Objections To Admissibility Of Secondary Evidence Can Be Decided At Judgment Stage, Piecemeal Trial At Pre-Argument Stage Not Necessary: Orissa HC

A Single Judge Bench of Justice Krushna Ram Mohapatra observed,

"It appears that the objection with regard to mode of admission of the document was raised, which is marked as exhibits by filing the instant petition. Since the learned trial Court has kept the objection open to be decided at the time of argument no prejudice will be caused to the Petitioners. Further, once a document has been exhibited with objection the same cannot be expunged from the evidence of the party unless circumstances thereto are established."

Brief Facts:

A civil suit was 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 that it in no way affects the right, title and interest and possession of the plaintiffs and Defendant Nos. 5 to 8 as well as for permanent injunction. PW-1, while leading evidence, exhibited certain documents, which were marked with objection raised by Defendant Nos. 1 and 4 (instant petitioners). Subsequently, the petitioners filed an application to unmark and expunge the aforesaid exhibits. The said petition being rejected by the Court below, was assailed in this petition.

Contentions of the Petitioner:

Mr. Manmaya Kumar Dash, counsel appearing for the petitioner challenged the order on the ground that the said exhibits are secondary evidence being certified copies of registered sale deeds, mortgage deeds as well as information sheet showing correlation of Settlement and Hal plots. He argued 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 not having been done, the aforesaid exhibits are not admissible in evidence and are required to be expunged and unmarked.

He further contended 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 expunge a document at any stage of the suit, which is inadmissible in evidence. He highlighted that the Trial Court, while adjudicating the petition, failed to appreciate the same and rejected the petition on the ground that there is no provision under CPC to unmark any document, which has already been marked as exhibit.

He 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. He challenged such finding 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 v. Anita Beri & Ors. and Jagmail Singh & Anr. v. Karamjit Singh & Ors.

He further relied upon Ballava Devi @ Gajendra & Ors. v. Babaji Charan Gajendra & Ors. in which it was ruled that Trial Court should decide the question as to the admissibility of the documents marked as exhibits (with objection) before commencement of argument and thereafter proceed with the case in accordance with law.

Contentions of the Opposite Parties:

Mr. Maheswar Mohanty, counsel appearing for the opposite parties contended that since the documents have been marked as exhibits with objection, the said objection can be taken care of at the time of hearing of the suit, if submission is made with regard to admissibility of the said document. Prima facie, it appears that petitioners have objection to the "mode of admission" of aforesaid exhibits in evidence. As the Trial Court has already observed in the impugned order that objection raised by Defendant Nos. 1 and 4 regarding acceptance of the documents are still pending for consideration and will be taken care of at the stage of hearing, the petitioners cannot raise any grievance to the same at this stage.

Thus, he argued, the Trial Court has committed no error in holding that the contentions of the petitioners shall be taken into consideration in the judgment itself. To buttress his arguments, he relied on Bipin Shantilal Panchal v. State of Gujarat & Anr. and R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami.

Court's Observations:

The Court noted that the petitioners have prayed for expunging and unmarking the documents on the ground of non-adherence to the due procedure of law to produce secondary evidence. Section 65 of the Evidence Act prescribes the procedure to lead secondary evidence. It held that in order to produce secondary evidence, foundational evidence for the same has to be led by the party who seeks admission of secondary evidence. Whether the plaintiffs have laid foundational evidence to adduce secondary evidence can be ascertained by assessing the evidence laid as well as materials on record.

Further, it noted that the petitioners appear to have challenged the "mode of admission" of the document in evidence. Since objection has already been raised with regard to admissibility of the aforesaid exhibits, it held, the same can be taken care of at the time of final adjudication of the suit.

The Court sought to distinguish the observations made in Ballav Devi (supra) that Trial Court should decide the question as to admissibility of documents marked exhibits with objection before commencement of argument and thereafter proceed with the matter in accordance with law. It held,

"It depends upon facts and circumstances of each case. But, ordinarily, dealing with the objections to the admissibility of a document at any stage before argument may lead to piecemeal trial, which is deprecated in the case of Bipin Shantilal Panchal (supra). It is held therein that 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 remoulded to give way for better substitutes which would help acceleration of trial proceedings. The objection raised by the Petitioners can also be considered in the final judgment itself, if raised at the stage of argument of the suit."

Consequently, the Court held that Order XIII Rule 3, CPC has no applicability in the case in hand. Accordingly, the petition was dismissed being devoid of merits.

Case Title: Babita Satpathy @ Mishra v. Sitanshu Kumar Dash & Ors.

Case No.: CMP No. 530 of 2022

Judgment Dated: 3^rd August 2022

Coram: Krushna Ram Mohapatra, J.

Counsel for the Petitioner: Mr. Manmaya Kumar Dash, Advocate

Counsel for the Respondents: Mr. Maheswar Mohanty, Advocate

Citation: 2022 LiveLaw (Ori) 117