@JUDGMENTTAG-ORDER
1. The above revision is filed against the order dated 13.6.2000 made in O.S.No.1584 of 1992 wherein a varthamanam letter was sought to be marked as an exhibit through the first defendant, which was objected to by the plaintiffs and the objection was upheld thereby the first defendant was not allowed to mark the document. The said order of the trial Judge is tested before this Court in the present revision as to its correctness.
2. The brief facts of the case for the clarity are as follows:
Plaintiffs 1 and 2 and the first defendant are sons and the 2nd defendant is the daughter of one Ganga Naidu. They divided their property among themselves by a partition deed dated 21.3.1989. In the said partition, the father, Ganga Naidu was allotted 22 cents for his life. On the same day i.e. on 21.3.1989, his sons and the daughter of the said Ganga Naidu executed a varthamanam letter, whereby the said Ganga Naidu was permitted to alienate or encumber the property allotted to his share to meet out his medical expenses, if the same was not met out by his sons. The said Ganga Naidu sold the entire-extent of 22 cents allotted to him on 4.3.1989 pursuant to the varthamanam letter to the third defendant on 6.9.1990. When that being so, the plaintiffs Narayanasamy and lagannathan, two sons of Ganga Naidu, on 10.3.1992, filed the suit for partition of the 22 cents, which was allotted to their father in the earlier partition deed dated 21.3.1999 and subsequently sold by him on 6.9.1990 to the third defendant. In the said suit, the varthamanam letter alleged to have been executed by all the sons and daughter of the said Ganga Naidu, was sought to be marked through the first defendant, who is also one of the sons of said Ganga Naidu besides the plaintiffs. That has been objected to by the plaintiffs on the ground that the document is an unregistered document and the said document is created only for the purpose of the suit and that if the said document is accepted, that would alter the very character of the partition deed dated 21.3.1989. On consideration, the learned trial Judge upheld the objection raised on behalf of the plaintiffs and held that if the varthamanam letter is allowed to be marked that would belittle the partition deed and accordingly, rejected the marking of the said document. The said order is now disputed in the present revision.
3. Mr.Rajagopalan, learned Senior Counsel appearing for the petitioner, has submitted that this sort of rejection of the document from being marked at the threshold has been considered by the Supreme Court and the Apex Court deprecated the practice and concluded that generally any document, sought to be marked be allowed to be marked if the said document is relevant to the suit, subject to the objection, if any by the other side. The dispute as to the admissibility has to be decided only at the argument stage. He further argued that the entire sale which is in favour of the third defendant, the petitioner herein is based on the varthamanam letter, and if the same is not allowed to be marked, the third defendant cannot defend his case. The learned Senior Counsel appearing for the petitioner relied on the decision of the Supreme Court in Bipin Shantilal Panchal v. State of Gujarat and Anr., 2001 (3) SCC 1, in support of his contention.
4. The learned counsel appearing for the respondents has submitted that the first defendant, through whom the varthamanam letter was sought to be marked, has not preferred the revision petition and the revision at the hands of the third defendant is not maintainable.
5. Learned counsel for the respondent further contended that the document under dispute creates a right in the property and as per law it requires registration. But the same is an unregistered one. It cannot be looked into and no amount of evidence could be let in to support the document. He sought support to the above contention to the judgment of this Court in A.C.Lakshmipathy and another v. A.M.Chakrapani Reddiar and Anr., 2001 (1) CTC 112 : 2001 (I) MLJ 1. He further contended that the document under dispute would come within the exception to the general procedure propounded by the Supreme Court in the decision in Bipin Shantilal Panchal v. State of Gujarat and another, 2001 (3) SCC 1.
6. I heard the arguments of the learned counsel on eimer side.
7. The question to be decided in the revision is whether the reasons given by the trial Court for rejecting the marking of the document are sustainable in law.
8. Under Rule 3 of Order 13, C.P.C. the Courts are vested with a discretion to reject any document, which it considers irrelevant or otherwise inadmissible at any stage of the suit, of course, by recording the reasons for the same. In the recorded reasons for rejecting the document in question, the trial Court has stated that the document is neither irrelevant nor inadmissible in evidence but only stated that the document if admitted would belittle the value of the partition deed. For rejecting the document being marked in evidence me Court has to conclude with reasons as to relevancy, or admissibility of the document. But as stated supra, no such conclusion has been arrived at by the trial Court, while passing the order.
9. Further, in the judgment reported, the Supreme Court evolved a procedure to be followed by me trial Courts, whenever an objection is raised regarding me admissibility. To put it in the words of the Supreme Court, the procedure evolved runs as follows:-
"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 fallout 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 the revisional Court, when the same question is recanvassed, could take a different view on 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 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 realized through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or remoulded to give way for better substitutes which would help acceleration 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.)
15. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence-taking stage, would not be wasted on account of raising such objections and the Court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior Court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial Court, can determine the correctness of the view taken by the trial Court regarding that objection, without bothering to remit the case to the trial Court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.
16. We, therefore, make the above as procedure to be followed by the trial Courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence."
10. The other contention that the document comes within the exception stated in the above judgment also cannot be tenable to uphold the impugned order because no such exercise has been made by the trial Court in its order. The respondents are not totally deprived of their right to question or object to the document but the same is kept at the time of hearing of the case.
11. The other judgment relied on by the learned counsel for the respondents reported in
12. In the result, the order of the trial Court is set aside and the trial Court is directed to follow the procedure evolved by the Supreme Court and the Civil Revision Petition is allowed. Consequently, the connected C.M.P. is closed. No costs.
