1 WP No.4550/10 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.4550 of 2010 Narayan Shankar Shinde ... Petitioner versus Tata Housing Development Co.Ltd. ... Respondent ... Mr.Madhukar Kalzunkar with Rajni Bhor and Sharmila Deshmukh i/b Navdeep Vora & Associates for the petitioner. Mr. Mayur Khandeparkar with Ms.Sapna Rachure i/b T.N.Tripathi for the respondent. CORAM : D.G. KARNIK, J. DATED : 4th August 2010 P.C. 1. Rule returnable forthwith. By consent, taken up for hearing. 2. By this petition, petitioner challenges the order dated 17 December 2009 passed by the learned Judge, Small Causes Court rejecting the application of the petitioner at Exhibit 33 for allowing the production of a document sought to be produced through a witness and 2 WP No.4550/10 the order dated 22 April 2010 passed in revision by the appellate Bench of the Small Causes Court confirming the order of the trial Judge. 3. Petitioner is the original plaintiff. On 4 November 2009, he made an application for summoning M/s.Vodafone Essar Limited as a witness with a direction to produce a copy of an agreement and other relevant documents mentioned in the application in the court through its representative. The application was granted and the Court directed issuance of a witness summons by the order passed on the same day. On 17 December 2009, the representative of M/s.Vodafone Essar Ltd attended the Court along with the documents which were summoned. It appears that the Court was not inclined to accept the documents on record and therefore, petitioner made another formal application in writing making two prayers. He firstly prayed that the documents which were brought by the witness should be allowed to be produced on record. Secondly, he prayed that the petitioner should be permitted to cross examine the witness. Both the prayers were rejected by the trial court. On revision, revisional court has confirmed the order. Aggrieved petitioner is before this court. 3 WP No.4550/10 4. Mr.Khandeparkar, learned counsel for the respondent appeared in support of the order submitted that the documents which were brought by the witness were not relevant for the purpose of trial and therefore, trial Court has rightly rejected the application and permitted the witness to go back without keeping the documents on record. In my view, the order rejecting the production of documents by the witness and returning them is unsustainable. In Bipin Shantilal Panchal Vs. State of Gujarat AIR 2001 SC 1158, the Hon’ble Supreme Court has observed:- (13) 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. But the fall out of the above practice is this : Suppose the trial Court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally, if the appellate or revisional court, when the same question is re-canvassed, could take a different view on the admissibility of that material in such cases the appellate Court would be deprived of the benefit of that evidence, because that was not put on record by the trial Court. In such a situation the higher court may have to send the case back to the trial Court for 4 WP No.4550/10 recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. 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 or re-moulded to give away for better substitutes which would help accelaration of trial proceedings. (14) 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 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) 5 WP No.4550/10 5. When a document is sought to be tendered in evidence and its production or admissibility in evidence is objected on any ground, whether on the ground that the production is late or that the documents is not relevant or any other ground (except the objection relating to the inadmissibility of the documents on the ground of insufficiency of stamp) the Court may not decide the objection there and then. The Court would generally allow the documents to remain on the record of the court and record further evidence including the evidence about the proof of it. The Court can then decide the objection at the time of final judgment. This procedure would obviate the requirement of a remand on appeal in the event the appellate court comes to the conclusion that the production was wrongly rejected and/or document was wrongly excluded from evidence. If the document is returned to the party producing it or to the witness producing it, the appellate court even if it comes to the conclusion that the document is relevant and ought to have been considered would be helpless because the document is not before the appellate court. The appellate Court would then have to remand the matter to the trial court for recalling the document and/or witnesses who wanted to depose as to the document and record their 6 WP No.4550/10 evidence. This would result in delay which could be avoided by keeping the document on record and also recording any evidence relating thereto. Consequently, the impugned order, so far as it relates to rejection of the documents and returning the documents to the witness, needs to be set aside. 6. It must however be clarified that the witness was summoned only for the production of documents. A person who is summoned as a witness only for production of documents is not required to give oral testimony. In the absence of any oral testimony and examination in chief, there is no occasion for either of the parties to cross examine the witness. Hence, the prayer made in the application of the petitioner for permission to cross-examine the witness was rightly rejected by the trial court. 7. Learned counsel for the petitioner submitted that witness was summoned not only for production of a document but also for giving oral deposition. I have perused the application, copy of which is filed at page 81A to the petition. By that application, the petitioner had prayed for issuance of a witness summons directing the representative of M/s.Vodafone Essar Ltd, to remain present with the copy of the 7 WP No.4550/10 agreement and other relevant documents thereto to give evidence. The words “to give evidence” read in the context in which they appear only meant to tender the document in evidence and not to remain present for the purpose of oral deposition. Oral deposition ordinarily can be given only by a person conversant with the facts. The prayer was to sent through a “representative” meaning any representative for production and the documents could have been sent even through a peon who may not at all concerned or conversant with the facts of the case. Consequently, there was no question of allowing the oral deposition of the witness and his cross examination. Furthermore, the petitioner could not have been allowed to cross examine his own witness even before declaring him hostile. 8. If the petitioner required to examine any employee of M/s.Vodafone Essar Ltde to give oral deposition, the petitioner would have named whom he wanted to examine. However, in order to obviate any possibility of a remand, if the petitioner hereafter makes an application within four weeks, naming a particular employee of M/s.Vodafone Essar Ltd to remain present in the court for the purpose of deposition, the Court shall issue such witness summons whereupon petitioner would be permitted to examine, and not cross examine 8 WP No.4550/10 witness unless the witness is declared as hostile. Hence, following order is passed:- O R D E R 9. Writ Petition is partly allowed. 10. The order of the trial court rejecting the petitioner’s application for production of the documents is rejected. The Court shall re-summon the witness and allow the production off the documents prayed for. If the petitioner makes an application within four weeks hereof for summoning any particular employee/officer of M/s.Vodafone Essar Ltd or any other person to be examined as a witness for oral deposition, the Court shall issue witness summons to such witness also and permit the petitioner to examine him as a witness. (D.G. KARNIK,J.)