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2016 Supreme(Ker) 1438
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P. Somarajan, J.
Franklin Fernandez – Petitioner
Versus
Majo Stalin – Respondent
O.P.(C) No.138 of 2014
Decided On : 27-10-2016
For the Petitioner: G.P. Shinod, G. Ram Mohan, V. Manu & Govind Padmanaabhan
For the Respondent: M.R. Sarin
IMPORTANT POINTS :
When there is objection in marking the documents, the procedure to be followed by the trial court is to mark the documents tentatively as held in Bibin Shantilal Panchal v. State of Gujarat and another (AIR) 2001 SC 1158) and Nambi Narayanan v. State of Kerala and others 2010 (1) KHC 293).
Headnote:Code of civil procedure- Order 41 Rule 27 CPC.- the application of Rule 3 of Order 13 would arise before the acceptance of document in evidence (before admitting in evidence). The power under Rule 3 of Order 13 can be exercised at any stage of the suit but the questions which were available at that time.
Statement of facts :
The petition is filed under Article 227 of the Constitution of India by the petitioner/plaintiff in I.A Nos. 22 of 2014 and 25 of 2014 in O.S No. 116 of 2009 of the Sub Court, Attingal, challenging the order dated 04.01.2014, by which both the applications were dismissed. The factual matrix of the case is as follows- The application in I.A No. 22 of 2014 in O.S No. 116 of 2009 is filed for receiving the documents on the file of the court- The other application I.A No. 25 of 2014 is filed for marking the documents produced along with the application- Both the applications were objected by the defendant/counter petitioner on the ground that, the examination of plaintiff was over and trial already commenced and that those documents were produced in a highly belated stage.
Finding of the court :
It is not permissible to reject a document produced along with an application for receiving the same on the file of Court, at its initial stage unless the same suffers any material defect as to its stamp duty payable, or due to any substantial damage making the document incomplete and unacceptable.
(2) Receipt of document on the file of Court cannot be substituted in the place of acceptance in evidence.
(3) The question of probative value of the document produced would arise only at the final hearing on the question of grant of any interim relief based on right or entitlement of parties, either at the interim stage or at the final stage of the suit.
(4) The question whether the document produced from a proper custody is a matter relating to the admissibility of the said document in evidence and hence can be raised only at the time of final hearing of the suit or the interim application, as the case may be.
(5) When objections are raised with respect to the admissibility of document, the same can be marked tentatively subject to the objections as held in Bibin Shantilal Panchal & Nambi Narayanan's cases.
(6) It is up to the person who produces the document to decide in what manner and through whom the document has to be proved either by adducing direct evidence or by other methods available under law. The duty of the Court is to look into the question as to whether the party has complied with the requirement for proving a document in accordance with the law in force.
Result : The original petition is disposed of.
The petition is filed under Article 227 of the Constitution of India by the petitioner/plaintiff in I.A Nos. 22 of 2014 and 25 of 2014 in O.S No. 116 of 2009 of the Sub Court, Attingal, challenging the order dated 04.01.2014, by which both the applications were dismissed. The factual matrix of the case is as follows. The application in I.A No. 22 of 2014 in O.S No. 116 of 2009 is filed for receiving the documents on the file of the court. The other application I.A No. 25 of 2014 is filed for marking the documents produced along with the application. Both the applications were objected by the defendant/counter petitioner on the ground that, the examination of plaintiff was over and trial already commenced and that those documents were produced in a highly belated stage.
2. Heard Sri G.P. Shinod, the learned counsel appearing for the petitioner and Sri M R Sarin, the learned counsel appearing for the respondent.
3. The impugned order passed in I.A Nos. 22 of 2014 and 25 of 2014, are dated 04.01.2014. Admittedly, those two applications were filed after the examination of the plaintiff and completion of cross-examination. It was submitted by the learned counsel for the plaintiff/petitioner that a specific question was asked during the course of cross-examination of PW1/plaintiff with respect to the source of amount alleged to have been advanced to the defendant and also regarding the documents if any available to show the source of amount. In pursuant to the above said question, documents were produced along with the applications in I.A Nos. 22 of 2014 and 25 of 2014. The former one is for receiving the said documents on the file of the lower court and the latter one is for marking the same as Exhibits. The former one was dismissed by the lower court stating that, the plaintiff is not the custodian of the documents mentioned in the petition and that it was not produced from proper custody. The said application in fact filed for receiving the documents on the file of the court. There is a lot of difference between “receiving documents on the file of the court” and “acceptance in evidence”. The probative value of the documents or admissibility of the documents is normally available at the final stage viz., at the stage of final argument either in the suit or in the interlocutory application filed for any interim relief. It is really impermissible to jump into a conclusion on an earlier point of time regarding the probative value of documents produced in an application submitted for receiving the document. The only question which can be looked into by the court at the time of reception of document on the file is the material defect, if any, attached to the document, such as deficiency of stamp fee, substantial damages if any suffered by the document and the like. Its probative value cannot be considered on a petition, which was filed for receiving the documents on the file of the court. Mere receipt of documents in the file of the court does not mean that it was accepted or admitted in evidence. The expression “admitted in evidence” stands for admitting a document on satisfying its probative value, relevance and admissibility in evidence, which requires elaborate consideration and it can be done only at the final argument stage. Order 13 Rules 3 and 4 of the Code of Civil Procedure are extracted below for reference:
R.3. Rejection of irrelevant or inadmissible documents.-- The Court may at any stage of the suit reject document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection.
R.4 Endorsements on documents admitted in evidence
(1) Subject to the provisions of the next following sub-rule, there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars namely:-
(a) the number and title of the suit,
(b) the name of the person producing the document,
(c) the date on which it was produced, and
(d) a statement of its having been so admitted,
