JUDGMENT : 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

Contextual Facts : ---------------

2. It is not necessary to sketch the detailed contextual facts of all cases placed before us. Suffice it to refer two sets of precedents reflecting conflicting opinions giving rise to the present reference.

3. In Writ Petition No.1902/05, the petitioners, who are original defendants, have objected to the order dated 12th January, 2005 by which the learned trial Judge has marked 126 documents as exhibits with the following directions:

"All the documents relied upon by the plaintiffs in the list of documents from Sr.No.1 to 126 are marked as Exhibits subject to production & proof thereof, under the Evidence Act."

The above order has been made in respect of the documents tendered along with affidavit of evidence filed by the respondents (original plaintiffs). The admissibility has been objected by the petitioners (original defendants). It was the principal contention of the learned counsel for the petitioners that the objection to the admissibility of these documents which were mainly books which refer to religious practice of a particular set, are so voluminous that it is not possible for the petitioners to determine which document should be made subject of cross-examination and which may not, having regard to the fact, the Court has exhibited the said documents tentatively subject to proof.

4. The learned counsel for the petitioners submitted before the learned single Judge that the cross-examination as regards all documents would be fruitless, in case it is eventually held that the documents are inadmissible. Therefore, the submission of the learned counsel was that it was imperative and also in accordance with the procedure prescribed by law that the admissibility of these documents ought be decided at the stage at which the objection to their being exhibited is taken.

5. In the another writ petition, being Writ Petition No.623 of 2005, the petitioner is a defendant. He has been sued for damages in respect of certain allegedly defamatory statements. The petitioner therein has objected to the admissibility and relevance of the evidence tendered by the respondent in the examination-in-chief by way of affidavit under Order XVIII Rule 4 of the Code of Civil Procedure ("C.P.C." for short). The trial Court ruled that the question whether or not a particular statement is relevant or admissible cannot be gone into before cross-examination of the witness and can be considered finally at a later stage.

6. Being aggrieved by the above order, the petitioner invoked writ jurisdiction of the learned Single Judge and pressed into service the grounds similar to those in Writ Petition No.1902/2005. According to the learned counsel, pending decision as to the admissibility and relevance of the statements in the affidavit of evidence, it was difficult for the petitioner (original defendant) to decide whether to cross-examine the witness as to those statements, which were objected to as inadmissible.

7. One view, relied upon by the learned counsel for the petitioners in the above petitions was as reflected in two decisions of the learned single Judges of this Court, one rendered by Shri R.M.S. Khandeparkar, J. (as he then was) in Babubhai Durgashankar v. Babubhai, 2003 (2) Mh.L.J. 576 and the other rendered by Dr. D.Y. Chandrachud, J. in Bharat R. Desai v. Naina M. Bhal 2004 (2) Bom.C.R. 695. In these cases, having regard to the provisions of Order XIII and Order XVIII of C.P.C. the two learned single Judges have held that while allowing the parties to lead evidence i

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