1 S.B. CIVIL WRIT PETITION NO.418/2009 (Moti Lal vs. LRs. Of Gullu Khan & Ors.) Date of order : 04th February, 2010 HON'BLE DR.JUSTICE VINEET KOTHARI Mr.M.R.Singhvi, for the petitioner. Mr.R.R.Nagori, for the respondents. This writ petition is directed against the order dated 21.11.2008, whereby the learned trial court allowed the application of the defendant under Order 8 Rule 1(3) CPC for taking on record the judgment of the criminal court passed by the Additional Chief Judicial Magistrate NO.2, Jodhpur in Cr.Case No.77/98, State vs. Moti Lal. Learned counsel for the petitioner-plaintiff Mr. M.R.Singhvi submitted that since the judgment of the criminal court does not fall within the ambit and scope of section 43 of the Evidence Act, therefore, it cannot be relied upon and being inadmissible in evidence could not be allowed to have been taken on record. He relied upon the judgment of this Court in the case of Onkarmal & Anr. Vs. Banwarilal & Ors., AIR 1962 Raj. 127 and recent judgment of the Hon'ble Supreme Court in case of Seth Ramdayal Jat vs. Laxmi Prasad, 2009 AIR SCW 4587 and also a decision of this Court in the case of Abhishekh Fabrics vs. Rajesh Kumar in S.B.Civil Writ Petition No.8197/2008 decided on 25.11.2008. 2 On the other hand, Mr. Nagori contended that in view of the decision of the Hon'ble Supreme Court in the case of Anil Behari Ghosh vs. Smt. Latika Bala Dassi & Ors., AIR 1955 SC 566, wherein the Hon'ble Supreme Court held that though the judgment of the criminal court had a limited relevance only to show that there was a trial resulting in conviction and sentence in a particular case, it is open for the plaintiff to argue that the contents of that judgment as such wholly cannot be relied upon. This is a matter of argument, which is kept open by the learned trial court in the impugned order in para 4.2 itself. He, therefore, justified the allowing of the application under Order 8 Rule 1(3) CPC. The Hon'ble Supreme Court in Anil Behari Ghosh vs. Smt. Latika Bala Dassi & Ors. held as under: “The learned counsel for the contesting respondent suggested that it had not been found by the lower appellate court as a fact upon the evidence adduced in this case, that Girish was the nearest agnate of the testator of that Charu had murdered his adoptive father, though these matters had been assumed as facts. The courts below have referred to good and reliable evidence in support of the finding that Girish was the nearest reversioner to the estate of the testator. If the will is a valid and genuine will, there is intestacy in respect of the 3 interest created in favour of Charu if he was the murderer of the testator. On this question the courts below have assumed on the basis of the judgment of conviction and sentence passed by the High Court in the sessions trial that Charu was the murderer. Though that judgment is relevant only to show that there was such a trial resulting in the conviction and sentence of Charu to transportation for life, it is not evidence of the fact that Charu was the murderer. That question has to be decided on evidence.” In view of the aforesaid legal position, which does not stand over-ruled by the later decision of the Hon'ble Supreme Court in Seth Ramdayal Jat vs. Laxmi Prasad, where the Apex Court held that the judgment of the criminal court shall not be admissible in a civil suit, however, what would be admissible is the admission made by the parties in previous proceedings does not hold that the judgment of the criminal court is irrelevant altogether, therefore, the judgment of the criminal court, even though having a limited relevance, cannot be said to be inadmissible in evidence and, therefore, allowing application under Order 8 Rule 1 (3) CPC at the stage of plaintiff's evidence in the present suit cannot be said to be erroneous. Learned counsel for the petitioner Mr.Singhvi submitted that the conviction of the learned trial 4 court in the aforesaid criminal case has already been stayed by the appellate court. He will be free to raise this contention before the trial court during the course of his arguments. Consequently, this Court does not find any ground to interfere with the order in the present petition, the same is devoid of merit and it is hereby dismissed. (DR.VINEET KOTHARI), J. Item No.14 m.asif/-