1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 627 OF 2009 M/s Krishna Construction Co. & Anr. .. Petitioners V/s M/s Siddharaj Builders & Developers & ors. .. Respondents Mr. M.S. Lagu for the petitioners. CORAM : D.G. KARNIK, J. DATE : 28TH JUNE 2010 P.C. : 1. Heard learned counsel for the petitioners. None present for the respondents though served. 2. By this petition, the petitioners challenge the order dated 26 August 2008 passed by the learned Civil Judge, Senior Division, Kalyan rejecting the application of the petitioners for de-exhibiting the documents. 3. The respondents produced certain documents in the suit and also filed affidavit in lieu of examination in chief and made a reference to the documents filed in the affidavit in lieu of examination in chief. Thereafter, the learned Judge exhibited the documents without calling for the say of the 2 petitioners. The petitioners thereafter made an application for de-exhibiting the documents on the ground that the documents were not proved and also on the ground that some of the documents were photo copies and not the originals. Ground for production of the secondary evidence was not made out and, therefore, the documents which were in the nature of secondary evidence could not have been exhibited. 4. It is a misconception that exhibiting of document means that the document is proved. Proof of a document and marking the document as an Exhibit in a suit are two different things. Often, during the course of cross examination of a party, the opposite party shows a document to the to the former so as to put certain questions on it. To illustrate, take a case where the plaintiff files a suit for recovery of money alleged to have been advanced by him on a promissory note alleged to have been executed by the defendant. Often the promissory note is shown to the plaintiff by the advocate for the defendant in the cross examination and a suggestion is made/put to him that it does not bear the signature of the defendant. At that stage, the Court often marks the document as an exhibit for the purpose of its identification especially where more than one similar documents are on record. This 3 action of marking the document as an exhibit is purely done for the purpose of identifying the document. Marking a document as an exhibit is often a ministerial act performed for the purpose of identifying the document and and not necessarily to indicate that the document is proved. This practice is prevalent in the subordinate courts for years. Some times, of course, the court does not exhibit the document unless it is proved, but only is marked as an “article” in the suit for identification. This practice is also in vogue in some courts. The second practice is of course better as it avoids confusion. On account of these two separate practices followed, the parties have come to believe that exhibiting of a document is proof of the document. 5. Merely because the documents have been exhibited, that would not affect the right of the petitioners-defendants to show to the Court at the time of the arguments that the documents are not proved in accordance with law and are not admissible in evidence. 6. With these observations, the writ petition is rejected summarily. (D.G. KARNIK, J.)