IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 5577 of 2009
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Lal Singh Rajpal ... Petitioner
Versus
Raj Kapil Singh & anr. ... Respondents
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CORAM: HON'BLE MR. JUSTICE D.N.PATEL
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For the petitioner : Mr. Amit Kr. Das, Advocate
For the respondent no.1 : Mr. Rajesh Kumar, Advocate
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Order No. 02: Dated 26th April, 2011
Per D.N.Patel, J.
1. The present writ petition has been preferred against an order, passed by the
learned Additional District Judge, Fast Tack Court No. I, Dhanbad, dated 9th
November, 2009 in Title Appeal No. 33 of 2007, whereby, the application
preferred by the present petitioner (appellant in Title Appeal No. 33 of 2007) for
giving Exhibit number to a document, which is rent agreement and which was
presented by the original defendant in Title (Eviction) Suit No. 13 of 2004, has
been rejected.
2. I have heard learned counsel for the petitioner, who has submitted that as
per the order passed by the lower appellate court dated 25th July, 2008, both the
parties are admitting the said document and, as such, the application preferred by
the present petitioner, who is appellant in Title Appeal No. 33 of 2007, ought to
have been allowed and the rent agreement, presented by the original defendant in
Title (Eviction) Suit No. 13 of 2004, ought to have been given Exhibit number
and whatever may be the objection of the respondent in Title Appeal No. 33 of
2007 would have been considered by the learned lower appellate court at the time
of final hearing of Title Appeal No. 33 of 2007. Learned counsel for petitioner has
relied upon a decision rendered by the Hon’ble Apex Court in the case of Bipin
Shantilal Panchal Vs. State of Gujarat & anr., as reported in (2001)3 SCC 1.
3. Learned counsel for the respondents submitted that the document, in
question, cannot be given Exhibit number, because a secondary evidence, which is
not a original one being photo copy of the land agreement, cannot be given
Exhibit number and that too at a belated stage and, therefore, rightly it has been
marked ‘X’ for identification and has been kept for hearing along with Title
Appeal No. 33 of 2007.
2.
4. Having herd learned counsel for both the sides and looking to the facts and
circumstances of the case, I hereby quash and set aside the impugned order dated
9th November, 2009, passed by the learned Additional District Judge, F.T.C.-I,
Dhanbad, in Title Appeal No. 33 of 2007, mainly for the following facts and
reasons:
(I) The present petitioner was the original plaintiff, who had
instituted Title (Eviction) Suit No. 13 of 2004 before the trial court. The
said suit was dismissed and the Title Appeal No. 33 of 2007 has been
instituted by the original plaintiff/petitioner.(II) It appears that the rent agreement, entered into between the
parties to the suit, was already presented by the original defendant in Title
(Eviction) Suit No. 13 of 2004. The defendant’s witness no.1 has also
referred the said rent agreement in his deposition. Thus, the said rent
agreement ought to have been given Exhibit number, but the learned
appellate court has not given Exhibit number to it and, therefore, the need
arose for the present petitioner/appellant to prefer an application to given
Exhibit number to a rent agreement, which was presented by the defendant
and referred to by the defendant’s witness no.1 in his deposition.(III) Looking to the nature of the document, it appears that the said
document ought to have been given Exhibit number, as it affects the very
root of the case. It appears that there are some objections for grant of
Exhibit number to the said document by the original defendant or the
present respondent.(IV) It has been held by the Hon’ble Supreme Court in the case of
Bipin Shantilal Panchal Vs. State of Gujarat & anr., as reported in
(2001)3 SCC 1, paragraph nos. 13 and 14 whereof, reads as under:“13. It is an archaic practice that during the evidence-collecting
stage, whenever any objection is raised regarding admissibility of any
material in evidence the court does not proceed further without
passing order on such objection. But the fallout of the above practice
is that: 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 re-
canvassed, 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 bed recast
3.
or remoulded to give way for better substitutes which would help
acceleration of trial proceedings.14. When so recast, the practice which can be a better substitute is
this: Whenever an objection is raised during evidence-taking stage
regarding the admissibility of any material or item of oral evidence the
trial court can make a note of such objection and mark the objected
document tentatively 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.)”
(Emphasis Supplied)
Thus, whenever there is any objection raised by any of the parties
for grant of Exhibit number, it has been provided by the Hon’ble Supreme
Court that the document ought to be given Exhibit number by recording the
objections and the objections are to be considered at the time of final
hearing of the proceeding.
(V) In view of the aforesaid decision, an error apparent on the
face of the record has been committed by the learned lower appellate court.
The document ought to have been given the Exhibit number, objections
raised by the original defendant or the respondent in Title Appeal No. 33 of
2007 ought to have been recorded and considered by the lower appellate
court at the time of final hearing of Title Appeal No. 33 of 2007.
(VI) One thing ought to have been kept in mind by the lower
appellate court that giving Exhibit mark/number to a document does not
amount that the said document becomes a conclusive piece of evidence.
The evidenciary value of a document depends upon the totality of the
evidences on record and it may happen that a document, which is given
Exhibit number, may not have any evidenciary value, looking to the other
evidences on record, adduced by the parties to the litigation and, therefore,
Exhibit number ought to have been given to the rent agreement, as stated
by the petitioner before the lower appellate court by adopting the method,
which has been suggested in the aforesaid paragraphs of the decision,
rendered by the Hon’ble Supreme Court.
5. As a cumulative effect of the aforesaid facts, reasons and judicial
pronouncement, I hereby quash and set aside the order dated 9th November, 2009,
passed by the learned Additional District Judge, Fast Track Court No. I, Dhanbad,
in Title Appeal No. 33 of 2007 and I hereby direct the lower appellate court to
4.
give Exhibit number to the rent agreement, presented by the original defendant,
and the objections raised by the original defendant/respondent in Title Appeal No.
33 of 2007 will be considered at the time of final hearing of the Title Appeal.
6. This writ petition is, accordingly, allowed and disposed of.
( D.N. Patel, J. )
A.K.Verma/