P4 or marked and then the case was posted for cross-examination of PW1. Defendant made an application for recalling the earlier order marking the said document. The said application is purported to be under Section 34 of the Karnataka Stamp Act read with Section 151 of CPC requesting the Court to hear the admissibility of the document Ex.P1. The learned Trial allowed the said application filed by the defendant. The correctness and the legality of the same questioned in this case .
Held:
The plaintiff has not entered the witness box to tender the disputed document in the examination-in-chief. The learned Trial Judge while accepting the affidavit acting on the contents of the affidavit, has marked the said documents. Thus preventing the defendant an opportunity to raise objections regarding the admissibility of the said document, thus taking away a valuably right accrued to him under Section 34 and 35 of the Karnataka
Stamp Act. When the fact is brought to the notice of the Court, realizing the mistake, the Court in its discretion thought it fit to recall the said order in order to do justice between the parties, which cannot be found fault with.
(B) EVIDENCE – Difference between marking and admitting a document–Held–Marking of a document is a ministerial act whereas, admitting a document in evidence is a judicial Act, Before a document is let in evidence, there should be a judicial determination of question whether it can be admitted in evidence or not. In other words, the Court admitting a document must have applied its mind consciously to the question whether the document was admissible or not.
(C) CIVIL PROCEDURE CODE, 1908 (CENTRAL ACT NO. 5/1908) – ORDER 13 RULE 4(1)–Prescribes that there shall be an endorsement on every document which has been admitted in evidence in the suit–Can such endorsement be considered sufficient to hold that the document has been admitted. Held–The endorsement shall be signed and initiated by the Judge. The document lacking the last requirement cannot be said to be admitted in evidence. The mere fact that the endorsement on the document as required under Order 13 Rule 4 CPC has been made should not in every case be considered sufficient to hold that the document has been admitted.
Placing the Judge’s initials on a document by a third person by means of a rubber stamp cannot amount to initialing by the judge.
(D) CIVIL PROCEDURE CODE, 1908 (CENTRAL ACT NO. 5/1908) – Meaning of production of document, admitting the said document in evidence, marking of the said document which is admitted in evidence and proof of such document. Held–At the time of admitting the document
in evidence it is open to the opposite party to raise objection regarding the admissibility of the document and if objections are raised, the Court is under an obligation to decide the said objection. It is after the said objection is decided by the Court and if it decides to receive the document in evidence, the said document is marked for the purpose of identification. Thereafter the proof of said document would arise. After the evidence is adduced or the final hearing, it is open to the parties to address arguments regarding the admissibility of the document, to the relevancy of the document and proof of said document and the Court will decide all these questions in the course of its judgment. (Para 13)
(E) CIVIL PROCEDURE CODE, 1908 (AMENDMENT ACT OF 1999 AND 2002) – Proper procedure to be followed by Courts in respect to examination-in-chief and production and marking of documents and in respect of affidavit evidence. Held: a) When the case is posted for evidence, the examination-in-chief of a witness shall be on affidavit unless ordered otherwise.
b) When the affidavit is sought to be filed on the date the case is posted for evidence, the Court should insist that the witness whose affidavit is sought to be filed enters the witness box, takes oath and thereafter he/she shall handover the affidavit containing his/her examination-in-chief to the Court. In other words, the Court should not receive the affidavit containing the examination-in-chief of a witness by his/her Counsel, thus preventing the possibility of the witness disowning such affidavit.
c) After the affidavit is received through the witness, the Court shall call upon the witness whether he/she has any documentary evidence to tender and if the witness tenders any documentary evidence, the same shall be received by the Court subject to objection raised by the opposite party,
d) If objections are raised, the Court should judicially determine the question whether it can be admitted in evidence or not, then and thereof if the objection relates to insufficiency of stamp duty. If the objection is on any other ground, the Court shall follow the procedure as laid down in the case of K. Anjaneya Setty v. K.H. Ranganath Setty reported in ILR 2002 Karnataka 3613.
e) If the Court decides to admit the document, than it shall
follow the procedure prescribed under Order 13 Rule 4(1) CPC and mark the document.
Writ petition is rejected
ORDER
Kumar, J.
1. The petitioner-plaintiff has filed a suit in O.S. No. 56/2001 on the file of the Principal Civil Judge (Senior Division), Bagalkot, against the respondent – defendant for recovery of a sum of Rs. 1,24,500/- with costs etc. The respondent-defendant has filed written statement contesting the said plaint. After framing of the issues when the case was posted for evidence, the petitioner-plaintiff has filed his affidavit by way of examination-in-chief and in the affidavit itself he marked the suit document as per Ex.P1. The learned Trial Judge, on 3.2.2003, took the said affidavit as oral evidence by way of examination-in-chief of the plaintiff. Further, in the order sheet it is stated that the documents Ex.P.1 to P4 are marked and then the case was posted for cross-examination of PW-1 to 10.2.2003. Thereafter the defendant has made an application for recalling the order dated 3.2.2003 marking the said document. The said application is purported to be under Section 34 of the Karnataka Stamp Act read with Section 151 of the Code of Civil Procedure requesting the Court to hear the admissibility of the document Ex.P.1. The said application was opposed by the petitioner contending that in view of the mandatory requirement of Section 35 of the Karnataka Stamp Act, once a document is admitted in evidence, thereafter it is not to be questioned either in very same proceedings or in the higher Courts, the objection regarding marking of the document. The learned Trial Judge after considering the rival contentions, held that before a document is marked in evidence, witness was to be put in the witness box for getting the documents marked on his behalf so that there would be an opportunity to other side to object for marking of the said document on the question of admissibility, and in the instant case, the Court itself has marked the said document without giving an opportunity to the other side to put forth their objections as regards admissibility of the document and therefore the Court allowed the said application thereby keeping the question of admissibility to be heard and decided after hearing the defendant in the suit. Aggrieved by the said order, the present Writ Petition is filed.
2. Learned Counsel for the petitioner contends that once a document has been admitted in evidence, the same shall not be questioned at any stage in the same suit and in the other proceedings. When once the defendant has no objection for marking of the document by the Court, it is not open to the defendant to seek permission to raise objection after it is marked. Therefore, he submits that the impugned order is liable to be quashed. Secondly, he contended that in view of the law declared by this Court in the case of K. ANJANEYA SETTY v. K.H. RANGAIAH SETTY, ILR 2002 KARNATAKA 3613 the question of marking of the said document can be considered at the time of final disposal and therefore the question considering the admissibility of the document would not arise. Seen from any angle, it is liable to be quashed.
3. Section 35 of the Karnataka Stamp Act, 1957, reads as under:-
Section 35: Admission of instrument where not to be questioned :- Where an instrument has been admitted in evidence such admission shall not, except as provided in Section 58, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.”
4. A reading of the aforesaid section makes it very clear that where an instrument is admitted in evidence, thereafter the same shall not be questioned at any stage of the proceedings. But if the document is not admitted in evidence in a manner known to law, Section 35 of the Act has no application. The learned Trial Judge in the instant case has recalled the earlier order on the ground that the document is not admitted in evidence in accordance with law.
5. Learned Counsel for the petitioner contends that in view of the amendment to code of Civil Procedure brought in the years 1999 and 2002, providing for evidence in examination-in-chief shall be on affidavit, when the documents are marked in the affidavit and on the basis the Court marks the documents, the procedure prescribed under law is complied with and it cannot be found fault with. Therefore, the finding recorded by the Court below that the Court has not followed the procedure prescribed under law is not correct.
6. Therefore, it is necessary to find out, after the amendment to the Code of Civil Procedure in 1999 and 2002 is there any change in the law regarding marking of the document in a proceeding, and what is the procedure to be followed by the Courts before or after marking a document in evidence,
7. Sub-rule (1) of Rule 4 of Order XVIII reads as under:-
“(1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence.
Provided that where documents are filed and parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court.”
8. A reading of the aforesaid provision makes it very clear that after the amendment in every case, the examination-in-chief of a witness shall be on affidavit. Examination-in-chief is confined to facts in issue or facts relevant to the issue. The facts to be deposed must be within the personal knowledge and recollection of the witness. Hearsay is ordinarily excluded. Oral evidence should be direct. As to documents the witness be asked about the execution and identity, but not about their contents which must be proved by production of documents. Oral evidence as to the contents of the documents is not admissible. The examination-in-chief by way of an affidavit is a substitute for only oral evidence and it cannot be a substitute for documentary evidence.
9. Where documents are filed and parties rely upon the documents, the proof or admissibility of such documents which are filed along with the affidavit shall be subject to the orders of the Court. Documentary evidence cannot be the subject matter of an affidavit. If a party relies on documentary evidence in addition to oral evidence he is expected to file the said documents either along with the pleadings or along with the affidavit containing the oral evidence. After they are produced into Court, if the party producing the same wants to rely on the said documents as evidence in the case, he has to tender the said documents in evidence. For tendering the said documents the witness has to necessarily enter the witness box. After taking oath, he has to tender those documents as documentary evidence in the case. When the documents are tendered in evidence, the opposite party has to be alert and if he has any objection for the said document being received in evidence should raise the objection. If the objection relates to insufficiency of stamp duty on the said document, the Court is under a legal obligation to decide the question of sufficiency of stamp duty then and there itself. If the Court holds that the document is insufficiently stamped, a statutory obligation is cast upon the Court to impound the document and pass appropriate orders for collection of deficit stamp duty and penalty on the said insufficiently stamped document. If the Court holds that the document is sufficiently stamped, then the Court, over-ruling the objections, has to admit the said document in evidence. The aggrieved person has a right to challenge the said order.
10. After the Court decides to receive the document in evidence then the document is marked in evidence in proof of the said document being admitted in evidence and also for the purpose of identification. If the objection regarding admissibility of the document is on any other ground, the said document is to be admitted in evidence subject to the objection and the document marked and the question of admissibility to be decided by the Court at the time of deciding the case on merits.
11. Marking of a document is a ministerial act whereas, admitting a document in evidence is a judicial act. Before a document is let in evidence, there should be a judicial determination of question wherever it can be admitted in evidence or not. In other words, the Court admitting a document must have applied its mind consciously to the question whether the document was admissible or not.
12. Order 13, Rule 4(1) of the CPC prescribes that there shall be endorsed on every document which has been admitted in evidence in the suit, the number and title of the suit, the name of the person producing the document, the date on which it was produced and a statement of its having been so admitted. The endorsement shall be signed and initialled by the Judge. The document lacking the last requirement cannot be said to be admitted in evidence. The mere fact that the endorsement on the document as required under Order 13 Rule 4 CPC has been made should not in every case be considered sufficient to hold that the document has been admitted. Placing the Judge’s initials on a document by a third person by means of a rubber stamp cannot amount to initialling by the Judge.
13. The production of document, admitting the said document produced in evidence marking of said document which is admitted in evidence and proof of such document have distinct connotation in the eye of law. At the time of admitting the document in evidence, it is open to the opposite party to raise objection regarding the admissibility of the document and if objections are raised, the Court is under an obligation to decide the said objection. It is after the said objection is decided by the Court and if it decides to receive the document in evidence, the said document is marked for the purpose of identification. Thereafter the proof of said document would arise. After the evidence is adduced at the final hearing, it is open to the parties to address arguments regarding the admissibility of the document, to the relevancy of the document and proof of said document and the Court will decide all these questions in the course of its judgment.
14. Even if in the affidavit filed by way of examination -in-chief, the defendant is referring to the document on which he relies on and has given an Exhibit number to the said document, the same has to be ignored by the Court and the witness should be called upon to enter the witness box and if he wants to rely on the said documents, to tender the said documents in evidence, before the Court.
15. Therefore, the proper procedure to be followed by the Courts after the amendment of the Code of Civil Procedure would be as under:
a) When the case is posted for evidence, the examination-in-chief of a witness shall be on affidavit unless ordered otherwise;
b) When the affidavit is sought to be filed on the date the case is posted for evidence, the Court should insist that the witness whose affidavit is sought to be filed enters the witness box, takes oath and thereafter he/she shall hand over the affidavit containing his/her examination-in-chief to the Court. In other words, the Court should not receive the affidavit containing the examination-in-chief of a witness by his/her Counsel, thus preventing the possibility of the witness disowning such affidavit;
c) After the affidavit is received through the witness, the Court shall call upon the witness whether he/she has any documentary evidence to tender and if the witness tenders any documentary evidence, the same shall be received by the Court subject to objection raised by the opposite party;
d) If objections are raised, the Court should judicially determine the question whether it can be admitted in evidence or not, then and there if the objection relates to insufficiency of stamp duty. If the objection is on any other ground, the Court shall follow the procedure as laid down in the case of K. ANJANEYA SETTY v. K.H. RANGANATH SETTY.
e) If the Court decides to admit the document, then it shall follow the procedure prescribed under Order XIII Rule 4(1) CPC and mark the document.
16. Admittedly, in the instant case, as rightly observed by the learned Trial Judge, the plaintiff has not entered the witness box to tender the disputed document in the examination-in-chief. These documents are marked as per Ex.P1 to P4. The learned Trial Judge while accepting the affidavit acting on the contents of the affidavit, has marked the said documents thus preventing the defendant an opportunity to raise objections regarding the admissibility of the said document, thus taking away a valuable right accrued to him under Sections 34 and 35 of the Karnataka Stamp Act. When this fact is brought to the notice of the Court, realising the mistake, the Court in its discretion thought it fit to recall the said order in order to do justice between the parties, which cannot be found fault with. Under these circumstances, I do not find any infirmity in the impugned order, which calls for interference. Accordingly, the Writ Petition is rejected.
17. Let a copy of the order be sent to all the subordinate Courts in the State of Karnataka.