Proper consideration of the admissibility of documents and the potential irreversible consequences of admitting documents as secondary evidence without due examination.

Prakash Tatia, J.-Heard learned Counsel for the parties.

2. It appears that the petitioner/defendant submitted an application under Order 13 Rule 3, CPC before the trial Court and raised objection about admissibility of the document on the ground that since the original document is in existence and has not been produced by the plaintiff , therefore, no mark of exhibit can be put on the copy of document as the document in question is inadmissible in evidence as the primary evidence is available and further the original document is not executed on proper stamps.

3. The petitioners above said application was dismissed by the trial Court on the ground that the objection can be decided by the Court subsequently after the evidence and the mark of Exhibit, subject to objection, can be put on document. The trial Court took help of amendment in CPC and observed that after the amendment in CPC, the evidence can be produced by the parties by way of an affidavit and objection about admissibility of the document can be examined by the Court only afterwards.

4. According to learned Counsel for the petitioner, the document in question is a fabricated document and for that purpose, the petitioner has already pleaded before the trial Court in his written statement and the original document has not been produced deliberately and even in criminal proceedings relating to this very document, the document was alleged to have not been submitted by the police alongwith the criminal case papers and, therefore, a petition under Section 482, CrPC was submitted before this Court which is S.B. Cr. Miscellaneous Petition No. 287/2002 and because of the efforts made by this Court, the original document has been submitted by the police alongwith FR. After taking note of the facts in above Cr. Miscellaneous Petition No. 287/2002, this Court directed the petitioner to move appropriate application in that regard before the trial Court and this Court further observed that if such application is made, the same shall be decided by the Court in accordance with law and the miscellaneous petition was disposed of .

5. According to learned Counsel, for the petitioner, since the document in question has been set up by the plaintiff/respondent No. 2 and has been produced in the criminal case and has not been produced by the petitioner before the police, therefore, the plaintiff can get the original document released from the Court and may produce the original documents.

6. The above argument of the learned Counsel for petitioner was in addition to challenge to the order dated 21.05.2004 whereby the petitioners objection about admitting the document in evidence was rejected by the trial Court.

7. Learned Counsel for respondent/plaintiff submitted that in view of the change in circumstances, this Court may direct for production of the original document and the plaintiff will produce the document in view of the order passed by this Court on 20.07.2004 in S.B. Criminal Misc. Petition No. 287/2002.

8. Learned Counsel for respondent/plaintiff also relied upon a Judgment of Karnataka High Court delivered in the case of Sri K. Anjaneya Setty vs. Sri K.H. Rangiah Setty reported in AIR 2002 Karnataka 287, wherein after relying upon the Judgment of Apex Court delivered in the case of Bipin Shantilal Panchal vs. State of Gujarat reported in AIR 2001 SC 1158, the Karnataka High Court held that when an objection is raised for marking of a document, the Court should record the objection and thereafter permit the document to be marked subject to objection and thereafter the other party, may be allowed cross-examination on the document and objection about admissibility can be decided afterwards by the Court.

9. According to learned Counsel for respondent/plaintiff , in view of the above, there is no illegality in the order dated 21.05.2005.

10. I have considered the rival submissions.

11. It may be worthwhile to mention here that all said above is about only procedure to be adop