Animadverting upon the order dated 14.08.2008 made in I.A.Nos.9393 and 9394 of 2008 in O.S.No.6017 of 2007 passed by the learned III Assistant Judge, City Civil Court, Chennai, these civil revision petitions are focussed.
2. Despite listing the case repeatedly, no one appeared on either side.
3. Niggard and bereft of details, the relevant facts, which are absolutely necessary and germane for the disposal of these civil revision petitions would run thus:
The revision petitioner/plaintiff filed the suit in O.S.No.6017 of 2007 seeking the following relief:
- to grant a permanent injunction restraining the defendant or her men, agent or any body acting under them from interfering with the plaintiff's peaceful possession and enjoyment of the suit property situated at Old No.12 A, New No.30, 21st Street, Jagannatha Nagar at Jai Nagar, II Main Road, Arumbakkam, Chennai 600 106.
The defendants/respondents entered appearance and filed written statement. After framing of issues, the trial commenced; PW1 was examined in chief. It appears the Court posted the matter for cross-examining PW1 by the defendants. Whereupon the plaintiff filed I.A.Nos.9393 and 9394 of 2008 for re-opening PW1's evidence and to recall PW1 for further chief examination so as to mark certain documents. The court after hearing both the sides, dismissed the I.As. Being aggrieved by and dissatisfied with such an order passed by the lower Court, these revisions have been filed on various grounds, inter alia thus:
The lower court without application of mind and understanding the real purpose of the two petitions simply dismissed them.
4. Hence, in these circumstances, I proceeded to decide the matter on merits.
5. The factual circumstances are such that PW1 was examined in Chief and the matter was posted for cross. However, the plaintiff had chosen to continue with the chief examination of PW1 for the purpose of marking certain documents. But the lower court interpreted the I.A for reopening as though it is a surplusage in view of the plaintiff's side having been not closed. Such a view is unwarranted in the facts and circumstances of this case. The real purpose of the I.A filed for re-opening is only to reopen the chief examination and continue with the chief examination and the court was not expected to take such a draconian view of the matter relating to the marking of the documents during continuation of chief examination. The observation made by the court is totally antithetical to the well settled proposition of law as found enunciated in the decision reported in AIR 2001 Supreme Court 1158 (Bipin Shantilal Panchal vs. State of Gujarat and another). An excerpt from it would run thus:
"13. 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.)
14. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence-taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial court, 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. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses."
6. The lower Court in the last part of its order unwarrantedly remarked as though PW1 was not a photographer and hence the photos could not be marked through them. The marking of the documents is different from proving it. As such, without appreciating the implication, the lower court dismissed both the applications. No doubt, unless negatives are filed and marked, the photos cannot be taken as proved. But subject to objection, the documents could be marked and while disposing of the case, it is for the Court either to accept such evidence or not.
7. Hence, I could see no merit in the common order passed by the lower Court and accordingly the common order passed in I.A.Nos.9393 and 9394 of 2008 is set aside and the I.As.are allowed. PW1 shall be allowed to continue the chief examination and the documents marked subject to the objections of the defendant and at the time of disposal of the suit, the Court can give its finding relating to the reliability or otherwise of the documents so marked.
8. With the above observation, both these civil revision petitions are allowed. No costs. Consequently, the connected miscellaneous petition is closed.
vj2 13.02.2009 Index : Yes Internet:Yes To The III Assistant Judge, City Civil Court, Chennai. G.RAJASURIA,J vj2 C.R.P.(PD).Nos.3396 & 3397 of 2008 13.02.2009