IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1643 of 2004 SHIVNATH PANDEY & ANR Versus PASHUAPTI MISHRA & ORS ----------- 18 30.9.2008 Heard Counsel for the parties. In the opinion of this Court, technicality may have its own place under civil law but that override the binding interest of justice. The admitted position in this case is that earlier there was a proceeding between the plaintiffs-petitioners and the defendants-opposite parties under Section 133 of the Code of Criminal Procedure. The petitioners infact wanted to bring that show-cause reply filed by the defendants-opposite parties in the Section 133 Cr.P.C. proceedings and for that purpose, initially their prayer was also allowed by the court below by an order dated 28.1.2003 and document was taken on record by way of admitting it in evidence and marking it as Exhibit-11. Subsequently, on protest by the defendants-opposite parties, such recording of exhibit was struck off by an order dated 21.11.2003 purportedly on the ground that the defendants-petitioners were not heard before passing of such order. Thereafter, the Court below had passed an order dated 13.5.2004 refusing to review the order dated 21.11.2003 and subsequently another prayer of 2 the petitioner almost to the same effect under Section 151 C.P.C. was rejected by the impugned order dated 22.7.2004 against which the present civil revision application has been filed. Mr. Yogesh Chandra Verma, learned senior counsel would contend that there is no dispute with regard to the document in question and the plaintiffs- petitioners wanted to bring the same on record as it was the pleading of the defendants-opposite parties in an inter-party proceedings under Section 133 Cr.P.C., which could not have been objected to by the defendants-opposite parties. He would, therefore, submit that such document be taken on record even by directing the plaintiff-petitioners to pay any reasonable amount of cost for the delay and resultant inconvenience caused to the defendants-opposite parties. Mr. B. Pandey, learned counsel for the opposite parties has submitted that as a matter of fact, the document in question relating a proceeding under Cr.P.C. and is not at all relevant can hardly have a binding effect in a civil suit relating to the question of declaration of title by the civil court. He would also submit that the last order dated 13.5.2004 having been not challenged by the petitioners their present Civil Revision Application against the impugned order is not 3 maintainable specially when the same also does not suffer from any jurisdictional error. In the opinion of this Court, the petitioners’ submission of the petitioner must be accepted on a simple proposition that the document which is sought to be exhibited had in fact been exhibited and later on the same was removed from the records on a protest made by defendants-opposite parties. Normally, if this Court was satisfied that such an objection was reasonable and that the document in question ought to have not been taken on record by way of evidence, it would not have allowed such prayer of the petitioner but then even the Counsel for the opposite party is not in a position to deny the existence of the admitted document in an inter- party proceedings and therefore, admissible in evidence. Once the document is admissible in evidence, the only issue that the defendants-opposite parties was not heard by the Court below at the initial stage may not be very important especially when now in four rounds of litigations before the Court below, the defendants- opposite parties have been given sufficient opportunity to place their case and in course of such hearing, they have not been able to at least persuade the Court below that the document in question was in admissible. That being so, this Court would allow this 4 application and set aside the impugned order and direct the Court below to take the document namely the Exhibit-11 back on record of course after being furnished proof of deposit/payment of a cost of Rs. 7,500/- by the petitioner to the contesting defendants- opposite parties who are represented by Mr. B. Pandey, Advocate before this court. With the aforementioned observations/directions, this civil revision application is allowed. Rsh (Mihir Kumar Jha, J.)