SCA/6198/2007 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6198 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No 2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the civil judge ? No ========================================================= JAGDISHBHAI NANUBHAI TEKRAWALA & 3 - Petitioner(s) Versus NIRANJANBHAI DAHYABHAI CHOWKSHI & 1 - Respondent(s) ========================================================= Appearance : MS KJ BRAHMBHATT for Petitioners : 1 - 4. MR PRABHAV MEHTA for Respondents ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 30/04/2008 ORAL JUDGMENT 1. By way of this petition under Article 227 of the Constitution of India, the petitioners-original plaintiffs have SCA/6198/2007 2/7 JUDGMENT prayed for an appropriate writ, order or direction, quashing and setting aside the order dated 2.2.2007 passed below Exh.121 and Exh.122 and the order dated 15.2.2007 below Exh.309 passed by the learned 3rd Additional Senior Civil Judge & JMFC, Surat in Special Civil Suit No.69/2004. 2. The petitioners-original plaintiffs have filed a Special Civil Suit No.69/2004 in the District Court at Surat against the respondents-original defendants for declaration and releasing the property etc. In the said suit the petitioners gave an application Exh.121 for exhibiting the documents stated therein. 2.1 It is the case on behalf of the petitioners that as the respondents did not respond to the same and therefore another separate application was submitted by the petitioners at Exh.122 and the respondents replied the said application vide Exh.127. That thereafter the trial court by order dated 2.2.2007 disposed of the said application below Exh.121 and Exh.122. 2.2 It is the case on behalf of the petitioners that as certain documents were given tentative exhibit numbers and certain SCA/6198/2007 3/7 JUDGMENT documents were refused to be exhibited at all, they gave an application Exh.309 and the trial court dismissed the said application vide order dated 15.2.2007. 2.3 Being aggrieved and dissatisfied with all the aforesaid orders passed below Exh.121, Exh.122 and Exh.309, the petitioners-original plaintiffs preferred the present petition under Article 227 of the Constitution of India. 3. Ms.Kalpana Brahmbhatt, learned advocate appearing on behalf of the petitioners-original plaintiffs has submitted that even with respect to those documents for which no objections were raised by the defendants, the trial court has either passed the order to give tentative exhibit numbers and/or not to exhibit the same at all. It is submitted that even with respect to those documents for which objections are raised, the same could have been directed to be exhibited subject to the admissibility of the same at the last stage in the final judgment. 3.1 She has heavily relied upon the decision of the Hon'ble Supreme Court in the case of BIPIN SHANTILAL PANCHAL VS. STATE OF GUJARAT AND ANOTHER reported in (2001) 3 SCC 1. By SCA/6198/2007 4/7 JUDGMENT making the above submissions, it is requested to allow the present Special Civil Application. 4. Mr.Prabhav Mehta, learned advocate appearing on behalf of the respondents-original defendants, while opposing the present Special Civil Application has submitted that, in the facts and circumstances of the case the trial court has not committed any error by giving tentative exhibit numbers to certain documents and therefore the impugned orders passed by the trial court is not required to be interfered with by this Court in exercise of powers under Article 227 of the Constitution of India. 5. Heard the learned advocates appearing for the respective parties. 6. It appears from the record that vide Exh.121 and Exh.122, the petitioners-original plaintiffs requested to exhibit certain documents, and it appears that, so far as some of the documents are concerned, the defendants have not raised any objection to exhibit the same. With regard to some of the documents for which objections are raised, the trial court has not exhibited the same. With respect to those documents for SCA/6198/2007 5/7 JUDGMENT which no objections are raised, there was no reason for the trial court to give tentative exhibit numbers as they were required to be straightway exhibited. So far as those documents for which the objections are raised, they can be exhibited with a rider that admissibility of the same can be considered and/or are required to be considered at the last stage in the final judgment. The dispute raised in the petition is not now res integra. In the case of Bipin Shantilal Panchal (supra), the Hon'ble Supreme Court has observed that 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. 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 of remoulded to give way for better substitutes which would help acceleration of trial proceedings. It is further observed by the Hon'ble Supreme Court that 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 SCA/6198/2007 6/7 JUDGMENT 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. It is further observed that even 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 and there is no illegality in adopting such a course. 7. Considering the aforesaid observations of the Hon'ble Supreme Court in the aforesaid decision with respect to those documents for which the objections are raised against exhibiting the documents, the trial court ought to have tentatively exhibited the same by noting the objections against such exhibiting and/or admissibility subject to such objection to be decided at the last stage in the final judgment. 8. Under the circumstances, the following order is passed. (i) With respect to those documents mentioned Exh.121 and Exh.122 for which no objection is given by the respondents herein – original defendants, the trial court is directed to straightway exhibit the same and give exhibit numbers. SCA/6198/2007 7/7 JUDGMENT (ii) With respect to those documents mentioned in Exh.121 and Exh.122 for which the objection is submitted by the respondents herein against exhibiting the same, the trial court is directed to tentatively exhibit the same noting the objection, if any, by the respondents herein-original defendants subject to such objections to be decided at the last stage in the final judgment. 9. The orders passed by the trial court passed below Exh.121, Exh.122 and Exh.309 are modified to the aforesaid extent, and as such, the order passed below Exh.309 is hereby quashed and set aside. Rule is made absolute accordingly. Interim relief, if any, granted earlier shall stand vacated forthwith. ( M.R. SHAH, J. ) syed/