Narendra Prasad & Ot... v. Indian Express Newsp...

(2010) 8 SCC 423 (Shalimar Chemical Works Ltd. v. Surendra Oil and Dal Mills);

AIR 1957 (Madras) 1 (DB) (Rama Gopal Naicker v. Muthukrishna Iyer);

AIR 2001 AP 394 Badrunnisa Begum… v. Mohamooda Begum…);

AIR 1999 Delhi 280 (Arati Bhargava v. Kavikumar Bhargava);

2002-1-L.W. (Crl.) 115 : (2001) 3 SCC 1 (Bipin Shanthilal Panchal v. State of Gujarat);

2013-2-L.W. 350 : 2013 (2) CTC 864 (G. Ramamoorthy v. M.S.R Sivakumar);

2008 (5) CTC 577 (FB) (Hemendra Rasikal Ghia v. Subodh Mody);

AIR 1943 (PC) 83 : 56 LW 593 (Gopal Das v. Sri Thakurji);

(2004) 7 SCC 107 (Dayamathi Bai (Smt) v. K.M Shaffi.);

2004-1-L.W. 728 : (2003) 8 SCC 752 (R.V.E Venkatachala Gounder v. A/M Viswesvaraswamy Temple); and

Swaran Singh v. State of Punjab, (1976) 4 SCC 369 : AIR 1976 SC 2304; — Referred to.

Applications allowed.

Mr. S. Sundar for Petitioners.

Mrs. Hema Sampath, SC for Mr. T.N Seetharaman for Respondents.

S. Vimala, J.:— Application No. 2006 of 2012 has been filed by the plaintiffs/Applicants to reopen the evidence on the side of the plaintiffs. Application No. 2007 of 2012 has been filed by the plaintiffs/Applicants to recall the plaintiffs for the purpose of adducing additional evidence. Application No. 2008 of 2012 has been filed by the plaintiffs/Applicants to permit the plaintiffs to file and mark the additional documents.

2. In order to understand the scope of the relief sought for in these three Applications, it is necessary to find out the remedy sought for in the suit.

3. The suit has b£en filed for a declaration that: a) the suit properties were/are properties held in trust for the benefit of the plaintiffs, by the first defendant, and that he had no right to alienate the same; (b) that defendants 2 to 23 have no right or title or interest on the basis of alienation made by the first defendant; (c) for accounts; (d) for possession and for other alternative relief.

3.1 The first plaintiff wanted to file the following documents, in additional evidence:—

(i) Plaint in C.S No. 4538 of 1993 on the file of High Court of Judicature at Bombay;

(ii) Written Statement dated 19.07.2000 filed by Vivek Goenka & Others in the suit in C.S No. 4538 of 1993;

(iii) Photo copy of the partnership deed, dated 30.06.1926;

(iv) Notice of motion in Chamber Application No. 256 of 1994, dated 25.01.1994;

(v) Counter affidavit to the notice of motion in Chamber Application No. 256 of 1994 dated 24.02.1994;

(vi) Copy of the order dated 05.12.1995 in Chamber Application No. 256 of 1994 attached with affidavit of Ashok Pradhan;

(vii) Copy of the reply dated 27.06.1994 in the notice of motion in Chamber Application No. 256 of 1994.

3.2 All these documents have been stated to have been marked as Exs. P-438, P-439, P-440, P-441, P-443, P-444 and P-445 in the proceedings before the High Court of Judicature at Bombay.

4. The Applications are opposed on the ground that these Applications have been filed belatedly and that those documents are not admissible in evidence.

5. In order to put both sides on focus, this Court directed both sides to file the memo with regard to relevancy, admissibility and method of proof of documents. Accordingly, both sides have filed the memo.

6. In order to appreciate the relevancy of documents, it is necessary to look into the brief facts of the case:—

6.1 The suit (at Bombay High Court) relates to a claim for partition made by brothers' children of the first defendant Ramnath Goenka, in which some of the parties in the present suit were also parties therein. In the said suit Vivek Goenka (D24 herein) has filed a written statement therein.

6.2 Defendant No. 24 in the present suit is the defendant No. 1 in the Bombay suit. The documents are stated to be certified xerox copies of the original documents (certified by the Bombay High Court and not certified copies of photo copies as contended by the defendants).

6.3 The first defendant therein (D-24 herein) is stated to have: (a) filed a written statement, (b) an objection petition to the notice of motion (Application No. 256 of 1994) and (c) made certain admissions with regard to the earnings of his father and mode of acquisition of property.

7. The defendant herein objected to the marking of documents on the following grounds:—

(i) The Bombay suit in C.S No. 4538 of 1993 was filed by relatives of Ramnath Goenka (D1) for the relief of declaration that the properties belong to Hindu Undivided family and for partition. The plaintiffs are not parties to the Bombay suit and therefore, those documents cannot be marked through the plaintiff.

(ii) Bombay suit was not taken up for trial and it was dismissed as withdrawn. Those documents were not proved in that suit. In other words, the rival contentions were not tested.

(iii) The documents produced from the Bombay suit are not public documents as contemplated under Section 74 of the Indian Evidence Act, 1872 (hereinafter will be referred to as ‘the Act’) and the certified copies are not to be received as satisfying Section 76. The contents of those documents were not proved as contemplated under Section 77 of the Indian Evidence Act.

(iv) The plaint and written statement are not public documents as held in AIR 1964 Patna 45 (Gulab Chand v. Sheo Karan Lall Seth). They cannot be admitted to prove the correctness of the statement contained therein, unless it is proved by direct evidence.

(v) Application, counter and the orders were at the interlocutory stage, and therefore, they cannot be relied upon.

(vi) The partnership deed, dated 30.06.1926, is only certified copies of photo copies. As they are xerox copies, it is not admissible in evidence, as per the decision reported in (2010) 8 SCC 423 (Shalimark Chemicals works Ltd. v. Surendra Oil and Dal Mills (Refineries)) (Supreme Court in para 15 of the Judgment remarked that the trial Court should not have marked as Exhibits the xerox copies of the certificates of registration of trademarks in the face of objections raised by the defendants).

8. The main objection taken by the defendants/respondents is that the documents are neither relevant nor admissible and therefore, those documents cannot be received in additional evidence.

9. The Indian Evidence Act follows the principle of exclusion and elimination. If all the facts which we come across in the shore-less sea of human experience are let on record, the judicial proceedings would be unwieldy and the real issues would be clouded. Therefore, evidence can be let in only with respect to: (a) facts in issue; (b) relevant facts and of no others.

9.1 Chapter II of the Indian Evidence Act deals with relevancy of facts. Under Section 3 a fact is said to be relevant to another, when the one is connected with the other, in any of the ways referred to in Sections 6 to 55 of the Act (dealing with relevancy of facts). The relevancy is fully explained in Sections 6 to 11 of the Act.

9.2 A fact in issue is a necessary ingredient of a right or liability. But a relevant fact is not so. The relevant fact merely renders probable the existence or non-existence of any component fact of a right or liability. Therefore, a fact in issue is called a principal fact, while a relevant fact is known as evidentiary fact.

9.3 The word ‘relevant’ means that any two facts to which it is applied or so related to each other that according to common course of events, one either taken by itself or in connection with other facts proves or renders probable the past, present or future existence or non-existence of the other. This is logical relevancy.

Admissibility and evidentiary value—

10. The value of a piece of evidence cannot affect its admissibility in any way (Woodroof, p. 128). Admissibility and the probative force of a piece of evidence are quite different things. When a document is to be proved and relied upon in evidence, there are three aspects to be considered by the Court, viz (i) the proof of the execution of the document, (ii) proof of the contents of the documents and (iii) the evidentiary value of the document as a whole a AIR 1981 Bombay 446 @ 457 (Zenna Sorabji v. Mirabelle Hotel Co. (P) Ltd.).

11. Now coming to the facts of the case, in order to decide the admissibility and mode of proof of documents, it is necessary to consider the decisions relied on both sides, which may help the Court to decide the issue.

12. The first contention of the learned counsel for the defendant/respondent is that, the plaintiff, being not a party in the Bombay suit, is not entitled to rely upon the documents filed in the Bombay suit. In support of the same, the following judgments, relating to Judgment not inter-partes, are relied upon:—

(i) 1922 AIR Madras 71 FB : 40 LW 316 (Tripurana Seethapathi Rao Dora v. Rokkan Venkannan Dora)

“…the relevancy of judgments is governed by Sections 40 to 43 of the Evidence Act and that a Judgment not inter partes is not evidence.

… Section 35 has no application to judgments and that a judgment which would not be admissible under Sections 40 to 43 of the Evidence Act would not become relevant merely because it contains a statement, as to a fact, which is in issue or relevant in a suit between persons who are not parties or privies.”

(ii) 1897 98 (2) CWN 501 (Tepu Khan v. Rojini Mohun Dass)

“A former judgment which is not judgment in rem nor one relating to matters of a public nature, is not admissible in evidence in a subsequent suit either as res judicata or as proof of particular point decided unless between the same parties or those claiming under them.”

12.1 Per contra, contending that the Judgment in a previous suit, though not inter-partes is admissible under section 13 of the Evidence Act, in proof of a transaction or in a particular instance in which the right in question was asserted and recognized or denied, the following decisions are relied upon by the learned counsel for the plaintiffs:—

(i) 1998-2-L.W. 310 : (1998) 3 SCC 331 (Tirumala Tirupati Devasthanams v. KM. Krishnaiah)

9. ……In Srinivas Krishna Rao Kango v. Narayan Devji Kango, [AIR 1954 SC 379], speaking on behalf of a Bench of three learned Judges of this Court, Venkatarama Ayyar, J. held that a judgment not inter parties is admissible in evidence under section 13 of the Evidence Act as evidence of an assertion of a right to property in dispute. A contention that judgments other than those falling under sections 40 to 44 of the Evidence Act were not admissible in evidence was expressly rejected. Again B.K Mukherjea, J. (as he then was) speaking on behalf of a Bench of four learned Judges in Sital Das v. Sant Ram, [AIR 1954 SC 606] held that a previous judgment no inter partes, was admissible in evidence under section 13 of the Evidence Act as a ‘transaction’ in which a right to property was ‘asserted’ and ‘recognised’. In fact, much earlier, Lord Lindley held in the Privy Council in Dinamoni v. Brajmohini, [[1902] ILR 29 Cal. 190 (198) (PC)] that a previous judgment, not inter partes was admissible in evidence under Section 13 to show who the parties were, what the lands in disputer were and who was declared entitled to retain them. ….”

(ii) ILR Kerala 1011 (Abdulla v. Kunhammad @ Ahamad) In Srinivas Krishna Rao Kango v. Narayan Devji Kango, [(1954) 67 L.W 515 : AIR 1954 SC 379]:—

“3. On the first of the contentions formulated above, it may be taken as settled by the pronouncements of the Supreme Court in Srinivai Krishna Rao v. Narayan Devji, AIR 1954 SC 379 and Sital Das v. Sant Ram, AIR 1954 SC 606, that the judgment in a previous suit, though not inter partes, is admissible under section 13 of the Evidence Act, in proof of a transaction or particular instance, in which the right in question was asserted and recognised or denied; it is therefore needless to refer to earlier cases on the subject of admissibi-lity of such judgments in evidence. But the finding of fact arrived at in the judgment on the evidence in the previous case, is not evidence of that fact in the later case: Gopika Raman v. Atal Singh, AIR 1929 PC 99. In another case, the Privy Council observed, that “the reasons upon which the judgment is founded are no part of the transaction and cannot be so regarded, nor can any finding of fact there came to, other than the transaction itself, be relevant in the present case”, Gobinda Narayan v. Shamlal, AIR 1931 P.C 89. ….”

(iii) AIR 1926 Nag 109 (Ramdhan v. Pursushottam):—

“6. ……It is no doubt true that the defendant was no party to that suit, but the judgment given in that suit, though not conclusive, is clearly admissible under section 13 of the Evidence Act, and is a very good and cogent piece of evidence in proof of the fact that the defendant had no right to the property sold by him to the plaintiff….”

12.2 The documents, sought to be marked, in this case, do not have any judgments which are ‘judgments not interpartes’. Perhaps, to impress upon the necessity of relying upon the underlying basic principles involved, while considering the admissibility of documents, these decisions ought to have been produced. This Court has only taken the underlying basic principles used in admitting ? judgment not inter-partes? for the purpose of admitting documents not inter-partes.

12.3 From the decision of the Hon'ble Supreme Court, which is binding upon all Courts, it is clear that ‘judgments not inter partes’ pronounced by a Court of competent jurisdiction in a suit in which the right in dispute had been asserted and either recognized or denied, are clearly admissible.

12.4 In the case on hand also, right to property is in dispute. Therefore, even though the plaintiffs are not parties in the Bombay Suit, the proceedings in the Bombay Suit are relevant to the extent indicated with reference to each of the documents.

13. It is the contention of the learned counsel for the defendants that the plaint and the written statement sought to be relied upon by the plaintiffs are not public documents and when the documents are not public documents, production of certified copy is not sufficient to prove the contents of the documents.

13.1 In order to appreciate this contention, it is necessary to peruse the definition of ‘Public Documents’ and the nature of proof required to rely upon a public document and the circumstances under which certified copies of public documents are admissible in evidence, as secondary evidence.

13.2 Section 74 of the Act defines ‘public documents’ as follows:—

74. Public documents:— The following documents are public documents.

(1) documents forming the acts or records of the acts?

(i) of sovereign authority,

(ii) of official bodies and tribunals, and

(iii) of public officers, legislative, judicial and executive, (of any part of India or of the Commonwealth), or of a foreign country;

(2) public records kept (in any State) of private documents.

13.3 Sections 75 and 76 of the Act, read as follows:—

“Section-75.-Private documents.?All other documents are private.”

“Section 76-Certified copies of Public Documents. - Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officers with his name and his official title, and shall be sealed whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies. Explanation - Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.”

13.4 The exceptional modes of proof of public document are laid down in Sections 76 to 78; the private documents may be proved, in the light of general provisions of the Act relating to proof of documentary evidence, contained in Sections 71 to 73 of the Act.

13.5 It is only a public document, which the public have the right to inspect, that the certified copies may be given in evidence; but it may well be that a document is ‘public’ within the meaning of this Act, and also one which is not open to inspection of the public, and of which, therefore no proof by certified copy may be given.

13.6 The meaning of and the circumstances under which secondary evidence is admissible, is highlighted in Section 63 of the Indian Evidence Act, which reads thus:—

“63. Secondary evidence:— Secondary evidence means and includes—

(1) certified copies given under the provisions hereinafter contained;

(2) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;

(3) copies made from or compared with the original;

(4) counterparts of documents as against the parties who did not execute them;

(5) oral accounts of the contents of a document given by some persons who has himself seen it. Illustrations

(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.

(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter if it is shown that the copy made by the copying machine was made from the original.

(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original although the copy from which it was transcribed was compared with the original.

(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine copy of the original, is secondary evidence of the original.

13.7 Contending that the plaint and written statement are not public documents and the certified copy of which cannot be marked to prove the contents, the defendants relied upon the decision reported in AIR 1964 Patna 45 DB (Gulabchand v. Sheokaranlall Seth), where-under it has been held as follows:—

“Sub-section (2) of Section 74 can in no way include a plaint. The plaint is neither an act nor the record of an act of any public officer. There can be no strength in the contention that when the plaint is presented and the Court makes an order admitting or registering it, the plaint becomes an act or the record of an act of a public officer presiding over the Court. At the most, it will become a part of the record maintained by the Court in that case after the plaint is admitted and registered, but that itself will not make it a public document. If it were, then anything filed in a case in a court of law either petitions or pleadings, private communications or documents which a party would file in a case would become public documents for the simple reason that they are on the record of a case in Court.”

13.8 Contending that the plaint and written statements are public documents and that certified copy would be admissible in evidence, the following decisions are relied upon by the plaintiff:

(i) (1940) 52 L.W 159 : AIR 1940 Mad 768 Katikineni Venkata Gopala Narasimha Rama Rao v. Chitluri Venkataramayya)

“22. As the learned Judges who have made the reference have pointed out, a plaint or a written statement has always been regarded by this Court as forming part of the record of a case and a public document of which an interested party may obtain a certified copy. If the argument, that an income-tax return is not a public document, but that the order passed thereon is, were carried to its logical conclusion, it would mean that no part of the record of a civil suit could be regarded as constituting a public document except evidence recorded by the Court or summonses or notices or interlocutory orders or the judgment in the case. In Bhagain Megh Banee Koer v. Gooroo Petahad Singh, (1876) 25 W.B 68 Garth, C.J and Birch J. expressly held that a petition which was the subject-matter of an order passed was part of the record in the suit, and I do not think that this can reasonably be doubted. In my judgment, it would be putting an unwarranted restriction on the words “documents forming the acts or re. cords of the acts” to say that they should be confined to those parts of an income-tax record which the Income-tax Officer has himself prepared and to exclude documents which he has himself called for or which have been admitted to the record for the purposes of the assessment.”

(ii) (2011) 162 PLR 82 (Pyare Lal v. Meher Singh):—

“4. First of all, it must be noticed that a certified copy of a plaint or written statement or a judgment filed in court are not confidential but to the extent to which certified copies could be obtained by parties to proceedings, as also by any third party, on giving reasons for seeking for copies, they are public documents.

A copy of plaint or written statement are private documents, but if they are filed in Court and retained as permanent records by a public officer, they partake the character of ‘public documents’. If a person has a right to inspect such a public document, the right to obtain a certified copy is provided under Section 76 of the Act. ….”

5. Unlike a document filed in a civil proceeding, the certified copy of which could be applied by a stranger only with the consent of person by whom it was produced, a copy of plaint or written statement could be obtained by even a stranger after the disposal of the case. The copy of the plaint and statement, which were exhibited in Court could, therefore, be relied on by a party as a public document and no further proof is necessary. The mode of obtaining certified copy of plaint, statement and judgment in judicial proceeding is contained in the High Court Rules contained in Vol. 1 V, Chapter 17, …….”

(iii) (2014) 4 ICC 209 (Walideen v. Alim Hassen):—

9. The learned lower court has also placed reliance on Shyam Gopal Bindal v. Land Acquisition Officer, 2010 (1) CCC 707 (SC) wherein following observations of the court below are noteworthy: “The Hon'ble Apex Court also in Shyam Gopal Bindal & others’ case (supra) has held that when the documents sought to be produced formed the very basis of the claim and their consideration was necessary for just decision of the case, then the additional evidence should be allowed.”

10. Citing Pyare Lal v. Mehar Singh, (2011-2) PLR 82 (P&H), it is claimed that certified copy of plaint is a public document and no further proof is necessary for proving the said document. It was also held therein that the court is bound to receive such document at the instance of the party producing the same.”

(iv) 1989 Crl. L.J 1724 (Jagdishchandra Chandulal Shah v. State of Gujarat)

“12. So far as the document at SI. No. 9 is concerned, it is the certified copy of the plaint filed against Mahobatsing Mansingh Jadeja by the complainant and it is a public document as it forms part of the record, as held by the High Court in the case of Shazada Mahomed Shahaboodeen v. Daniel Wedgeberry. reported in (1873) Beng LR (Appendix) 31 and therefore, that is also admissible in evidence for the purpose of proving the contents thereof. However, when the question arises with regard to the signature thereon, it will be required to be proved in the same manner in which execution of the document is to be proved.”

(v) AIR 1937 Pat 534 (Nand Kumar Sinha v. Emperor)

“7. ……The order-sheet is a public document being the record of an act of a public judicial officer and the presumption is that it is genuine. I would require evidence and not mere suggestion to justify its rejection.”

13.9 From the legal position enunciated in the above cases, it is clear that plaint and written statement have been held to be public documents, but the nature and mode of proof required towards proving the contents of documents is slightly different, so far as the plaint and written statement are concerned.

13.10 With regard to admissibility of plaint and written statement, as contended by the plaintiffs, it is the public document, once the plaint get registered and it is taken on file. But copies are not granted to all of them and copies are granted only to persons interested and on satisfaction to the Court that the person interested is entitled to the right to get information and therefore, once the Court issues copy it becomes public document and it is admissible in evidence. But the extent to which the document is admissible depends upon the stage at which those documents stands in the Court.

13.11 So far as the cases on hand are concerned, documents are not subjected to tests and therefore, once the document is admitted it will not amount to proving of contents of the documents. The plaint/written statement may be admissible in proof of fact that a particular suit was brought by particular person against someone on a particular allegation; but it cannot be admissible to prove the correctness of the statement contained therein, unless it is proved by direct evidence or by secondary evidence, as provided in the Indian Evidence Act.

14. So far as the partnership deed is concerned, it is contended by the learned counsel for the plaintiffs that it is a certified copy of the xerox copy and that, photocopy of a copy is not admissible in evidence under Section 65 of the Evidence Act. In support of the contention, the following decisions are relied upon:—

(i) (2010) 8 SCC 423 (Shalimar Chemical Works Ltd. v. Surendra Oil and Dal Mills)

“On a careful consideration of the whole matter, we feel that serious mistakes were committed in the case at all stages. The trial court should not have “marked” as exhibits the Xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants. It should have declined to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility the appellant, therefore, had a legitimate grievance in appeal about the way the trial proceeded. The learned single judge rightly allowed the appellant's plea for production of the original certificates of registration of trade mark as additional evidence because that was simply in the interest of justice and there was sufficient statutory basis for that under clause (b) of Order 41, Rule 27. But then the single judge seriously erred in proceeding simultaneously to allow the appeal and not giving the defendants/respondents an opportunity to lead evidence in rebuttal of the documents taken in as additional evidence. The division bench was again wrong in taking the view that in the facts of the case, the production of additional evidence was not permissible under Order 41, Rule 27. As shown above the additional documents produced by the appellant were liable to be taken on record as provided under Order 41, Rule 27(b) in the interest of justice. But it was certainly right in holding that the way the learned single judge disposed of the appeal caused serious prejudice to the defendants/respondents. In the facts and circumstances of the case, therefore, the proper course for the division bench was to set aside the order of the learned single judge without disturbing it insofar as it took the originals of the certificates of registration produced by the appellant on record and to remand the matter to give opportunity to defendants/respondents to produce evidence in rebuttal if they so desired. We, accordingly, proceed to do so. The judgment and order dated April 25, 2003 passed by the division bench is set aside and the matter is remitted to the learned single judge to proceed in the appeal from the stage the original of the registration certificates were taken on record as additional evidence. The learned single judge may allow the defendants/respondents to lead any rebuttal evidence or make a limited remand as provided under Order 41, Rule 28.”

(ii) AIR 1957 (Madras) 1 (DB) (Rama Gopal Naicker v. Muthukrishna Iyer)

“14. …With regard to Exhibit A-5 it has to be mentioned that it is not a registration copy. It purports to be a certified copy of the office copy of the sale-deed stated to have been issued by the Official Receiver in favour of the second defendant. It is therefore a copy of a copy. That being the case Exhibit A-5 is inadmissible in evidence. The original sale-deed has not been produced and the copy of the office copy cannot be taken to be a certified copy.”

(iii) AIR 2001 AP 394 Badrunnisa Begum… v. Mohamooda Begum…)

“5. ……The learned Counsel for the appellant however submits that photocopy of a copy cannot be admitted even as secondary evidence. …. So, in order to get the benefit under Section 65(a) three things have to be shown; (1) that the document is, or appears to be, in the possession or power of the person against whom the document is sought to be proved; (2) it is in possession of any person out of reach, or not subject to the process of the Court, or of any person legally bound to produce it; (3) that even after a notice under Section 66 the person who has its custody does not produce it. Section 66 lays down the mode of getting the document before the Court. Under this section the person who wants the document has to give a notice to the person in whose custody, the document is, and if no such notice is prescribed under law then a notice which the Court may consider reasonable. Therefore, Section 63 of the Evidence Act lays down what can be termed a secondary evidence and Section 65 lays down in which situations secondary evidence can be led. Section 65(a) does not in any way make a copy of a copy admissible in evidence as it is barred under Section 63.”

(iv) AIR 1999 Delhi 280 (Arati Bhargava v. Kavikumar Bhargava)

“There is another aspect of the matter. It is a well settled principle of law that a photocopy of a copy is not admissible in evidence under Section 65 of the Evidence Act. To the same effect are the observations of the Division Bench of the Madras High Court as reported in Ramgopal Naicker Muthukrishna Ayyar, AIR 1957 Madras 1.”

14.1 Generally, the copy of the xerox copy is inadmissible in evidence. But, so far as this case is concerned, it is the party, who is opposing the document himself, has relied upon the document, in the suit in the Bombay High Court. Therefore, it is not open to the defendants to object the document on the ground that it is a xerox copy. But, the nature of document, having not been proved, the partnership deed can be relied upon only for the limited extent of showing that the defendants themselves were in possession of such document and that it was sought to be filed in the Bombay suit, as a document.

15. The next issue to be decided is, whether the plaintiffs should have taken out these Applications, inviting separate orders on the admissibility of the document or the marking should have been left to the discretion of the learned Master.

15.1 A document can be admitted in evidence only when the witness, to whom it is put, admits its execution and its contents.

15.2 An objection as to the admissibility of documents may be classified into two classes: (i) an objection that the document (sought to be proved) is itself inadmissible in evidence; (ii) where the objection was not with regard to admissibility of document but with regard to mode of proof. In the first case, merely because a document is marked as exhibits an objection as to admissibility can be taken even at a later stage or even in appeal or in revision. In the later case, the objection should be taken then and there and it cannot be allowed at any stage subsequent to the marking of document. This proposition is a rule of fair play. The crucial test is whether an objection, if taken at an appropriate point of time, would have enabled the party to cure the defect and resort to such mode of proof as would be regular.

15.3 Pointing out the procedure to be followed while deciding admissibility and contending that the objection regarding admissibility can be raised at any time, the following Judgments are relied upon by the learned counsel appearing for the plaintiffs:

(i) 2002-1-L.W. (Crl.) 115 : (2001) 3 SCC 1 (Bipin Shanthilal Panchal v. State of Gujarat):—

“14. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the judge or magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.)”

(ii) 2013-2-L.W. 350 : 2013 (2) CTC 864 (G. Ramamoorthy v. M.S.R Sivakumar)

“10. Therefore, having regard to the law laid down by the Honourable Supreme Court reported in R.V.E Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P Temple, (2003) 8 SCC 752, the objection regarding the admissibility can be raised at any time and merely because a document was admitted in evidence, the other party is not deprived of his right to challenge the admissibility of the document at a later point of time stating that the document ought not to have been admitted in evidence having regard to the legal provisions and the document is inadmissible in evidence.”

16. With regard to stage, objection to admissibility and/or proof of document, which may be produced or tendered should be raised, the following decisions are relied upon by the learned counsel for the plaintiffs:—

Admissibility and proof of documents:

(i) 2008 (5) CTC 577 (FB) (Hemendra Rasikal Ghia v. Subodh Mody):—

The questions that are considered in this case are thus:—

“Whether objections as to admissibility of evidence, oral and documentary, should be decided upon when raised or whether decisions thereon can be deferred to a later stage? At which stage, objection to admissibility and/or proof of document which may be produced or tendered should be raised; considered and decided by Court?”

“92. In view of the above analysis of the statutory provisions and our discussion, we, accordingly, articulate our conclusions as follows:

Answer to Question-A:

As already noticed, (i) objection to the document sought to be produced relating to the deficiency of stamp duty must be taken when the document is tendered in evidence and such objection must be judicially determined before it is marked as exhibit;

(ii) Objection relating to the proof of document of which admissibility is not in dispute must be taken and judicially determined when it is marked as exhibit;

(iii) Objection to the document which in itself is inadmissible in evidence can be admitted at any stage of the suit reserving decision on question until final judgment in the case.

The Court trying the suit or proceedings as far as possible is expected to decide the admissibility or proof of document as indicated hereinabove. As we have already added a word caution that while exercising discretion judiciously for the advancement of the cause of justice for the reasons to be recorded, the Court can always work out its own modality depending upon the peculiar facts of each case without causing prejudice to the rights of the parties to meet the ends of justice and not to give the handle to either of the parties to protract litigation. The aim should always be to prevent miscarriage of justice and expedite trial, which is the dire need of the time.

Answer to Question-B:

The objection to the admissibility or relevancy of evidence contained in the affidavit of evidence filed under Order XVIII Rule 4 of C.P.C can be admitted at any stage reserving its resolution until final judgment in the case as held in Ameer Trading Corpn. Ltd. v. Shapoorji Data Processing Ltd.. (supra).

(ii) AIR 1943 (PC) 83 : 56 LW 593 (Gopal Das v. Sri Thakurji):—

“The endorsement means that the document is admitted in evidence as proved. Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of Appeal and then complain for the first time of the mode of proof. A strictly formal proof might or might not have been forthcoming had it been insisted on at the trial. In the present instance it does not appear that the objection was taken at. the proper time or that it would have been of any avail had it been taken”

(iii) (2004) 7 SCC 107 (Dayamathi Bai (Smt) v. K.M Shaffi.)

“R.V.E Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P Temple reported in [(2003) 8 SCC 752] to which one of us, Bhan, J., was a party vide para 20:

“20. The learned counsel for the defendant-respondent has relied on Roman Catholic Mission v. State of Madras, [AIR 1966 SC 1457] …. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as “an exhibit”, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. ……”

(iv) 2004-1-L.W. 728 : (2003) 8 SCC 752 (R.V.E Venkatachala Gounder v. A/M Viswesvaraswamy Temple)

“Order 13 Rule 4 of the CPC provides for every document admitted in evidence in the suit being endorsed by or on behalf of the Court, which endorsement signed or initialed by the Judge amounts to admission of the document in evidence. An objection to the admissibility of the document should be raised before such endorsement is made and the Court is obliged to form its opinion on the question of admissibility and express the same on which opinion would depend the document being endorsed as admitted or not admitted in evidence. In the latter case, the document may be returned by the Court to the person from whose custody it was produced.”

Objection to evidence.

16.1 It is the primary duty of the Court to shut out inadmissible evidence (S. 136). It is also the duty of the Counsels to object at once to the tendering of the inadmissible evidence. An omission to object to irrelevant evidence cannot make the evidence relevant. Here the distinction between: (a) objection to relevancy of evidence and (b) mode of proof must not be overlooked. The objection to relevancy can be taken at any time, but objection to the mode of proof must be taken at the first opportunity. Objection to mode of proof being a matter of procedure will be deemed to be waived if not raised in time. A party will be precluded from raising objection to mode of proof subsequently, on principles akin to those of estoppel, e.g, when a fact which is per se relevant, and when the contents of a document have been proved by secondary evidence when such evidence is not legally admissible, the other party cannot subsequently be allowed to object to this mode of proof. It is not the law that the evidence of an interested witness should be equated with that of a tained evidence or that of an approver so as to require corroboration as a matter of necessity (Swaran Singh v. State of Punjab, (1976) 4 SCC 369 : AIR 1976 SC 2304 @ 2310). Ulus, in short the question of relevancy is a question of law and may be raised at any time, but the question of mode of proof is one of procedure and can be waived.

16.2 The Application and the counter affidavit filed and the order passed thereon are at Interlocutory stage. Those documents are also admissible only to the limited extent of showing that the right to property was asserted. It will not amount to proof all the facts stated therein.

17. Before parting with this case, it is the duty of the Court to bring it to the attention of the parties concerned about the judgment of the Apex Court for speedy disposal, wherein it is stated that Court trying the suit or proceedings as far as possible is expected to decide the admissibility or proof of document as indicated hereinabove. As we have already added a word caution that while exercising discretion judiciously for the advancement of the cause of justice for the reasons to be recorded, the Court can always work out its own modality depending upon the peculiar facts of each case without causing prejudice to the rights of the parties to meet the ends of justice and not to give the handle to either of the parties to protract litigation. The aim should always be to prevent miscarriage of justice and expedite trial, which is the dire need of the time.

18. It is also appropriate to note the provisions under Order 13 Rule 3, which reads that the court may at any stage of the suit reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection.

19. In the result:

(i) All the Applications are allowed, subject to payment of costs of Rs. 10,000/- (Rupees ten thousand only), within a week, to the contesting defendants 25, 26 and 29 cumulatively payable by the plaintiffs to the defendants.

(ii) The documents are ordered to be received in evidence and the evidentiary value would be to the extent indicated above.

(iii) The learned Master is directed to give priority to this case as it is the long pending one.

VCJ/VCS