Sunday, 17 December 2017

Leading judgment on exhibition of documents

 The question presented in these cases require us to resolve two conflicting lines of precedents on the one hand, as the Court stress that "it is necessary for Court to decide about admissibility of documents before they are exhibited in evidence". On the other, some of the learned Judges of this Court have no less categorically said that admissibility of evidence and proof of document should be reserved until judgment in the case is given.
In view of the above analysis of the statutory provisions and our discussion, we, accordingly, articulate our conclusions as follows:
Answer to Question-A :
As already noticed, (i) objection to the document sought to be produced relating to
the deficiency of stamp duty must be taken
when the document is tendered in evidence and such objection must be judicially 
determined before it is marked as exhibit;
(ii) Objection relating to the proof of document of which admissibility is not in dispute must be taken and judicially determined when it is marked as exhibit;
(iii) Objection to the document which in itself is inadmissible in evidence can be admitted at any stage of the suit reserving decision on question until final
judgment in the case.
The Court trying the suit or proceedings as far as possible is expected to decide the admissibility or proof of document as indicated hereinabove. As we have already added a word caution that while exercising discretion judiciously for the advancement of the cause of justice for the reasons to be recorded, the Court can always work out its own modality depending upon the peculiar facts of each case without causing prejudice to the rights of the parties to meet the ends of justice and not to give the handle to either of the parties to protract litigation. The aim should always be to prevent 
miscarriage of justice and expedite trial, which is the dire need of the time.
Answer to Question-B :
The objection to the admissibility or relevancy of evidence contained in the affidavit of evidence filed under Order XVIII Rule 4 of C.P.C. can be admitted at any stage reserving its resolution until final judgment in the case as held in Ameer Trading Corpn. Ltd. v. Shapoorji Data Processing Ltd. (supra).

Bombay High Court
Mr.Hemendra Rasiklal Ghia vs Subodh Mody on 16 October, 2008
Bench: V.C. Daga, P.V. Kakade


DATED: 16th October 2008.
Citation;2008 (6)MH L J (FB)886
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Whether documents once exhibited can be de-exhibited?

I have also perused the material on record. It is
settled position in law that once the documents are marked
as Exhibits, they cannot be de­exhibited.  At the same time,
while deciding the suit finally, the learned trial Judge will
decide the same uninfluenced by the observations made in
the order dated 27.3.2012 in relation to Exhibits­21 to 23
and 25 to 27.  Subject to this clarification, no case is made
out   for   invocation   of   powers   under   Article   227   of   the

Constitution   of   India.   Petition   fails   and   the   same   is
Writ Petition NO. 8569 OF 2016
Sultan Suleman Qureshi  Mrs. Anisa Rafiq Charolia 
And Ors  .

  CORAM :   R. G. KETKAR, J.
  DATE     :  18th August, 2016

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Whether defendants can be permitted to withdraw admissions given in written statement on ground of misconduct of their Advocate?

The defendant Nos. 3 and 4 filed a written statement in civil suit No. 140/1992 on 08.01.1993. The amendment application was filed by them on 07.03.2006 i.e. more than 13 years after the written statement was filed. The delay is inordinate. But the delay in all cases, cannot be fatal because that party may be pleading new events or the new events may prompt the party to mould the defence. But the fact here is that, the application for amendment, is filed 13 years after the original written statement is filed. Now, the contents of the amendment application seeking amendment to the written statement, become very material. They show that the defendant No. 1 is the real brother of the defendant No. 3 and it is alleged that because of that, the defendant Nos. 3 and 4 had trust in defendant No. 1. It is specifically alleged that the defendant No. 1 approached the defendant Nos. 3 and 4 and told them that he would engage a Lawyer for them and the defendant Nos. 3 and 4 would have to sign the papers prepared by the Advocate. It is further alleged that they signed the blank Vakalatnama. Further, they contend that they were asked by the defendant No. 1 to come to the Court and sign the written statement before the Court Superintendent and accordingly, the defendant Nos. 3 and 4 went to the Court and signed the written statement, but they were not supplied the copies of the written statement and contents of the written statement, were not explained to them. The defendant Nos. 3 and 4 contend that they came to know of the contents of this written statement in civil suit No. 140/1992 and the wrong statements made therein only when they received a copy of the plaint in civil suit No. 112/2005. They contend that they, therefore, issued a notice to their Advocate Shri Joshi withdrawing the Vakalatnama. It is in this background that the amendment of the written statement was sought by the defendant Nos. 3 and 4. The learned Counsel for the respondent, made much ado about the conduct of the Lawyer appearing for the defendant Nos. 3 and 4 and he submits that the conduct of the said Lawyer, was unbecoming and he had drafted the written statement without letting the defendants know the contents. The conduct of the Lawyer here, in fact becomes immaterial. I would only say that prima facie, there is no substance in the contention about the conduct of the Advocate. Prima facie, it appears that both the defendants Nos. 3 and 4 are educated persons. They have signed in English. They had gone with their brother to the Court and had signed the written statement in presence of the Superintendent of the Court. Further, the contents of the amendment application, do not make any kind of allegations against the Lawyer, but all the allegations are made against the defendant No. 1, who is the brother of the defendant No. 3. The learned Counsel for the respondent, should not have, therefore, made an ado about the conduct of Shri Joshi Advocate. It is difficult to assume at this stage that the defendant Nos. 3 and 4 did not know the contents of the written statement for all these 13 years. I may mention further that last para of the old written statement,i.e. para 31 and the contents of that para, are very material. The defendant Nos. 3 and 4 have signed the written statement, which is below that last para. It is difficult to accept that without reading that last para, they had signed the written statement. I may observe here that the learned Judge of the Trial Court while deciding the suit, should not get influenced by these observations because these observations are prima facie observations. Be that as it may, the fact is that the defendants now want to resile from what is stated in the original written statement. We have seen that there is an inordinate delay of 13 years in filing an amendment application. It is difficult to accept prima facie that the defendants were unaware of the contents of the written statement and they came to know of it only on service of plaint in second suit. There is no other explanation in the amendment application for such delay and I do not find the explanation for delay as stated, to be very convincing. 

Writ Petition Nos. 691 of 2008 and 8 of 2009

Decided On: 18.03.2009

 Shri Armando Pereira Vs. Shri Jude D'Souza S/o John D'Souza and Ors.
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Whether one defendant can object to amendment application filed by co-defendant?

The foremost contention that was raised by the learned Counsel for the respondent, is that there is no reason or cause for the defendant No. 1 to raise the objection to the amendment sought to be made by the co-defendant. He submits that it is the plaintiffs' objection alone, which needs to be considered and not of the co-defendant. He also submits that the dispute could be only in between the plaintiffs and the defendants and that alone needs to be resolved and not the dispute between the two sets of the defendants. He further submits that the plaintiffs gave no objection to such amendment being allowed and, therefore, there was nothing wrong when the amendment was allowed. While considering the application, the Court has to see if such amendment is allowed, any prejudice will be caused to the plaintiffs and whether any of the rights of the plaintiffs, would be affected or not. There is no doubt that in the routine course, the Courts are required to decide the question as to the granting of the application for amendment vis-a-vis the plaintiff and the defendant alone. I do not, however, agree with the submission of the learned Counsel Shri Sharma that the Court need not consider any of the objection of the co-defendant/ the defendant No. 1 in the present case. Apart from this case, the Court would certainly be required to decide a dispute between the two defendants when their interest could be adverse or become adverse. Such a contingency can arise even when the plaintiff abandons the claim and one of the defendants has substantial question to be decided as against any of the other defendants. Order 23 Rule 1(a) of Civil Procedure Code, permits the defendant to be transposed as a plaintiff. This is precisely because there could be a dispute between two defendants. Yet another reason why such an objection of the co-defendant, needed to be heard, is whether the other defendant was withdrawing any admission to his detriment. If there is any admission in the pleadings of one of the defendants, which may help the other defendant, he has every right to resist the admission being withdrawn. An admission has been defined in Section 17 of the Evidence Act as follows:

Section 17- Admission - An admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned." Not only Section 17 here is important, but to decide this question we need to look into two more provisions. Those provisions are Section 18 of the Indian Evidence Act as well as Rule 1 of Order 12 of Civil Procedure Code. What Section 18 says, is that a statement by a person interested in the subject matter, is an admission. It says if a person having proprietary or pecuniary interest in the subject matter of proceeding gives admissions, all admissions if they are made during continuance of interest of the person making the statements, are admissions. In the instant case, the plaintiffs have claimed that they are the owners of half property while the defendant No. 1 claims that he had purchased the suit property in the name of the defendant No. 3 from his own funds. The defendant Nos. 3 and 4, by their original written statement, had endorsed this stand of the defendant No. 1. Obviously, they had made statement as envisaged by Section 18 which could be treated as an admission. Rule 1 of Order 12 of Civil Procedure Code, says that any party to a suit, may give notice by his pleadings or otherwise in writing that he admits the truth of the whole or any part of the case of any other party. The words used in Rule, are "any other party" and not necessarily an adverse party. It could be either the plaintiff or the defendant also.

The above discussion clearly goes to show that the codefendant does have a right to challenge or oppose the amendment sought to be made by the other defendants.


Writ Petition Nos. 691 of 2008 and 8 of 2009

Decided On: 18.03.2009

 Shri Armando Pereira Vs. Shri Jude D'Souza S/o John D'Souza and Ors.

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