The admissibility of the document cannot be established by mere filing of the affidavit by the parties but the documents are necessarily required to be tendered by the deponent, while allowing the other side to have an opportunity to contest the admissibility of the document and an appropriate decision of the court on such contest by the parties is necessary. Undoubtedly, this decision has to be prior to exhibition of the documents in evidence as already stated above. Merely because under Rule 4 of Order 18 the parties are allowed to produce documents alongwith affidavit, it cannot be construed that such documents are to be exhibited without testing the admissibility of such documents. In fact, proviso to Sub-rule 1 of Rule 4 of CPC itself discloses that the court has to decide about the admissibility of documents before they are being exhibited in the evidence.
Bombay High Court
Shri Durgashankar S. Trivedi, ... vs Shri Babubhai Bhulabhai Parekh on 22 January, 2003
Equivalent citations: AIR 2003 Bom 487, 2003 (4) BomCR 626, 2003 (2) MhLj 576
Bench: R Khandeparkar
1. Heard learned Advocate for the Petitioners. None for the respondent though served. The notice of the petition was issued to the respondent giving clear intimation that the matter would be disposed of finally at the admission stage itself. None has chosen to appear on behalf of the respondent. Apparently, the respondent has nothing to say in the matter.
2. Making grievance about the growing tendency to postpone the decision on the objection to the admissibility of documents to the stage of final hearing of the suits and allowing the document to be exhibit without considering the objection to its admissibility and in violation of the provisions of law contained in Order XIII of Code of Civil Procedure as well as contrary to the law laid down by the Apex Court and this Court in that regard, the learned Advocate for the Petitioners has submitted that the trial court has totally ignored that in terms of the provisions of law it is necessary for the parties to tender the document by entering into witness box and its admissibility being required to be tested before it can from part of the evidence. The court below having totally ignored this aspect, has acted not only in breach of procedure but contrary to the law load down by the Apex Court and this Court on the point in issue. Reliance is sought to be placed in the decision of the Apex Court in the matter ofJaver Chand v. Pukhraj Surana and in the case of Ram Rattan (dead) by legal representatives v. Bajrang Lal , and of this Court in the matter of Saifuddin Saheblal Vazir v. Habjabai Mishra Patel .
3. Facts in brief relevant for the decision are that taking recourse to the provisions of Order XVIII Rule 4 of CPC, the respondent-plaintiff sought to tender the evidence in the form of affidavit of his witness and alongwith such affidavit sought to produce documents on record. The trial court while taking such affidavit on record, also allowed the respondent to tender the documents alongwith the affidavit of his witness and the same were exhibited without considering and deciding the objection which was raised by the petitioners to the admissibility of such document as well as in relation to the procedure to be followed for the purpose of producing the documents in evidence when the parties are allowed to lead the evidence in the form of affidavit under Order XVIII Rule 4 of CPC. Hence the present petition.
4. Order XVIII Rule 4 Sub-rule 1 of CPC provides that in every case, the examination in chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party, provided that where documents are filed alongwith such affidavit, the proof and admissibility thereof shall be subject to the order of the court.
5. Undoubtedly, with effect from 1.7.2002, consequent to the enforcement of C.P.C. (Amendment) Act 2002, the parties to a suit are allowed to lead part of evidence comprising of examination in chief of the parties and their witnesses by filing affidavit and also to produce documents alongwith such affidavits. At the same time, as per the proviso to Sub-rule 1 of Rule 4, the proof and admissibility of documents produced alongwith such affidavit is made subject to the order of the court in that regard. There is no doubt that the said sub rule does not specify the stage at which the decision regarding admissibility of the document produced alongwith affidavit is to be decided. However, the law in that regard is well settled, pursuant to the decisions of the Apex Court relied upon by the learned Advocates for the Petitioner and has been further clarified by this Court in the matter of Saifuddin Saheblal Vazir (supra).
6. It is to be noted that though new procedure in relation to leading the evidence in form of examination in chief by the parties and their witnesses has been introduced with effect from 1.7.2002, the procedure for testing and deciding the admissibility of the documents in evidence and the methodology for exhibiting the documents in evidence has remained unchanged. In Saifuddin's case, after taking note of various decisions of the Apex Court as well as provisions of law concerning the procedure relating to admission and rejection of documents in evidence, it was observed that the document can be exhibited in evidence only when such a document is admissible in evidence and not otherwise and the same is clear from Order XIII Rule 4 & 6 r/w 524 of Civil Court Manual. Infact, the provisions of law contained in Rule 4 of Order XIII of CPC are to be read with Rule 6 of Order XIII of CPC. The question of exhibiting the document under the said Rule 4 can arise only if the document is found to be admissible in evidence and in case it is not admissible, the same is to be rejected in terms of Rule 6 of Order XIII r/w paragraph 524 of Civil Court Manual.
7. The Apex Court in Ram Rattan's case (supra) had clearly held that when the document is tendered in evidence by the plaintiff while in the witness box, and if objection is raised by the defendant that the document is in-admissible in evidence as it is not duly stamped and for want of registration, then it is obligatory upon the court to apply its mind to the objection raised and to decide the objection in accordance with law. Similarly in Javer Chand's case (supra) it was ruled by the Apex Court that where the question as to the admissibility of the document is raised on the ground that it has not been stamped or has not been properly stamped, the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. Once the court rightly or wrongly decides to admit the documents, so far as parties are concerned, the matter stands closed. The party challenging the admissibility of the document has to be vigilant to see to it that the inadmissible document is not admitted in evidence by the court and the court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case.
8. The production of documents alongwith the affidavit will not make any difference as far as the procedure to be followed by the court in the matter of admitting and exhibiting such documents in evidence. It is to be borne in mind that Rule 4 of Order XVIII does not deal with the procedure relating to admission and exhibition of documents in evidence. It only permits the parties and their witnesses to produce the documents alongwith affidavit. The production of documents alongwith affidavits is different from the admissibility and exhibition of such documents in evidence by the court. It is also to be borne in mind that affidavit relating to examination in chief produced in terms of Rule 4 Order XVIII is to be received in evidence by following the procedure prescribed in Rules 5 and 13 of Order XVIII in appealable and non appealable cases, respectively. Mere filing of affidavit relating to examination in chief either of the parties to the suit or of their witness will not ipso facto form it to be part of evidence. In order that it should form part of evidence, it has to be dealt with an accordance with the procedure specified under Rule 5 or 13 as the case may be. For example in appealable cases, it would be necessary for the witness to enter the witness box and tender such affidavit confirming that the contents thereof are as per his say and the same are true and correct and thereafter the affidavit will have to be taken on record by recording the said statement of the witness in the manner prescribed under Rule 5, and in case of non appealable cases by drawing memorandum of such statement of witness and production of affidavit in terms of Rule 13 of the said order. However, before taking on record the document filed alongwith such affidavit, it is necessary for the court to decide about the issue of admissibility of such document and in that connection the procedure prescribed under the provisions of law contained in Order XIII Rule 4 and 6 of CPC is required to be followed. It is to be noted that Rule 4 of Order XVIII does not speak of exclusion of applicability of the provisions of Order XIII to the documentary evidence sought to be produced by the parties or their witnesses alognwith their affidavits nor it enables the court to ignore the provisions of law relating to admissibility of documents in evidence.
9. While allowing the parties to lead evidence in the form of affidavits, the courts therefore, have to bear in mind that though the parties are entitled to produce documents alongwith affidavit, the admissibility of such document is to be decided by the court before documents are being exhibited in evidence and the decision cannot be postponed till the final disposal of the case or any time after the documents are exhibited in accordance with Order XIII Rule 4 of CPC. The objection to the admissibility of the document should be dealt with and decided at the time the affidavit with documents is produced and being taken on record.
10. The admissibility of the document cannot be established by mere filing of the affidavit by the parties but the documents are necessarily required to be tendered by the deponent, while allowing the other side to have an opportunity to contest the admissibility of the document and an appropriate decision of the court on such contest by the parties is necessary. Undoubtedly, this decision has to be prior to exhibition of the documents in evidence as already stated above. Merely because under Rule 4 of Order 18 the parties are allowed to produce documents alongwith affidavit, it cannot be construed that such documents are to be exhibited without testing the admissibility of such documents. In fact, proviso to Sub-rule 1 of Rule 4 of CPC itself discloses that the court has to decide about the admissibility of documents before they are being exhibited in the evidence.
11. In the case in hand, the trial court in allowing the documents produced by the respondent alongwith affidavit and exhibiting them, without considering the objections, has clearly acted contrary to the provisions of law as well as to the above referred rulings and therefore, the impugned order cannot be sustained.
12. In the result, therefore, petition succeeds. Impugned order is set aside and the trial court is directed to decide the issue regarding admissibility of the documents produced by the respondent alongwith the affidavit of (PW 2) before they are being exhibited in the evidence. Needless to say that the admissibility will have to be decided in accordance with the provisions of law. Rule is made absolute accordingly with no order as to costs.
Parties to act on ordinary copy of the order duly authenticated by the Personal Secretary/Court Sheristedar.
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