1. Challenge is made in this petition under Article 227 of the Constitution of India to the order dated 7.12.2011,whereby the Court gave tentative exhibit to the document Mark 24/4, which has been produced through the deposition of power of attorney.
2. Learned advocate for the petitioners original defendants has objected to this tentative exhibit on the ground that there is no explanation coming forth in the deposition of the plaintiffs as to how he came in possession of such letter. When the very document is under challenge, this must not be allowed to be exhibited.
3. The Court has relied upon the case of Bipin Shantilal Panchal vs. State of Gujarat and another reported in AIR 2001 SC 1158. To negate the submissions, it would be apt to reproduce the relevant portion of this authority:-
"12. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the Court does not proceed further without passing Order on such objection. But the fall out of the above practice is this: Suppose the trial Court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or revisional Court, when the same question is re-canvassed, could take a different view on the admissibility of that material in such cases the appellate Court would be deprived of the benefit of that evidence, because that was not put on record by the trial Court. In such a situation the higher Court may have to send the case back to the trial Court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-moulded to give way for better substitutes which would help acceleration of trial proceedings.
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 re-canvassed 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."
4. It was essentially with the object that disputes between the parties can be adjudicated at a final stage and during the recordance of evidence, for every order of exhibit either party may not rush to the higher forum and, thereby hamper the proceedings further, the Supreme Court had introduced and permitted the concept of tentative exhibits.
5. As can be seen from the record, on the ground that such a plea can be raised at the time of final hearing, the Court, without sealing the fate of either side on the said issue, chose to give tentative exhibit to the document. This Court is of the opinion that there is no jurisdictional error nor is there any reason for this Court to entertain this petition under Article 227 of the Constitution of India. Resultantly, this petition is not entertained and the same is dismissed.
6. It is further being specified that this Court has not decided anything on merit and, therefore, outcome of this petition shall not prejudice either side and as it is further exhibited, at the time of final hearing, contentions raised by both the sides shall be appropriately dealt with.
(Ms.
Sonia Gokani, J. ) sudhir Top