Advocates:
['MANMAYA KUMAR DASH', '', 'D SAHOO', 'S K RATH', 'M/S MAHESWAR MOHANTY', 'N BEHERA']

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C.M.P No. 530 of 2022

HIGH COURT OF ORISSA: CUTTACK

C.M.P No. 530 of 2022

(In the matter of an application under

Article 227 of the Constitution of India, 1950)

***

Babita Satpathy @ Mishra

…

Petitioner

Mr. Manmaya Kumar Dash, Advocate

-versus-

Sitanshu Kumar Dash and others

…

Opposite Parties

Mr. Maheswar Mohanty,

Date of Hearing : 12.07.2022

: Date of Judgment: 03.08.2022

CORAM:

JUSTICE KRUSHNA RAM MOHAPATRA

JUDGMENT

KRUSHNA RAM MOHAPATRA, J.

1.

This matter is taken up by virtual/physical mode.

2.

Legality and sustainability of order dated 16^th May, 2022

(Annexure-7) passed in CS No.2116 of 2016 is in question in this

CMP,

whereby

learned

Civil

Judge

(Senior

Division),

Bhubaneswar rejected an application filed by Defendant Nos. 1

and 4 (Petitioners herein) filed with a prayer to unmark and

expunge Exts.2, 3, 5, 6, 7 and 8 marked on behalf of

Plaintiffs/Opposite Party Nos. 1 and 2.

3.

Short narration of facts necessary for proper adjudication of the

case are that CS No.2116 of 2016 has been filed for allotment of

1/3^rd share in favour of the Plaintiffs, declaration of registered gift

deed dated 21^st November, 2011 as void and no way affects the

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C.M.P No. 530 of 2022

right, title and interest and possession of the Plaintiffs and

Defendant Nos. 5 to 8 as well as for permanent injunction. Along

with other documents, PW-1 while leading evidence, exhibited

documents, i.e., Exts. 2, 3, 5, 6, 7 and 8, which were marked with

objection raised by Defendant Nos. 1 and 4 (present Petitioners).

Subsequently, the Petitioners filed an application to unmark and

expunge the aforesaid exhibits. The said petition being rejected

vide Order under Annexure-7, is assailed in this CMP.

4.

Mr. Dash, learned counsel for the Petitioners assailed the order on

the ground that Exts. 2, 3, 5, 6, 7 and 8 are secondary evidence being

certified copies of registered sale deeds, mortgage deeds as well as

information sheet showing correlation of Settlement and Hal plots. It

is his submission that no secondary evidence is admissible without

laying foundation for producing the same. The Plaintiffs before

exhibiting the aforesaid documents in evidence were required to lay

foundation for leading such secondary evidence as required under

Section 65 of the Evidence Act, 1872. That having not been done,

the aforesaid exhibits are not admissible in evidence and are required

to be expunged and unmarked. It is his submission that Order XIII

Rule 3 CPC clearly envisages that the Court in its discretion at any

stage of the suit can reject any document which it considers

irrelevant or otherwise inadmissible, by recording grounds of said

rejection. Thus, the Court is not powerless to reject/expunge a

document at any stage of the suit, which is inadmissible in evidence.

Learned trial Court, while adjudicating the petition failed to

appreciate the same and rejected the petition on the ground that there

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C.M.P No. 530 of 2022

is no provision under CPC to unmark any document, which has

already been marked as exhibit.

4.1

It is further submitted that the other ground of rejection was that

since the documents, as aforesaid, have been marked with

objection, admissibility of the same or otherwise can be

considered and discussed in the judgment itself taking into

consideration the arguments advanced and materials on record. It

is his submission that such a finding is not sustainable in view of

the settled position of law that no secondary evidence can be

admitted without leading foundational evidence for the same. In

support of his submission, he relied upon the decision in the case

of Rakesh Mohindra Vs. Anita Beri and others, reported in 2016

(I) OLR (SC) 277, wherein, the Hon’ble Supreme Court at

Paragraph-23 discussed the ratio of M. Chandra Vs. M.

Thangamuthu and another, reported in (2010) 9 S