1. The writing on the page of document produced before the trial court in Regular Civil Suit No. 84 of 1986 has not been given exhibit, on the various counts.
2. Challenge in this petition preferred under Article 227 of the Constitution of India is on the ground that there is no finding of the trial court. The document under challenge is not produced from its proper custody. In the event of production from proper custody admission of such document is a must, and consequently there is also presumption available under section 90 of the Indian Evidence Act.
3. Learned advocate appearing for the petitioner has urged that there is absence of findings of the Court that this is coming from a proper custody. It is further urged that Court ought to have given tentative exhibit to the said document, relying on the judgment of Bipin Shantilal Panchal Vs State of Gujarat and Anr reported in 2001(1)GLH 545 so as to ensure that the parties do not challenge such orders at an interlocutory stage. Reliance is also placed in the case of Hardhan Mahatha and Ors Vs. Dukhu Mahatha reported in AIR 1993 Patna 129 in which principle underlying Section 90 is reflected that if a document, thirty years old or more, is produced from proper custody and is, on its face, free from suspicion, the Court may presume that it has been duly executed and attested.
4. The reason for incorporating Section 90 of Indian Evidence Act is founded on necessity and convenience. It is extremely difficult and sometimes impossible to prove handwriting, signature and execution and attestation of ancient documents after lapse of many years.
5. And, if the two conditions enumerated in Section 90 of Evidence Act are fulfilled, in relation to documents the execution and attestation if are not denied, the necessity of formal proof does not arise.
6. Learned advocate appearing for the respondent has urged that the Court has dealt with the said issue to deny the admission to the said document as exhibited. Writing at page 4 has not been admitted and details given are cogent enough, that this the Court should not interfere.
7. Learned advocate fairly admitted that on the principal aspect the Court is silent.
8. Although the judgment rendered in the case of Bipin Shantilal Panchal Vs. State of Gujarat reported in 2001(2) GLH 545, directions have been rendered by the Apex Court for speedy completion of criminal trial, as usually there is a delay due to challenge to the interlocutory orders. Due to such practice, the trial court does not proceed further without passing order on objection regarding admissibility of any material in evidence.
9. Trial Court would wait for a long time when the parties choose to go before higher Courts. The Supreme Court laid down simplified procedure to be followed by trial court. The Court is expected to proceed further without passing any order on such objection. The Court was essentially concerned that much time is wasted when such issue is before the Appellate Court or the Revisional forum. And therefore, such practice was found to be substituted whereby whenever the objection is raised regarding the admissibility of any material, on noting such objection and marking the same tentatively, objection can be dealt with at final stage if the objection raised is found sustainable, the evidence recorded can be excluded from considering as there are no illegality in adopting such practice as that would not only save time of the trial court, but, before the Superior Court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial court, it can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal.
10. This ratio is also adopted in some of the judgments while dealing with civil matters. At present, without much delving on such subject, as the issue before this Court is simpler, it can be noted that the entire document which is produced before this Court is admittedly 30 years old the writing of page 4 is of the year 1962. Of course, in the order impugned, the Court has considered all the points and also noted that even if the document is held to be ancient under the law, such writing is not found admissible as there is absence of findings of proper custody in the said order. If there is such findings of proper custody, the provision of Section 90 would be attracted.
11. Assuming that once having exhibited such document, the admissibility is required to be questioned and the trial court can choose not to accept the contents thereof, in absence of any such finding of the proper custody, parties are relegated to the trial court for it to consider afresh that aspect. At this stage, learned advocate for the petitioner ensures to adduce other and further evidence for proving the contents of the year 1962.
10. Resultantly, this petition succeeds to the above extent.
12. It is noted to be mentioned that this opportunity afforded to the petitioner shall not tantamount to this Court opining anything on merit on relevancy.
13. Trial Court shall be free to decide entire aspect afresh after affording an opportunity to the parties.
(Ms. Sonia Gokani,J.) mary//