SBCWP NO.4997/2006 – RAMESH CHANDRA AND ORS. V//S ADDITIONAL DIST. JUDGE AND ORS. :JUDGMENT DTD.15.9.2009 1/10 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL WRIT PETITION NO.4997/2006 Ramesh Chandra and ors. Versus Additional Dist. Judge and ors. PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Dr. Sachin Acharya, for the petitioners Mr.B.R.Mehta, for the respondents. DATE OF JUDGMENT : 15th September, 2009. REPORTABLE JUDGMENT 1. By this writ petition, the defendants have challenged the order dtd.7.8.2006 whereby the learned trial Court held that the issue as to the admissibility of the document in question, namely, the agreement on which respondents – plaintiffs had based their suit for specific performance, will be decided at the time of final hearing of the suit. 2. The defendants – petitioners have challenged the said order on the ground that the question of admissibility of evidence could not be postponed and deferred to be decided at the time of final hearing of SBCWP NO.4997/2006 – RAMESH CHANDRA AND ORS. V//S ADDITIONAL DIST. JUDGE AND ORS. :JUDGMENT DTD.15.9.2009 2/10 the suit itself and such question was required to be decided forthwtih by the learned trial Court. 3. The learned counsel for the petitioners – defendants Dr. Sachin Acharya, relying upon the decision of the Hon'ble Supreme Court in the case of R.V.E. Venkatachala Gounder V/s Arulmigu Viswesaraswami and V.P. Temple and anr. reported in (2003) 8 SCC 752 and later decision of this Court in the case of LRs. of late Sh. Chittar Mal V/s Addl. Civil Judge (SD) and ors. reported in 2005(1) DNJ (Raj.) 366 submitted that it was not the objection of the defendants as to only mode of proof of said document, namely, agreement in question, but objection was as to the admissibility of the evidence itself and therefore, the learned trial Court has fallen into error in postponing the decision on the said objection until final arguments of the suit itself. He submitted that reliance placed by the learned trial Court on the case of Jogindero Devi V/s Gurjant Singh reported in 2006 (1) RRT 258 is misplaced and in the said judgment, reliance upon the decision of Hon'ble Supreme Court in the case of Bipin Shantilal Panchal V/s State of Gujarat reported in 2001 (1) RLW (SC) 169 is also misplaced because in the case of Bipin Shanti Lal Panchal (supra) as quoted by the learned Single Judge in the aforesaid decision in th case of Jogindera Devi (supra), the Hon'ble Supreme Court held that objection about the admissibility of the SBCWP NO.4997/2006 – RAMESH CHANDRA AND ORS. V//S ADDITIONAL DIST. JUDGE AND ORS. :JUDGMENT DTD.15.9.2009 3/10 document can be raised at the time of cross-examination and such objection is required to be decided forthwith. 4. On the side opposite, Mr. B.R. Mehta, learned counsel appearing for the plaintiffs – respondents reiterated the reasons given in the impugned order and submitted that the said objection can be decided at the time of final arguments and the learned trial Court was justified in relying upon the decision of this Court in the case of Jogindero Devi (supra). 5. Having heard the learned counsels and upon perusal of the judgments cited at the Bar, this Court is of the opinion that there is considerable force in the submissions made by the learned counsels for the petitioners – defendants. It is considered appropriate to reproduce para 19 and 20 of the aforesaid cited supreme Court decision in the case of R.V.E. Venkatachala Gounder (supra) hereunder: “19. Order 13 Rule 4 CPC provides for every document admitted in evidence in the suit being endorsed by or on behalf of the court, which endorsement signed or initialled by the Judge amounts to admission of the document in evidence. An objection to the admissibility of the document should be raised before such SBCWP NO.4997/2006 – RAMESH CHANDRA AND ORS. V//S ADDITIONAL DIST. JUDGE AND ORS. :JUDGMENT DTD.15.9.2009 4/10 endorsement is made and the court is obliged to form its opinion on the question of admissibility and express the same on which opinion would depend the document being endorsed as admitted or not admitted in evidence. In the latter case, the document may be returned by the court to the person from whose custody it was produced. 20. The learned counsel for the defendant – respondent has relied on Roman Catholic Mission V/s State of Madras in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as the admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely SBCWP NO.4997/2006 – RAMESH CHANDRA AND ORS. V//S ADDITIONAL DIST. JUDGE AND ORS. :JUDGMENT DTD.15.9.2009 5/10 because a document has been marked as “an exhibit”, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as as exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the eviddence, for two reasons; firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of SBCWP NO.4997/2006 – RAMESH CHANDRA AND ORS. V//S ADDITIONAL DIST. JUDGE AND ORS. :JUDGMENT DTD.15.9.2009 6/10 the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court.” 6. In the latter decision in the case of LRs. of late Shri Chittar Mal V/s Addl. Civil Judge (SD) (supra) following the aforesaid Supreme Court decision, this Court held that objection as to the admissibility of the document has to be decided immediately. Similar view was expressed by the coordinate Bench of this Court in the case of Jagdish Prasad V/s Hanuman Das and ors. - SBCWP No.398/2007 decided on 1.5.2008 and in the case of Bharat R. Desai V/s Naina Mohanlal Bhal reported in AIR 2005 (Bombay) 38. SBCWP NO.4997/2006 – RAMESH CHANDRA AND ORS. V//S ADDITIONAL DIST. JUDGE AND ORS. :JUDGMENT DTD.15.9.2009 7/10 7. It appears from the aforesaid legal position that it will depend upon the nature of the objection of the defendants as to whether such objection is as to the admissibility of the evidence itself or as to the mode of proof of such evidence by other parties. If the objection is to the admissibility of the evidence itself, that goes to the root of the matter, then such objection is required to be decided forthwith and immediately. The words used by the Hon'ble Supreme Court in the aforesaid case of R.V.E. Venkatachala Gounder (supra) are “then and there”, that means that without deciding such objection, the trial Court cannot proceed further. From a bare perusal of the objection raised by the defendants in the present case vide their application (Annex.4) dtd.7.8.2006, it would appear that the defendants had raised the question of admissibility of such evidence, namely the agreement on the basis of which the suit for specific performance was filed, the same being unregistered and unstamped, the said agreement was not admissible in evidence in accordance with the provisions of stamp law, reference to which was made in para 3 of the said application. 9. The learned counsel for the respondents – plaintiffs also could not make serious rebuttal of this argument of learned counsel for the petitioners that this objection is not the objection as to the admissibility of the said evidence, but is as to the mode of proof of said evidence. In view of the objection being of the category (i), out SBCWP NO.4997/2006 – RAMESH CHANDRA AND ORS. V//S ADDITIONAL DIST. JUDGE AND ORS. :JUDGMENT DTD.15.9.2009 8/10 of two categories specified by the Hon'ble Apex Court, it goes without saying that such objection as to the admissibility of the document was required to be decided forthwith then and there and could not be postponed until the time of final arguments of the suit itself. In view of aforesaid legal position, the judgment of the learned Single Judge of this Court in the case of Jogendero Devi (supra), wherein in para 13 of the judgment, the learned Single Judge held that “all objections during the recording of evidence before the Commissioner are required to be recorded only by the Commissioner for the purpose of having a decision of the Court at the stage of the arguments, obviously final arguments, therefore, after the amendment of the CPC, the procedure can be followed as provided in Order 18 Rule 4 CPC, the validity of which has also been upheld by the Hon'ble Apex Court, with great respects, is distinguishable and cannot be followed because in the present case in hand, firstly does not relate to the evidence being recorded by the Commissioner and secondly under Order 18 Rule 4(1) C.P.C., which applies in the present case, clearly states in proviso that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed alongwith the affidavit shall be subject to the orders of the Court. 10. In Jogindero Devi's case, the Court was dealing with Order 18 Rule 4(4) and not Order 18 Rule 4(1) C.P.C. and it may be noted that SBCWP NO.4997/2006 – RAMESH CHANDRA AND ORS. V//S ADDITIONAL DIST. JUDGE AND ORS. :JUDGMENT DTD.15.9.2009 9/10 the proviso in two sub-rules is differently worded. The proviso to Order 18 Rule 4(1) C.P.C. ends with the words “subject to the orders of the Court” whereas, proviso to Order 18 Rule 4(4) C.P.C. ends with the words “decided by the Court at the stage of arguments”. At what point of time such decision or order under both these provisions has to be made by the Court is not specified in the statute itself. Therefore, it would depend upon the nature of the objection itself. The said position of law has been crystalized by the Apex Court in R.V.E. Venkatchala Gounder 's case (supra), wherein two categories of objections have been specified, namely, objection as to the admissibility of evidence and objection as to mode of proof of the evidence, and we have to go by that proposition of law laid down by the Apex Court. Such orders of the Court have to be passed immediately upon such objection as to the admissibility of the evidence when it is raised and pronouncement on such objection cannot be postponed until the time of final arguments on the suit itself. This would even otherwise be incongruous to postpone the decision on the objection as to the admissibility of the evidence which goes to the root of the matter, until the time of final arguments of the suit. That would be putting the clock back at square one at that stage if the evidence is found to be inadmissible by the Court. Like the question of jurisdiction and limitation being required to be decided at the first instance, the question of admissibility of evidence are also required to be decided forthwith and immediately. Postponing the SBCWP NO.4997/2006 – RAMESH CHANDRA AND ORS. V//S ADDITIONAL DIST. JUDGE AND ORS. :JUDGMENT DTD.15.9.2009 10/10 decision on such objection would act contrary to the object with which the CPC was amended in the year 2002, namely, to expedite the trial. Therefore, in the considered opinion of this Court, the learned trial Court has fallen into error in postponing the decision on the objection as to the admissibility of evidence until final arguments on suit itself and therefore, the impugned order dtd.7.8.2006 cannot be sustained. 10. Consequently, this writ petition is allowed and the impugned order dtd.7.8.2006 is set aside and the learned trial Court is directed to decide the question of admissibility of said evidence forthwith and immediately. The defendants, after such pronouncement of the trial court on the issue, shall have right to cross-examine the plaintiff's evidence in accordance with law. No order as to costs. (Dr.VINEET KOTHARI)J. Item No.11 Ss/-