2003 Supreme(Bom) 91

IN THE HIGH COURT OF BOMBAY
Khandeparkar R.M.S., J.
Durgashankar S. Trivedi others .... Petitioners.
Versus
Babubhai Bhulabhai Parekh.... Respondent.
Writ Petition No. 7094 of 2002, decided on 22-1-2003.
Advocates appeared :
V.A. Gangal, for petitioners.

Headnote:Civil Procedure Code, 1908 - Order XIII, Rules 4 and 6 - Admission of document - Documents produced with affidavit - Not liable to be exhibited without testing admissibility of documents - Admissibility of documents to be decided by Court before exhibiting them in evidence - Admission of documents without considering objections - Contrary to provisions of law - Order impugned not sustainable. - Merely because under Rule 4 of Order XIII the parties are allowed to produce documents along with affidavit, it cannot be construed that such documents. In fact, proviso to sub-rule (1) of Rule 4 of the CPC itself discloses that the Court has to decide about the admissibility of documents before they are being exhibited in the evidence.

       The trial Court in allowing the documents produced by the respondent along with 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

       Civil Procedure Code, 1908 - Order XIII, Rule 4, Order XVIII, Rule 4 - Objection on admissibility of document - Held - Parties do submit document with affidavits - It is for Court to decide prior to going ahead in proceedings, whether those documents are admissible or not - Objection should also be decided prior to going ahead with case - Prior to sub-rule (1) of Rule 4 of Order XVIII, CPC itself says that Court has to decide about the admissibility of document. - 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. 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 XVIII 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. Parties to act on ordinary copy of the order duly authenticated by the Personal Secretary/ Court Sheristedar.

       Civil Procedure Code, 1908 - Order XIII, Rules 4 and 6, Order XVIII, Rule 4 - Admissibility of documents - Attached with affidavit - Procedure to be followed as per law - It is first to decide whether the document was admissible or not - Procedure under Order XIII, Rules 4 and 6, CPC to be adopted - Rule 4 of Order XIII, CPC does not speak of exclusion of applicability of Order XIII to documentary evidence. - It is necessary for witness for recording the 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, Rules 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 alongwith their affidavits nor it enables the Court to ignore the provisions of law relating to admissibility of documents in evidence.

       City of Nagpur Corporation Act, 1948 - Chapter 27, Rule 524 - Admissibility of document - Attached with affidavit - Before going ahead in case, Court must decide about admissibility of this document - Procedure to be followed as per law - A document can be exhibited in evidence only when it is admissible - It is clear under Order XIII, Rules 4 and 6 read with 524 of Civil Court manual. - 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 XVIII 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.