SCA/10858/2008 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10858 of 2008 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 ========================================================= KESHUBHAI MOHANBHAI PATEL - Petitioner Versus MANHARBHAI RATILAL BACHKANI WALA & 11 - Respondents ========================================================= Appearance : MR MEHUL SHARAD SHAH for Petitioner. MR DC DAVE for Respondent(s) : 1 - 6. None for Respondent(s) : 7 - 12. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 01/09/2008 ORAL JUDGMENT 1. Rule. Shri D.C.Dave, learned advocate waives service of Rule on behalf of respondents. He is on caveat. With the consent of learned SCA/10858/2008 2/10 JUDGMENT advocates appearing for the respective parties, the petition is taken up for final hearing today. 2. By way of this petition under Article 227 of the Constitution of India, petitioner- original defendant No.1 has prayed for an appropriate writ, order or direction, quashing and setting aside the order passed by the learned 10th Additional Senior Civil Judge, Surat dated 12.8.2008 passed below Exh.1075 in Special Civil Suit No.263 of 2003 rejecting the application submitted by the petitioner-defendant No.1 praying to exhibit the documents Mark 165/10 to Mark 165/38. 3. In the suit filed by the respondents No.1 to 6 herein – original plaintiffs, the petitioner- defendant No.1 submitted the application Exh.1075 requesting to exhibit the documents Mark 165/10 to Mark 165/38 i.e. will, release deeds and cheques etc., submitting that the originals of the said documents are in possession of the SCA/10858/2008 3/10 JUDGMENT original plaintiffs, and though the petitioner- defendant No.1 issued notice to the plaintiff to produce the original of the said documents under Section 66 of the Evidence Act, the plaintiffs did not produce the same. It was also further submitted that in cross-examination of one of the plaintiff Shri Kalpeshbhai Manharlal Bachkaniwala, he has admitted that the will was executed by his grand-father and it was the registered will. He has also admitted that the release deed executed by the mother of plaintiff No.1 Gauriben and other sisters of plaintiffs in favour of the plaintiffs and also paid consideration to them by cheques. However, he has stated in cross-examination that though original wills are with the plaintiffs, but only upon the advice of the advocate the originals he will produce the same. Application Exh.1075 was moved to consider the photocopy of the said documents Mark 165/10 to Mark 165/38 as secondary evidence and to exhibit them and more particularly when the execution of the same have SCA/10858/2008 4/10 JUDGMENT been admitted by the plaintiffs. The said application came to be dismissed by the learned trial court by the impugned order dated 12.8.2008. 3.1 Being aggrieved and dissatisfied with the same, the petitioner-defendant No.1 has preferred present Special Civil Application under Article 227 of the Constitution of India. 4. Shri Mehul Sharad Shah, learned advocate appearing on behalf of the petitioner-defendant No.1 has vehemently submitted that the learned trial court has materially erred in not exhibiting the documents Mark 165/10 to Mark 165/38 as the originals of those documents are in possession of the plaintiff, and in spite of notice, they have not produced the originals on record. It is submitted that considering the decision of the Hon'ble Supreme Court in the case Bipin Shantilal Panchal vs. State of Gujarat and Another reported in 2001 (2) GLH 545, the SCA/10858/2008 5/10 JUDGMENT learned trial court ought to have given tentative exhibits to the aforesaid documents keeping the question with respect to the admissibility of the same open at the time of final hearing of the suit. It is submitted that even the will executed by the grand-father ought to have been straightway exhibited and therefore it is requested to allow the present petition. 5. Shri D.C.Dave, learned advocate appearing on behalf of the respondents has also relied upon the decision of the Hon'ble Supreme Court in the case of Bipin Shantilal Panchal (supra), and has submitted that, so far as four release deeds sought to be exhibited are on insufficient stamp and therefore, they cannot be even tentatively exhibited. It is submitted that even as per the decision of the Hon'ble Supreme Court in the aforesaid decision whenever there is an objection with respect to insufficiency of stamp, at the time of exhibiting the documents, such dispute/controversy is to be resolved at this SCA/10858/2008 6/10 JUDGMENT stage only and those documents cannot be given tentative exhibits, and therefore, it is submitted that, so far as four release deeds are concerned, they are not required to be tentatively exhibited. It is submitted that, so far as other documents are concerned, the same can be tentatively exhibited keeping the question with respect to admissibility of the same open at the time of trial, as held by the Hon'ble Supreme Court in the aforesaid decision. 6. Heard the learned advocates appearing on behalf of the respective parties. 7. Petitioner-defendant No.1 submitted an application Exh.1075 to consider the photocopy of the documents Mark 165/10 to Mark 165/38 as secondary evidence and to give exhibits to those documents. They are inclusive of will, cheques, release deeds etc. The objection on behalf of the original plaintiffs against exhibiting the four release deeds are concerned, they relate to SCA/10858/2008 7/10 JUDGMENT insufficiency of stamps and therefore they are not admissible in evidence. 7.1 In paragraph 14 in the decision of Bipin Shantilal Panchal (supra) the Hon'ble Supreme Court has observed as under: “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 SCA/10858/2008 8/10 JUDGMENT 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.)” 7.2 As held by the Hon'ble Supreme Court that whenever objections are raised against exhibiting of the documents the court may give tentative exhibit numbers to those documents and the dispute/question with respect to admissibility of the same be kept open for deciding the same at the time of trial. However, whenever the objection with respect to insufficiency of the stamp and thereby inadmissibility of evidence, the said dispute requires to be decided at the earliest and those documents are not required to be tentatively exhibited. Under the circumstances, except four release deeds, other documents can be given tentative exhibit numbers keeping the question open with respect to admissibility of the same at the time of trial, SCA/10858/2008 9/10 JUDGMENT and so far as objection against exhibiting the four release deeds, the same requires to be decided by the learned trial court at this stage. 8. Under the circumstances and for the reasons stated above and considering the decision of the Hon'ble Supreme Court in the case of Bipin Shantilal Panchal (supra), the application Exh.1075 is partly allowed and the impugned order passed by the learned trial court dated 12.8.2008 passed below Exh.1075 in Special Civil Suit No.263 of 2003 is hereby quashed and set aside to the extent that except four release deeds for which the objection is raised with respect to insufficiency of the stamps and thereby inadmissible in evidence, the learned trial court is directed to give tentative exhibit numbers to the documents Mark 165/10 to Mark 165/38(except four release deeds) and the question with respect to admissibility of the aforesaid documents is kept open and to be decided at the time of trial. If at the time of SCA/10858/2008 10/10 JUDGMENT trial the learned trial court comes to the conclusion that they are inadmissibile in evidence, the same shall be dealt with accordingly. If it is found and held that those documents which are given tentative numbers are admissible in evidence, they shall be dealt with accordingly. The learned trial court is directed to decide the question with respect to four release deeds and the admissibility of the same at this stage. 9. Rule is made absolute accordingly to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs. ( M.R. SHAH, J. ) syed/