The court affirmed the practice of allowing marking of documents subject to objections to promote efficiency in trial proceedings, emphasizing that admissibility issues should be resolved in the final judgment.

ORAL ORDER

1. This writ petition under Article 227 of the Constitution of India is filed by the petitioners-plaintiff Nos.1 to 3 challenging the orders dated 03.09.2024 passed on I.A.No.2/2024 and dated 04.02.2025 passed on I.A.No.3/2024 in O.S.No.5976/2011, whereby I.A.No.2/2024 filed by defendant No.1 under Sections 58 and 60 of the Bharatiya Sakshya Adhiniyam, 2023 (hereinafter referred to as ‘BSA, 2023’) has been allowed and I.A.No.3/2024 filed by the plaintiffs under Section 114 read with Order XLVII Rule 1 of CPC has been dismissed.

2. The plaintiffs filed the suit for partition and separate possession. After service of summons, defendant No.1 appeared through counsel and filed the written statement. On the basis of the pleadings of the parties, the issues have been framed. After completion of evidence of plaintiffs and when the matter was posted for defendants’ evidence, defendant No.1 filed an application seeking permission to mark the xerox copy of the rectification of affidavit filed before the State Election Commission as Exs.D.225, 226 and 227. The plaintiffs objected, stating that the xerox copies cannot be allowed to be marked. After hearing the parties, the trial Court by order dated 03.09.2024 allowed the application filed by defendant No.1. Being aggrieved by the order dated 03.09.2024, the plaintiffs filed I.A.No.3/2024 seeking for review of the order dated 03.09.2024 passed on I.A.No.2/2024. The trial Court by order dated 04.02.2025 dismissed the application filed by the plaintiffs. Being aggrieved by the orders dated 03.09.2024 and 04.02.2025 passed by the trial Court on I.A.No.2/2024 and I.A.No.3/2024, respectively, the petitioners/plaintiffs are before this Court in this writ petition.

3. Learned counsel appearing for the petitioners has contended that the documents, which are sought to be marked by defendant No.1 is xerox copy of affidavit filed before the Election Commission. Under BSA, 2023, xerox copy cannot be permitted to be marked as secondary evidence. He further contended that the Election Commissioner has been examined as CW-2. In his evidence, he has deposed that these documents are not available in the original records. Under these circumstances, the xerox copy cannot be permitted to be marked as secondary evidence. In support of his contentions, he has relied upon the judgment of Apex Court in the cases of J.Yashoda v. K.Shobha Rani reported in (2007) 5 SCC 730, Ram Suresh Singh v. Prabhat Singh Alias Chhotu Singh and Another reported in (2009) 6 SCC 681 and Shalimar Chemical Works Limited v. Surendra Oil and Dal Mills (Refineries) and Others reported in (2010) 8 SCC 423. Hence, he sought for allowing the writ petition.

4. Learned senior counsel appearing for respondents has contended that plaintiff No.1 examined himself as PW-1 and got marked Ex.P121, 122, 123 and 124, which are documents downloaded from the website of Election Commission. On the basis of these documents, plaintiff No.1 has objected for marking of the affidavit filed by defendant No.1 before the Election Commission on two grounds; (i) affidavit is xerox copy and (ii) on the ground that the affidavit is for seeking rectification of Ex.P121. In fact, Ex.P121 marked by PW-1 itself is a copy downloaded from the website. Even the rectification affidavit, which was produced by defendant No.1 is office copy which was submitted to the Election Commission. Under Rule 94 of the Conduct of Elections Rules, 1961, if there is no dispute in respect of the election, the Election papers will be destroyed after one year. Just because it was not available with the office of Election Commission, the defendant cannot be denied to mark the xerox copy, that too, subject to objection. He further contended that even by marking the xerox copy, it will not cause prejudice to the rights of the plaintiffs and they can raise all objections at the time of the final argument. In support of his contentions, he relied upon the judgment of this Court in the ca