IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 17TH FEBRUARY 2009 / 28TH MAGHA 1930 WP(C).No. 29084 of 2008(K) -------------------------- OS.365/2004 of MUNSIFF COURT-II, KOZHIKODE- .................... PETITIONER(S): --------------- PREMI BHASKAR, AGED 57 YEARS, W/O. LATE KODIPURATH BHASKARAN, A.K.M. PARAMBU, PUTHIYANGADI AMSOM DESOM, KOZHIKODE. BY ADV. SRI.K.M.FIROZ RESPONDENT(S): --------------- 1. T.V. SREEDHARAN, AGED 38 YEARS, KELAPPAN, THEKKEVEETTIKANDI VEEDU, MELOOR AMSOM, CHELIYA DESOM, KOYILANDY TALUK. 2. RAJAGOPALAN NAIR, AGED 55 YEARS, S/O. CHATHUTTY NAIR, VALANGATTU, VENGERI AMSOM DESOM, KOZHIKODE. ADV. SRI.E.NARAYANAN FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 29084/08 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT FILED BY THE PETITIONER HEREIN IN O.S.NO.365/2004 DATED 17.6.2004 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT-II, KOZHIKODE EXT.P2: COPY OF THE CHIEF AFFIDAVIT DATED 6.2.2008 FILED BY THE PETITIONER BEFORE THE PRINCIPAL MUNSIFF COURT-II, KOZHIKODE IN OS.NO.365/2004. EXT.P3: COPY OF I.A. AND THE AFFIDAVIT IN SUPPORT OF THE I.A. DATED 21.7.2008 FILED BY THE PETTIONER IN O.S.NO.365/2004 BEFORE THE PRINCIPAL MUNSIFF COURT-II, KOZHIKODE. EXT.P4: COPY OF THE ORDER IN I.A.NO.2828/08 IN O.S.NO.365/04 DATED 23.7.2008 PASSED BY THE PRINCIPAL MUNSIFF COURT-II, KOZHIKODE. K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.29084 of 2008 --------------------------------------------- Dated this the 17th day of February, 2009 JUDGMENT The Writ Petitioner filed O.S.No.365/04 on the file of the Munsiff Court, Kozhikode for declaratory relief and injunction. Her case is that the property in question belonged to her husband Bhaskaran. He executed a settlement deed in favour of the plaintiff in 1996. Document No.1079/1997 was executed by the plaintiff in favour of her husband. Later, a document in 1997 was executed by the plaintiff's husband in favour of the first defendant styling the document as a sale deed. The plaintiff prayed for a declaration that the document executed in favour of the first defendant is not a sale deed, but, it is only a security for loan transaction. 2. The suit was posted for trial. The plaintiff filed proof affidavit (Chief affidavit) in lieu of her examination in chief. Seven documents were listed in the list of documents appended to the proof affidavit. Before commencement of cross examination of the plaintiff, the defendants objected to the marking of those documents. They contended that those documents are not executed by the plaintiff or in her favour and WPC No.29084/2008 2 therefore, the documents cannot be marked. The court below apparently took the view that the documents could not be marked. Thereupon, the plaintiff filed I.A.No.2828/08 stating in detail the nature of the documents, as to who executed the documents, in whose favour they were executed and the necessity of producing those documents. The plaintiff contended that all these documents are admissible in evidence and it is not necessary to examine any other person for the purpose of proving the same. The examination of the plaintiff and the production of the documents would constitute proof of these documents, according to the plaintiff. The defendants contended that the documents cannot be marked and the mere production of the documents by the plaintiff would not constitute proof of the same. 3. The court below passed an order dated 23rd July 2008 holding that the petitioner can get the documents marked through the witnesses to the documents and she can take steps for citing those persons as witnesses to prove the execution of the documents. The court below dismissed the application (I.A.No.2828 of 2008) filed by the plaintiff. It was noticed that the counsel for the petitioner/plaintiff submitted that she is not WPC No.29084/2008 3 ready and willing to take steps to examine the attesting witnesses to the documents. Probably, carried away by the submission, the court below dismissed the application filed by the plaintiff. The order in I.A.No.2828 of 2008 is challenged in the Writ Petition. 4. At the time when the proof affidavit is filed, a party may produce documents, some of which may be admissible in evidence while some others may not be admissible. The court can consider the objection to the admissibility of the documents and take a decision thereon. The question of probative value of the documents is open for consideration at any stage of the proceedings. To avoid lengthy arguments, sometimes, the court may mark certain documents for identification and relegate the question of admissibility of the documents to a later stage. The difficulty would arise only when the admissibility of a document is not challenged at the time of admission of the same. When a document is admitted in evidence without any challenge as to its admissibility, a party to the suit cannot later challenge the admissibility of the same. Still, he can raise contentions regarding the probative value of the same at any time. In the case on hand, even according to the defendants, some of the WPC No.29084/2008 4 documents can be proved by calling the attesting witnesses or calling such other witnesses who can prove the documents. Whether the plaintiff is ready to do so is left to her. If a document is not properly proved, the defendant can point out the same at the time of arguments. In the facts and circumstances of the case, I am of the view that the documents can be marked ‘subject to objection and subject to proof’ if any. That means the defendants would be entitled to challenge the admissibility of the documents and also contend that a particular document is not proved in accordance with law. Marking the document as aforesaid with liberty to the defendants to raise contentions as mentioned above would meet the requirement for the present. Accordingly, the order passed by the court below is set aside. The documents in question shall be marked subject to objection and subject to proof, if any. It is also made clear that if there is a contention for any of the parties that a particular document is not admissible because it is not properly stamped, the court shall consider the same before marking the document. K.T.SANKARAN, JUDGE csl