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IN THE HIGH COURT OF BOMBAY
SUNIL TUKARAM BHARADKAR
Versus
SANTOSH GOPICHAND RANE
Decided on, APRIL 10, 2006
Civil Procedure Code, 1908 - Order XVIII, Rule 4 Evidence in the form of affidavit Mere endorsement on the document about the exhibit number does not constitute exhibition of the document in evidence. It is not mere endorsement on the document about the exhibit number that will constitute exhibition of the documents in evidence in accordance with the provisions of law. In order to say that the document has been exhibited in evidence, it has to be in accordance with the provisions of law comprised under Order XVIII, Rule 4 read with Order XIII, Rule 4 of the Civil Procedure Code. Being so, merely because on 19.7.2005 the Court had recorded in the Roznama that the document annexed to the affidavit evidence were exhibited as Exhibits 3 to 9, that itself did not constitute exhibition of those documents in evidence. Besides, the endorsement itself disclosed that the exhibition was "subject to objection". In other words, the documents were yet to be exhibited in evidence in accordance with the provisions of law under Order XVIII, Rule 4 read with Order XIII, Rule 4 of the Civil Procedure Code and that function was performed by the trial Court on 16.8.2005. The Court by the said order de-exhibited documents shown as Exh. B.C and directed the plaintiff to prove those documents as per law. Merely because the expression "de-exhibited" has been used in the order dated 16.8.2005, it would not amount to "de-exhibition of documents in evidence. It would simply mean that the documents other than those which are exhibited in terms of Order XIII, Rule 4 on 16.8.2005, are not admitted in evidence. The impugned order dated 16.8.2005 specifically permits the petitioner to prove the documents as per law. The petitioner, therefore, cannot be heard to say that the trial Court has refused to give opportunity to the petitioner to prove those documents.
( 2 ) THE petitioner challenges the order dated 16-8-2005 on the ground that the law does not permit de-exhibition of documents once the documents are exhibited in evidence and secondly that no opportunity has been given to the petitioner/plaintiff to prove the documents which were sought to be refused to be admitted.
( 3 ) FEW facts relevant for the decision are that the Civil Suit No. 3600 of 2004, filed by the petitioner, was fixed for the plaintiffs evidence on 19-7-2005. On that day, the petitioner sought to lead evidence in the form of affidavit under order 18, Rule 4 of the Code of Civil Procedure, hereinafter called as "the c. P. C. " along with certain documents. The said affidavit along with the documents was taken on record by the trial Court. The affidavit was marked exhibit-1. The list of the documents annexed to the affidavit was marked as exhibit-2 and the documents which were annexed to the suit list and bearing serial Nos. 1 to 7 were marked as "exhibits 3 to 9, subject to objection". The advocate for the respondent/defendant was directed to give his say on the point of admissibility of those documents in evidence. The matter was adjourned to 28- 7-2005 and further to 16-8-2005. On 16-8-2005 the petitioner entered the witness box and placed the said affidavit in evidence in lieu of his examination-in-chief. It was in the absence of the respondent and his Advocate. However, after some time, the Advocate for the defendant appeared and he was allowed to cross- examine the plaintiff. On that occasion, the trial Court passed the impugned order which reads thus: "heard parties. Read Affidavit submitted in lieu of Examination in chief. Received documents. The objections regarding exhibiting documents with respect to Sr. No. 3, 4 and 5 are allowed. Documents shown as exh. b, c, cl and list are hereby de-exhibited. The Plaintiff may prove those documents as per law. The objection with respect to document Sr. No. l is rejected. Thereafter the cross-examination of the plaintiff concluded on the very day i. e. 16-8-2005. The petitioner, thereafter, filed the present petition.
( 4 ) WHILE drawing attention to the decision of the learned single Judge in boman P. Irani and another vs. Manilal P. Gala and others, reported in 2004 (2) mh. L. J. 128 and the decision of the Apex Court in the matter of Bipin Shantilal panchal vs. State of Gujarat and another, reported in AIR 2001 SC 1158, the learned Advocate appearing for the petitioner submitted that the trial Court having once admitted the documents in evidence and exhibited them, it was not permissible for the trial Court to de-exhibit those documents, as the provisions of law nowhere empowers the Court to de-exhibit the document once it is admitted in evidence. He further submitted that in any case before proceeding with the cross-examination of the plaintiff, admission of certain documents having been refused, it was necessary for the trial Court to give opportunity to the petitioner to prove those documents and having not given that opportunity, the trial Court has in fact failed to exercise its jurisdiction in the manner it ought to have exercised. In any case, the document having been once marked as exhibit in the evidence, any decision regarding the admissibility of the document could have been taken at the time of disposal of the suit. The learned Advocate appearing for the respondent, on the other hand, submitted that the impugned order itself discloses that the petitioner has been assured the opportunity to prove those documents as per law. Being so, it is not correct that the petitioner has not been given the opportunity to prove the documents. Drawing attention to the decision in F. D. C. Ltd. vs. Federation of Medical Representatives Association India (FMRAI) and others, reported in 2003 (3) Mh. L. J. 327 = AIR 2003 Bombay 371. the learned Advocate
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