MANU/MH/1268/2008

Equivalent/Neutral Citation: 2009(74)AIC 546, 2008(6)ALLMR352, 2008(6)BomC R519, 2008(5)C TC 577, 2008(6)MhLj886, 2009(3)RC R(C ivil)1,
2009(1)RC R(Rent)249

IN THE HIGH COURT OF BOMBAY

W.P. Nos. 623 and 1092 of 2005, Admiralty Suit No. 31 of 1995, Suit No. 3681 of 1996
and Testamentary Suit No. 19 of 1999
Decided On: 16.10.2008
Appellants: Hemendra Rasiklal Ghia
Vs.
Respondent: Subodh Mody
Hon'ble Judges/Coram:
Swatanter Kumar, C.J., V.C. Daga and V.M. Kanade, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: P.S. Parikh and Sujata Mahadgat, Advs. in W.P. No.
623 of 2005, H.M. Advani, Adv. in W.P. No. 1902 of 2005, A.M. Vernekar, Adv. in
Admiralty Suit No. 31 of 1995, A.C. Sampat, Adv. in Suit No. 3681 of 1996 and V.R.
Dhond, Adv., i/b., Federal and Rashmikant, Advs. in Test. Suit No. 19 of 1999
For Respondents/Defendant: N.Y. Gupte, Adv. in W.P. No. 623 of 2005, S.G. Aney, Sr.
Counsel and S.V. Mhatre, Adv. for Respondent Nos. 1 and 3 in W.P. No. 1902 of 2005,
R.M. Patne, A.G.P. for Respondent No. 4 in W.P. No. 1902 of 2005,V.C. Kotwal, Adv. in
Admiralty Suit No. 31 of 1995 and Zal Andhyarujina, Adv.,i/b., R. Kantawala, Adv. in
Test. Suit No. 19 of 1999
JUDGMENT
V.C. Daga, J.
1. The question presented in these cases require us to resolve two conflicting lines of
precedents on the one hand, as the Court stress that "it is necessary for Court to decide
about admissibility of documents before they are exhibited in evidence". On the other,
some of the learned Judges of this Court have no less categorically said that
admissibility of evidence and proof of document should be reserved until judgment in
the case is given.
Contextual Facts:
2. It is not necessary to sketch the detailed contextual facts of all cases placed before
us. Suffice it to refer two sets of precedents reflecting conflicting opinions giving rise to
the present reference.
In Writ Petition No. 1902/05, the petitioners, who are original defendants, have
objected to the order dated 12th January, 2005 by which the learned trial Judge has
marked 126 documents as exhibits with the following directions:
All the documents relied upon by the plaintiffs in the list of documents from Sr.
No. 1 to 126 are marked as Exhibits subject to production and proof thereof,
under the Evidence Act.

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The above order has been made in respect of the documents tendered along with
affidavit of evidence filed by the respondents (original plaintiffs). The admissibility has
been objected by the petitioners (original defendants)
3 . It was the principal contention of the learned Counsel for the petitioners that the
objection to the admissibility of these documents which were mainly books which refer
to religious practice of a particular sect, are so voluminous that it is not possible for the
petitioners to determine which document should be made subject of cross-examination
and which may not, having regard to the fact, the Court has exhibited the said
documents tentatively subject to proof.
The learned Counsel for the petitioners submitted before the learned single Judge that
the cross-examination as regards all documents would be fruitless, in case it is
eventually held that the documents are inadmissible. Therefore, the submission of the
learned Counsel was that it was imperative and also in accordance with the procedure
prescribed by law that the admissibility of these documents ought be decided at the
stage at which the objection to their being exhibited is taken.
4. In the another writ petition, being Writ Petition No. 623 of 2005, the petitioner is a
defendant. He has been sued for damages in respect of certain allegedly defamatory
statements. The petitioner therein has objected to the admissibility and relevance of the
evidence tendered by the respondent in the examination-in-chief by way of affidavit
under Order XVIII, Rule 4 of the Code of Civil Procedure ("C.P.C." for short). The trial
Court ruled that the question whether or not a particular statement is relevant or
admissible cannot be gone into before cross-examination of the witness and can be
considered finally at a later stage.
Being aggrieved by the above order, the petitioner invoked writ jurisdiction of the
learned Single Judge and pressed into service the grounds similar to those in Writ
Petition No. 1902/2005.
5 . According to the learned Counsel, pending decision as to the admissibility and
relevance of the statements in the affidavit of evidence, it was difficult for the petitioner
(original defendant) to decide whether to cross-examine the witness as to those
statements, which were objected to as inadmissible.
One view, relied upon by the learned Counsel for the petitioners in the above petitions
was as reflected in two decisions of the learned single Judges of this Court, one
rendered by Shri R.M.S. Khandeparkar, J. (as he then was) in Durgashankar v. Babubhai
MANU/MH/0061/2003 : AIR2003Bom487 and the other rendered by Dr. D.Y.
Chandrachud, J. in Bharat R. Desai v. Naina M. Bhal MANU/MH/0040/2004 :
AIR2005Bom38 . In these cases, having regard to the provisions of Order XIII and
Order XVIII of Civil Procedure Code the two learned single Judges have held that while
allowing the parties to lead evidence in the form of affidavits, if objected to, the
admissibility of documents must be decided by the Court before the documents are
exhibited in evidence and that decision cannot be postponed to a later stage such as the
final disposal of the case. These judgments relied upon the judgments of the Supreme
Court referred to therein.
6. The other view relied upon by the learned Counsel for the respondents in both these
petitions was as reflected in the decisions of a learned single Judge of this Court in
Boman P. Irani v. Manilal P. Gala MANU/MH/0831/2003 : [2004]267ITR555(Bom)
decided by Shri S.J. Vazifdar, J. wherein the learned single Judge relied upon the
observation of the Supreme Court in Bipin Shantilal Panchal v. State of Gujarat AIR

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2001 SC 1158, reiterated in another judgment in the case of State v. Navjot Sandha
MANU/SC/0396/2003 : (2003)6SCC641 ; wherein the Court was pleased to hold that
the documents in question may be taken on record and marked as exhibits tentatively
subject to the objections raised by the defendants for decision at the last stage in the
final judgment on the preliminary issue. A similar view, albeit in relation to the
evidence recorded by a Commissioner has been expressed by another single Judge, Shri
S.U. Kamdar, J. (as he then was), in Oil and Natural Gas Corporation Ltd. v. FPU Tahara
and Anr. Notice of Motion No. 1609 of 2005 in Admiralty Suit No. 54 of 1999 decided
on 24-6-2005 (unreported).
7. Having regard to the conflicting views of the learned single Judges of this Court and
having regard to the importance of question, learned single Judge of this Court (Shri
S.A. Bobde, J.) found it necessary to refer the following question for decision by a
larger bench in accordance with Rule 7 of Chapter I of the Bombay High Court
(Appellate Side) Rules.
Whether objections as to the admissibility or mode of proof of evidence, oral
and documentary, should be decided upon when raised or whether decisions
thereon can be deferred to a later stage?
Before turning to the question referred, it is necessary to recapitulate the rival
submissions canvassed before us.
8. Rival Submissions:
Mr. D.S. Parikh, learned senior Counsel appearing with Mrs. Sujata Mahadgad
for the petitioner (in W.P. No. 623/05) in his well search submissions reiterated
the view taken by the learned single Judges in the cases of Durgashankar
(supra) and Bharat R. Desai (supra) and urged that the provisions of Order XIII
of Civil Procedure Code and the Civil Manual are indicative of the legal position
that the objection to the admissibility, relevancy or proof of documents
produced in evidence should be decided at the time when such documents are
tendered in evidence and should not be left for decision at the stage of final
arguments in the suit.
9 . Mr. Parikh submitted that the Supreme Court has held in the case of R.V.E.
Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple and Anr.
MANU/SC/0798/2003 : AIR2003SC4548 that under Order XIII, Rule 4 of Civil Procedure
Code every document admitted in evidence in the suit has to be endorsed by the Court,
which endorsement required to be signed or initialled by the Judge amounts to
admission of the document in evidence. That an objection to the admissibility of the
document should be raised before such 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 the
evidence.
10. Mr. Parikh while canvassing the effect of Order XVIII, Rule 4 of Civil Procedure
Code submitted that juxtaposition and the context of the proviso of Sub-rule (1) of Rule
4 of Order XVIII indicates that the question of admissibility and proof of the documents
filed along with the affidavit of examination-in-chief should be decided by the Court,
when the affidavit of examination-in-chief is taken on record by the Court. While
placing reliance on proviso to Sub-rule (4), he submits that the said Sub-rule is also
indicative of the two stages at which the admissibility, relevancy and proof of
documents have to be considered, viz.; (i) the stage when documents are tendered or

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produced with the affidavit of examination-in-chief of a witness, and (ii) the stage when
documents are tendered or produced in the course of cross-examination and re-
examination of a witness. According to him, the proviso to Sub-rule (1) of Rule 4 lays
down that proof and admissibility of documents filed by a witness along with his
affidavit of examination-in-chief shall be decided by the Court, before the next step is
taken that of appointment of the Commissioner by the Court for recording the cross-
examination and re-examination of the witness.
11. In his submission, after the Commissioner records the cross-examination and re-
examination of the witness, including the objections raised by either party during the
course of such examination, the Commissioner submits his report to the Court. Such
objections have to be decided by the Court "at the stage of arguments" as provided in
the proviso to Order XVIII, Rule 4(4) of Civil Procedure Code.
Mr. Parikh, after having described the role of provision of Order XVIII, Rule 4 of Civil
Procedure Code, went on to reiterate that it is a settled principle of law that question of
admissibility should be decided then and there. He pressed into service the views
expressed by Wardroof and Amirali in Law of Evidence 17th Edition (Volume 1 Page
674) to buttress his submissions.
12. Mr. Parikh also referred to some of the judgments of the Privy Council, the Hon'ble
Supreme Court and various High Courts including this Court in support of his
submission, the detailed reference of which at this stage is not necessary since
reference to them is being made in the later part of this judgment.
Mr. V.C. Kotwal, learned Counsel urged that exclusion of evidence at the stage when the
objection is raised would not only save time but expedite disposal of the suits or
proceedings. He submits that if the decision on the objection as to admissibility or
mode of proof of documentary evidence and relevancy of oral and documentary
evidence is allowed to be postponed to stage of judgment then in that event public
policy would clearly be flouted.
Mr. Kotwal in support of his submission pressed into service various provisions of the
Indian Evidence Act and tried to cull out legislative intent leading to public policy.
13. According to him, the Parliament in its wisdom has quite specifically refrained from
making any changes in the Evidence Act and in particular the Sections thereof which on
a correct interpretation require that evidence of the type mentioned in Sections 4, 5, 21,
66, 91, 92, 93 and 123 of the Evidence Act is required to be excluded and are not
allowed to be given or brought on record. He further submits that even the Law
Commission in its 157th report did not recommend any change in law of evidence.
Significantly, the Commission has not even referred to the case of Bipin Shantilal
Panchal (supra) in its report. In his submission, judgment of the Apex Court in the case
of Bipin Shantilal Panchal (supra) does not take into account public policy of excluding
evidence which is irrelevant and inadmissible. He, thus, supported the submission
canvassed by Mr. Parikh.
14. The aforesaid submission canvassed by Mr. Parikh and Mr. Kotwal are supported by
M/s V.R. Dhond and M.H. Advani.
Per Contra:
Mr. S.G. Aney, learned senior Counsel appearing with Mr. S.V. Mhatre in his usual
persuasive manner supported the view taken by two learned single Judges of this Court

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in the case of Boman P. Irani (supra) and Oil and Natural Gas Corporation Ltd. (supra),
contending that their views are based on Supreme Court judgments one in Bipin
Shantilal Panchal and Ors. in State v. Navjot Sandhu (cited supra) and shall go a long
way in curtailing delay in disposal of, suits.
In the submission of Mr. Aney, the judgment of the Apex Court in Bipin Shantilal
Panchal (supra) is by larger bench presided over by Justice K.T. Thomas and applies to
both civil as well as criminal cases. He submits that this judgment binds all subordinate
Courts including this Court.
15. Mr. Aney heavily relied upon the view taken by the learned single Judge in the case
of Boman P. Irani (supra) and went on to submit that the decision on the objection
should be postponed till the final hearing so that the trial should not be hampered. He
submits that the affidavit of evidence tendered on record should be accepted subject to
objections and the documents should also be allowed to be marked as exhibits subject
to objections to be considered at the last stage in the final judgment. According to him,
his submission is in consonance with the Statement of Objects and Reasons of the Civil
Procedure Code Amendment Act, 2002 whereby Order XVIII, Rule 4 was introduced. In
his submission, para 3(e) of the Statement of Objects and Reasons suggests that the
whole object is to reduce the delay in the trial. If the object of the amendment was to
avoid delay in final disposal, then the decision of the Supreme Court in Bipin Shantilal
Panchal (supra) needs to be applied to civil cases and the practice prescribed therein
should be followed.
16. Mr. Aney, thus, tried to support the view leading to postponement of the decision
till the final hearing of the suit with regard to the admissibility or mode of proof of
evidence or relevancy of oral and documentary evidence tendered in the suit.
The aforesaid submissions canvassed by Mr. Aney are supported by Mr. N.Y. Gupte,
learned Counsel appearing in the companion matter.
Mr. Z.T. Andhyarujina, learned Counsel appearing for the defendants in Testamentary
Suit No. 19/1999 tried to carve out a middle path contending that there is no mandate
in law that the objections must be decided at a particular stage. However, in his
submission, generally, it is desirable that the objections must be decided at the earliest.
He submits that in some deserving cases involving complicated questions of law, it
may, however, be desirable that the decision on the objection may be deferred to a later
stage.
1 7 . He thus, submits that practical approach must be adopted by the Courts. He
submits that while deciding the issue as to whether to hear objections to evidence
immediately or to defer such decision, the Courts must consider the effect of such
decision both on the party producing the evidence and other parties to the proceeding.
Mr. Andhyarujina urged that the advantages of entertaining and deciding objections at
the outset are many. For instance, it enables the party producing the evidence to know
whether it will be able to prove a fact based on the evidence produced, or whether he
would be required to produce further or other evidence. It also enables the party cross-
examining the witness to know whether or not he is required to cross-examine the
witness on a particular document produced or a statement made in the affidavit of
evidence. In the event, party elects to cross-examine on such document he will no
longer be entitled to raise any objection to the same.
18. On the other hand, if he does not cross-examine the witness on such document,

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and the document is eventually admitted into evidence, the same would remain
unrebutted. Deferring the ruling on objections also works unfairly upon the party
producing the evidence, as he has no opportunity to introduce fresh evidence, in the
event of the evidence produced being held to be inadmissible.
Mr. Andhyarujina, thus, submits that weight of authorities, however, suggests that it is
salutary that the objections must be decided at the earliest opportunity. In short, he
submits that it is not desirable to lay down any hard and fast rule as to at which stage
the Court should decide admissibility or mode of proof or relevancy of documentary
and/or oral evidence. He submits that it should be left to the discretion of the Judge
trying the suit.
19. Before embarking upon the rival contentions of the parties, we may notice relevant
statutory provisions.
Relevant Statutory Provisions:
In order to understand and appreciate this question referred; and to come to the
conclusion as to what proper answer should be to this question, few relevant statutory
provisions of Civil Procedure Code, Civil Manual need to be noticed at the outset.
Civil Procedure Code:
Rule 3 of Order XIII of Civil Procedure Code provides that:
The Court may at any stage of the suit reject any document which it considers
irrelevant or otherwise inadmissible, recording the grounds of such rejection.
Rules 4 and 6 of Order XIII which are very much relevant for the decision in the
matter read thus:
4 . Endorsement on documents admitted in evidence.- (1) Subject to
the provisions of the next following sub-rule, there shall be endorsed
on every document which has been admitted in evidence in the suit the
following particulars, namely:
(a) the number and title of the suit,
(b) the name of the person producing the document,
(c) the date on which it was produced, and
(d) a statement of its having been so admitted;
and the endorsement shall be signed or initialled by the Judge. (2)
Where a document so admitted is an entry in a book, account or
record, and a copy thereof has been substituted for the original under
the next following rule, the particulars aforesaid shall be endorsed on
the copy of the endorsement thereon shall be signed or initialled by the
Judge.
Provided that in proceedings in the Bombay City Civil Court,
the endorsement may be signed or initialled by such officer as
the Principal Judge may authorise in this behalf. Or, in the case
of a High Court, by an officer in Court under the order of the
Judge or one of the Judges.

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 Provided that where the Court is satisfied that the document,
not endorsed in the manner laid down in the above rule, was in
fact, admitted in evidence, it shall treat the document as
having been properly admitted in evidence unless non-
compliance with this rule has resulted in miscarriage of justice.
6. Endorsements on documents rejected as inadmissible in evidence.-
Where a document relied on as evidence by either party is
considered by the Court to be inadmissible in evidence, there
shall be endorsed thereon the particulars mentioned in Clauses
(a), (b) and (c) of Rule 4, Sub-rule (1), together with a
statement of its having been rejected, and the endorsement
shall be signed or initialled by the Judge.
Provided that in proceedings filed in the Bombay City Civil
Court the endorsement may be signed by such officer as the
Principal Judge may authorise in this behalf.
Order XVIII, Rule 4 of Civil Procedure Code is also one of the
relevant provisions for deciding the question referred.
Dissection of the said provision would show-
(1.1) that Sub-rule (1) of Rule 4 provides that the
examination-in-chief of a witness shall be on affidavit. The
proviso thereto provides that where documents are filed or
relied upon by the parties, the proof and admissibility of such
documents shall be subject to the orders of the Court.
(1.2) Sub-rule (2) of Rule 4 provides that the evidence by way
of cross-examination and re-examination of the witness shall
be recorded by the Court or by the Commissioner appointed by
the Court.
(1.3) Sub-rule (4) thereof provides that the Commissioner may
record remarks as to the demeanour of the witness under
examination. The proviso thereto lays down that any objections
raised during the recording of evidence before the
Commissioner shall be recorded by him and decided by the
Court at the stage of arguments.
(1.4) Sub-rule (5) thereof provides that the report of the
Commissioner shall be submitted to the Court appointing the
commission.
(1.5) Sub-rule (6) thereof provides for preparation of panel of
Commissioners to record the evidence under this rule.
(1.6) Sub-rule (7) thereof provides for fixation of remuneration
for the services of the Commissioner.
(1.7) Sub-rule (8) thereof provides that provision of Rules 16,
16-A, 17 and 18 of Order 26 shall apply to the issue, execution
and return of such commission under Order 18, Rule 4.

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 (1.8) Order 26, Rule 16-A provides for the procedure to be
followed by the Commissioner when the question put to a
witness is objected by his Pleader.
Bombay Civil Manual:
The other relevant provisions of Civil Manual are:
(2.2) The Bombay Civil Manual also makes provision for production and
marking of documents as Exhibits. Chapter 27 thereof contains the
following provisions:
Paragraph 552(1). All documents tendered in evidence shall be
accompanied by a list in the form given as Nos. 5 in Appendix
of the First Schedule of the Code of Civil Procedure.
Paragraph 523(1). As soon as the list is filed, the Bench Clerk
should endorse on the back of each document the particulars
mentioned in Clauses (a), (b) and (c) of Rule 4(1), Order 13,
Civil Procedure Code.
Paragraph 524. If a document included in the list is referred to
in the proceedings before it is tendered in evidence and
formally proved, it should be immediately marked for
identification. When it is tendered in evidence it should be
detached from the list. If rejected, it should be endorsed as
prescribed by Order 13, Rule 6, Civil Procedure Code, and
returned. If admitted, the endorsement referred to in the above
Rule should be completed and signed by the Judge (Order 13,
Rule 4, Civil Procedure Code) and the document should be
assigned the appropriate exhibit number and filed in the record
and all references to it in the depositions and judgment should
bear that number. Every document should be further marked
with the letter "P" or "D", according as it is tendered by the
plaintiff or the defendant. The number assigned to each
document should be endorsed on the list of documents
mentioned above.
Effects the Amending Act of 2002:
Having said so, in order to answer the question referred, it is also necessary to examine
what is the effect of amendment made by the Code of Civil Procedure (Amendment) Act,
2002 whereby Order XVIII, Rule 4 has been amended. Before the aforesaid provision of
amended Rule 4 of Order XVIII is taken into consideration, it will be necessary to
consider the brief background which resulted in amendment of the said Rule 4 of Order
XVIII.
In view of the concern expressed from various quarters over the pending arrears and
need to manage the explosion of dockets, suggestions were invited from Committees
which were constituted to tackle this problem. Various Committees were formed. from
time to time which have given their recommendations for curtailing the arrears of
pending cases.
Sharadchandra Committee as also Malimath Committee's report submitted in 1989-90

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had given various reasons and had made various categories of causes, which were
responsible for causing delay in disposal of cases in trial Courts and other Courts. It
was stated in the report that maximum time of the trial Court was taken in recording of
evidence and it was felt that if this work of recording of evidence was given to some
other agency, the Court could find more time for disposal of interlocutory applications
and for final disposal of cases.
2 3 . In 163rd report of Law Commission of India on the Code of Civil Procedure
(Amendment) Bill, 1997 in Chapter-II under the heading "Recommendations and
Conclusions Regarding the Code of Civil Procedure (Amendment) Bill, 1997", it is stated
in para 2.3 (e) as under:
2 . 3 The Amendment Bill seeks to make some of the following important
changes in the Code of Civil Procedure, 1908 (as indicated in the Statement of
Objects and Reasons annexed with the Bill):
(a)....
(b)....
(c)....
(d)....
(e) As maximum time is consumed by the Courts in recording oral
evidence which causes delay in disposal of cases, it is proposed to
reduce such delay by making provisions for filing of examination- in-
chief of every witness in the form of an affidavit. For the cross-
examination and re-examination of witnesses, it is proposed that it
shall be recorded by a commissioner to be appointed by the Court and
the evidence recorded by a Commissioner shall become part of record
of the suit;
(f)....
(g)....
(h)....
(i)....
(j)....
3....
It was, therefore, felt that the Commissioner who was empowered to record statements
of witnesses under Order XXVI under certain exceptional circumstances, should be given
the power to exclusively record the evidence of witnesses. This was taken into
consideration in the Bill which was submitted in 1997 and, accordingly, the Code of
Civil Procedure (Amendment) Act, 1999 was passed and Section 27 of the said
Amendment Act of 1999 brought the amendment in Order XVIII, Rule 4.
24. This amendment was not given effect to since protest was raised by the members of
the Bar throughout the country and, subsequently, the Code of Civil Procedure
(Amendment) Act, 2002 was brought into force on 1st July, 2002 and Order XVIII, Rule

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4 was amended by virtue of the Code of Civil Procedure (Amendment) Act, 2002,
Section 12(b). In Order to examine the effect and purpose of the amendment which was
made in 2002, it may be necessary to briefly examine the Code of Civil Procedure
(Amendment) Act, 1999 so that the intention of the Legislature can be ascertained by
the amendment which was brought into force in 2002 by the Code of Civil Procedure
(Amendment) Act of 2002. The Code of Civil Procedure (Amendment) Act, 1999, by
Section 27, amended Order XVIII, Rule 4 in the following manner.
27. In the First Schedule, in Order XVIII,-
(i) Sub-rule (4) of Rule 2 shall be omitted;
(ii) for rule 4, the following rule shall be substituted, namely:
4 . (1) In every case, the evidence of a witness of his
examination-in-chief shall be given by affidavit and copies
thereof shall be supplied to the opposite party by the party
who calls him for evidence.
(2) The evidence (cross-examination and re-examination) of
the witness in attendance, whose evidence (examination-in-
chief) by affidavit has been furnished to the Court shall be
taken orally by a commissioner to be appointed by the Court
from amongst the panel of commissioners prepared for this
purpose on the same day:
Provided that, in the interest of justice and for reasons to be
recorded in writing, the Court may direct that the evidence of
any witness shall be recorded by the Court in the presence and
under the personal direction and superintendence of the Judge.
(3) The commissioner shall be paid such sum for recording of
evidence as may be prescribed by the High Court.
(4) The amount payable to the commissioner under Sub-rule
(3) shall be paid by the Court or by the parties summoning the
witness as may be prescribed by the High Court.
(5) The District Judge shall prepare a panel of commissioners
to record the evidence under this rule.
(6) The commissioner shall record evidence either in writing or
mechanically in his presence and shall make a memorandum
which shall be signed by him and the witness and submit the
same to the Court appointing such commissioner.
(7) Where any question put to a witness is objected by a party
or his pleader and the commissioner allows the same to be put,
the commissioner shall take down the question together with
his decision.
(iii) Rule 17A shall be omitted;
(iv) after Rule 18, the following rule shall be inserted, namely:

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 1 9 . Notwithstanding anything contained in these rules, the
Court may, instead of examining witnesses in open Court,
direct their statements to be recorded on commission under
Rule 4A of Order XXVI.
This amendment was not brought into force and, subsequently, the Code of Civil
Procedure (Amendment) Act, 2002 was passed whereby by Section 12(b), Order XVIII,
Rule 4 was amended in the following manner.
12. In the First Schedule, in Order XVIII,-
(a)....
(b) for Rule 4 [as substituted by Clause (ii) of Section 27 of the Code
of Civil Procedure (Amendment) Act, 1999], the following rule shall be
substituted, namely:
4.(1) In every case, the examination-in-chief of a witness shall
be on affidavit and copies thereof shall be supplied to the
opposite party by the party who calls him for evidence:
Provided that where documents are filed and the parties rely
upon the documents, the proof and admissibility of such
documents which are filed along with affidavit shall be subject
to the orders of the Court.
(2) The evidence (cross-examination and re-examination) of
the witness in attendance, whose evidence (examination-in-
chief) by affidavit has been furnished to the Court shall be
taken either by the Court or by the Commissioner appointed by
it :
Provided that the Court may, while appointing a commission
under this sub-rule, consider taking into account such relevant
factors as it thinks fit:
(3) The Court or the Commissioner, as the case may be, shall
record evidence either in writing or mechanically in the
presence of the Judge or of the Commissioner, as the case may
be, and where such evidence is recorded by the Commissioner,
he shall return such evidence together with his report in
writing signed by him to the Court appointing him and the
evidence taken under it shall form part of the record of the
suit.
(4) The Commissioner may record such remarks as it thinks
material respecting the demeanour of any witness while under
examination : Provided that any objection raised during the
recording of evidence before the Commissioner shall be
recorded by him and decided by the Court at the stage of
arguments.
(5) The report of the Commissioner shall be submitted to the
Court appointing the commission within sixty days from the

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 date of issue of the commission unless the Court for reasons to
be recorded in writing extends the time.
(6) The High Court or the District Judge, as the case may be,
shall prepare a panel of Commissioners to record the evidence
under this rule.
(7) The Court may by general or special order fix the amount
to be paid as remuneration for the services of the
Commissioner.
(8) The provisions of Rules 16, 16-A, 17 and 18 of Order XXVI,
insofar as they are applicable, shall apply to the issue,
execution and return of such commission under this rule.
25. From the perusal of the amendment which was sought to be introduced in 1999 and
the actual amendment which was brought into force in 2002, it can be noticed that
several changes were made in the amendment which was proposed in 1999. Firstly, it
can be seen that after Order XVIII, Rule 4(1), a proviso has been incorporated which
was not there in the earlier amendment and the proviso also has been added to Order
XVIII, Rule 4 Sub-clause (4). The aforesaid first proviso to Rule 4(1) and the second
proviso to Rule 4(4) clearly reveals the intention of the Legislature. Whereas, in the
earlier amendment of 1999, the intention of the Legislature was to delegate the work of
recording of evidence entirely to the Commissioner who would be appointed for the
purpose of recording of evidence. The Code of Civil Procedure (Amendment) Act, 2002
makes a departure and gives discretion to the Court to either record the cross-
examination itself or depute that work to the Court Commissioner. At the same time,
proviso to Sub-rule (1) of Rule 4 clearly indicates that the Court alone is empowered to
decide the question of proof and admissibility of documents. Whereas, so far as
objection raised during recording of evidence before the Commissioner is concerned,
proviso to Sub-rule (4) of Rule 4 clearly stipulates that the said objection could be
determined by the Court at the time of final hearing of the case. The present
amendment brought about by the Code of Civil Procedure (Amendment) Act, 2002,
therefore clearly tries to reconcile the earlier position and vests a discretion in the Court
of deciding the question of admissibility of documents before the case is sent to the
Commissioner for recording the cross-examination.
26. The purpose and intention of the Legislature, therefore, is very clear. It is apparent
that after having noticed that large time of the Court is taken in recording oral evidence
of the witnesses, it was thought fit to delegate this work to the Commissioner by
expanding the powers of the Commissioner which are given under Order XXVI and
further amendment to Order XIX, Rules 1 and 2 gives ample power to the Commissioner
to record the evidence. At the same time, since the Commissioner is not competent to
decide the question of proof and admissibility of documents and evidence, discretion is
given to the Court, either to decide this issue before sending the matter to the
Commissioner for recording of cross-examination or decide this issue after the report is
submitted by the Commissioner. It will have to be noted here that if the objects and
reasons of the Code of Civil Procedure (Amendment) Act are noticed, it can be seen that
the entire procedure prescribed for hearing and disposal of the suits has been
overhauled and, therefore, the Commissioner is supposed to give a report within a
period of sixty days and the period for extension of time which is to be given to the
Commissioner has to be by recording reasons by the Court.

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2 7 . Apart from the amendment which is made to Order XVIII, Rule 4, it is also
necessary to take into consideration the effect of other amendments which have been
made to the provisions of the Code of Civil Procedure by the Code of Civil Procedure
(Amendment) Act, 2002. The first amendment is in respect of Order VII, Rule 14
wherein it is provided that the plaintiff shall produce documents which are in his
possession in support of his claim along with the plaint and also state which document
is not in his possession and further state, where possible, in whose possession and
power it is. Sub-clause (3) provides that any document which ought to have been
produced by the plaintiff along with the plaint is not so produced then it shall not be
permitted without the leave of the Court to be received in evidence at the hearing of the
suit. Similar amendment was made in the provisions of Order VIII, Rule 1-A which is a
provision regarding filing of Written Statement by the defendant. In order to give effect
to these amendments consequential amendments have been made. Consequently, Order
XIII, Rule 1 has been amended.
28. Order XVIII, Rule 19 states that the Court may, instead of examining the witnesses
in open Court, direct that their statements may be recorded on commission under Rule
4-A of Order XXVI. Order XXVI, Rule 4-A states that the Court may direct the
Commissioner to record the evidence of any person resident within the local limits of its
jurisdiction.
All the aforesaid provisions have been inserted in order to ensure that there is a quick
disposal of the cases. The documents, therefore, are to be produced by the plaintiff and
by the defendant along with the plaint or written statement. The original documents are
to be produced before the settlement of issues under Order XIII. Notice to admit
documents is to be given under Order XII and under Rule 2-A of Order XII, the
document is deemed to be admitted if not denied after service of notice to admit
documents. Under Order XIII, Rule 3, the Court has a power to reject the irrelevant or
inadmissible documents.
The Questions for Determination:
2 9 . Having heard various learned Counsel appearing for the parties, we propose to
answer the question, after taking review of the law holding the field but slightly
amending and splitting it in two parts for the sake of convenience to answer. The
question, as reframed/amended, will read as under:
Question-A.
At which stage, the objection to the admissibility and/or proof of.
document which may be produced or tendered should be raised;
considered and decided by the Court?
Question-B.
At which stage, an objection to the admissibility or relevancy of
evidence contained in the affidavit filed under Order XVIII, Rule 4 of
Civil Procedure Code should be considered and decided by the Court?
The Rulings/Authorities :
30. In order to understand and appreciate the reframed questions and to come to a
conclusion as to what the proper answers to the questions should be, it is necessary to
look at some of the relevant judgments holding field.

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One of the oldest judgment of the Privy Council in the field is in the case of Jadu Rai v.
Bhubotaran Nandy 16 Indian Appeals 148 : 17 Cal 173/186; wherein it is observed as
under:
I would further add, that I think the practice of admitting evidence and
reserving the question of its admissibility for further consideration, is unwise
and much to be regretted. If the evidence is once admitted, it is impossible to
say what its effect may be on the mind of the person who hears it; and I think
it most [187] desirable that the question of admissibility should be finally
decided when the objection to questions is taken.
31. The above view has been followed in several cases by various High Courts including
High Courts of Madras and Andhra Pradesh, see (1955) 1 ML J 457, A. Devasikamani
Goundar v. Andamuthu Goundar and MANU/AP/0159/1956 : AIR 1957 A.P. 60, N.S.
Sastri v. N. Lakshmidevamma.
The Privy Council in another judgment in the case of Gopal Das v. Sri Thakurji
MANU/PR/0002/1943 held that the objection to the mode of proof must be taken before
document is marked and not in appeal for first time. Where the objection to be taken is
not that the document is in itself inadmissible but that the mode of proof put forward is
irregular or insufficient, it is essential that the objection should be taken at the trial
before the document is marked as an exhibit and admitted to the record. A party cannot
lie by until the case comes before a Court of appeal and then complain for the first time
of the mode of proof.
3 2 . In Zaver Chand v. Pukhraj Surana MANU/SC/0036/1961 : [1962]2SCR333 , a
document was tendered which was not properly stamped. Objection was raised as to
admissibility thereof. The Court held that the question has to be decided there and then
when the document is tendered in evidence. It was further held that once the Court
rightly or wrongly decides to admit the document in evidence, the matter is closed so
far as the parties are concerned. It was held that the Court has to determine the matter
judicially as soon as the document is tendered in evidence and before it is marked as an
Exhibit in the case.
3 3 . In the case of R.V.E. Venkatachalam Gounder (supra), the Apex Court ruled as
under:
The objections as to 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 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 an 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 enable the party tendering
the evidence to cure the defect and resort to such mode of proof as would be

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 regular.
34. In the case of Ram Ratan v. Bajarang Lal MANU/SC/0318/1978 : [1978]3SCR963 ,
the Supreme Court observed as under:
The Court, and of necessity it would be trial Court before- which the objection
is taken about admissibility of document on the ground that it is not duly
stamped, has to judicially determine the matter as soon as the document is
tendered in evidence and before it is marked as an exhibit in the case and
where a document has been inadvertently admitted without the Court applying
its mind as to the question of admissibility, the instrument could be said to
have been admitted in evidence with a view to attracting Section 36.
3 5 . In the case of Smt. Dayamathi Bai v. K.M. Shaffi MANU/SC/0580/2004 :
AIR2004SC4082 , the Apex Court following its earlier view in R.V.E. Venkatachalam
Gounder (supra), Roman Catholic Mission v. State of Madras MANU/SC/0253/1966 :
[1966]3SCR283 and Gopal Das v. Sri Thakurji (supra) reiterated that the objection to
be taken at trial before document is marked as an 'exhibit' and admitted to record. In
the said judgment, the Supreme Court also referred to Sarkar on Evidence 15th Edition,
page 1084; wherein it is stated that if copies of the documents are admitted without
objection in the trial Court, no objection to their admissibility can be taken afterwards
in the Court of Appeal.
In the case of Sait Tarajee Khimchand v. Yelamarti Satyam MANU/SC/0022/1971 :
AIR1971SC1865 , the Apex Court ruled that mere marking of a document as an exhibit
does not dispense with its proof.
36. In the case of Ramanuj Rai v. Dakshineshwar Rai AIR 1926 Cal. 752, the Court
ruled that where there is any objection to the admissibility of an evidence, a final
decision on the objection must be recorded before the Court proceeds to judgment.
The weight of the aforesaid authorities suggests that the objection to the admissibility
of evidence should be raised by the objector and decided by the Court at the earliest
opportunity. The same view has been reiterated by the learned single Judges of this
Court in Bharat R. Desai v. Naina M. Bhal (supra) and Durgashankar v. Babubhai
(supra).
37. We now propose to proceed to refer to the judgments of the Apex Court taking little
different view on the very same issue while dealing with the case arising out of criminal
trial.
In the case of Bipin Shantilal Panchal (supra) Justice Thomas speaking for the Bench
held that-
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.
38. There is no illegality in adopting such a course. However, if the objection relates to

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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.
The aforesaid view finds support in another judgment of the Apex Court in the case of
State v. Navjot Sandhu (supra) arising out of criminal trial.
39. While interpreting Rule 4 of Order XVIII, the other amendments also have to be
kept in mind and over and above that, it has to be borne in mind that the intention of
the Legislature was to curtail the time consumed by the Court in the process of
recording of evidence. In Ameer Trading Corporation Ltd. v. Shapoorji Data Processing
Ltd. (2004) 1 SCC 702, the Apex Court while interpreting the said provision has taken
into consideration Heydon's rule. The Apex Court has made the following observations.
21. In a situation of this nature, the doctrine of suppression of mischief rule as
adumbrated in Heydon's case (1584) 3 Co Rep 7a : 76 ER 637 shall apply. Such
an amendment was made by Parliament consciously and, thus, full effect
thereto must be given.
2 2 . In Halsbury's Laws of England, Vol. 44(1), 4th Reissue, para 1474, pp.
906-07, it is stated:
Parliament intends that an enactment shall remedy a particular mischief
and it is therefore presumed that Parliament intends that the Court,
when considering in relation to the facts of the instant case, which of
the opposing constructions of the enactment corresponds to its legal
meaning, should find a construction which applies the remedy provided
by it in such a way as to suppress that mischief. The doctrine originates
in Heydon's case (1584) 3 Co Rep 7 : 76 ER 637 where the Barons of
the Exchequer resolved that for the sure and true interpretation of all
statutes in general (be they penal or beneficial, restrictive or enlarging
of the common law), for things are to be discerned and considered:
(1) what was the common law before the making of the Act;
(2) what was the mischief and defect for which the common
law did not provide;
(3) what remedy Parliament has resolved and appointed to cure
the disease of the commonwealth; and
(4) the true reason of the remedy; and then the office of all the
Judges is always to make such construction as shall:
(a) suppress the mischief and advance the remedy; and
(b) suppress subtle inventions and evasions for the continuance
of the mischief pro privato commodo (for private benefit); and
(c) add force and life to the cure and remedy according to the
true intent of the makers of the Act pro publico (for the public
good).
(Emphasis supplied)

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 23. Heydon's rule has been applied by this Court in a large number of cases in
order to suppress the mischief which was intended to be remedied as against
the literal rule which could have otherwise covered the field. See for example,
Parayankandiyal eravath kanapravan kalliani Amma v. K. Devi
MANU/SC/0487/1996 : AIR1996SC1963 ; Bengal Immunity Co. Ltd. v. State of
Bihar MANU/SC/0083/1955 : [1955]2SCR603 and Goodyear India Ltd. v. State
of Haryana MANU/SC/0194/1989 : [1991]188ITR402(SC)
40. At this stage, it would be appropriate to take into consideration the observations
made by the Apex Court in the case of Salem Advocate Bar Association (supra). In the
first Salem Advocate Bar Association's case reported in MANU/SC/0912/2002 :
AIR2003SC189 , the validity of Order XVIII, Rule 4 was challenged. However, the Apex
Court upheld the validity of the said rule. In the second Salem Advocate Bar
Association's case reported in MANU/SC/0450/2005 : AIR2005SC3353 , the Apex Court
was called upon to formulate the modalities for implementation of Section 89 of the
Code of Civil Procedure. The Apex Court, however, took into consideration the report
submitted by the Committee which was constituted for the purpose of giving proper
effect to the amendments. The report was tendered in three parts. Report-I contained
the consideration of various grievances relating to amendments to the Code and
recommendations of the Committee. In para-3 of the said judgment, the Apex Court has
taken into consideration the report and in para-5 it has taken into consideration the
effect of amendment of Order XVIII, Rule 4. It would be relevant to consider the
observations made by the Apex Court in para-5 of its judgment which is reproduced
hereinbelow:
5. The amendment provides that in every case, the examination-in-chief of a
witness shall be on affidavit. The Court has already been vested with power to
permit affidavits to be filed as evidence as provided in Order XIX, Rules 1 and 2
of the Code. It has to be kept in view that the right of cross-examination and
re-examination in open Court has not been disturbed by Order XVIII, Rule 4
inserted by amendment. It is true that after the amendment cross-examination
can be before a Commissioner but we feel that no exception can be taken in
regard to the power of the Legislature to amend the Code and provide for the
examination-in-chief to be on affidavit or cross-examination before a
Commissioner. The scope of Order XVIII, Rule 4 has been examined and its
validity upheld in Salem Advocates Bar Association's case. There is also no
question of inadmissible documents being read into evidence merely on account
of such documents being given exhibit numbers in the affidavit filed by way of
examination-in-chief. Further, in Salem Advocates Bar Association's case, it has
been held that the trial Court in appropriate cases can permit the examination-
in-chief to be recorded in the Court. Proviso to Sub-rule (2) of Rule 4 of Order
XVIII clearly suggests that the Court has to apply its mind to the facts of the
case, nature of allegations, nature of evidence and importance of the particular
witness for determining whether the witness shall be examined in Court or by
the Commissioner appointed by it.
4 1 . The power under Order XVIII, Rule 4(2) is required to be exercised with great
circumspection having regard to the facts and circumstances of the case. It is not
necessary to lay down hard and fast rules controlling the discretion of the Court to
appoint Commissioner to record cross-examination and re-examination of witnesses.
The purpose would be served by noticing some illustrative cases which would serve as
broad and general guidelines for the exercise of discretion. For instance, a case may
involve complex question of title, complex question in partition or suits relating to

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partnership business or suits involving serious allegations of fraud, forgery, serious
disputes as to the execution of the will etc. In such cases, as far as possible, the Court
may prefer to itself record the cross-examination of the material witnesses. Another
contention raised is that when evidence is recorded by the Commissioner, the Court
would be deprived of the benefit of watching the demeanour of witness. That may be so
but, in our view, the will of the legislature, which has by amending the Code provided
for recording evidence by the Commissioner for saving Court's time taken for the said
purpose, cannot be defeated merely on the ground that the Court would be deprived of
watching the demeanour of the witnesses. Further, as noticed above, in some cases,
which are complex in nature, the prayer for recording evidence by the Commissioner
may be declined by the Court. It may also be noted that Order XVIII, Rule 4, specifically
provides that the Commissioner may record such remarks as it thinks material in respect
of the demeanour of any witness while under examination. The Court would have the
benefit of the observations if made by the Commissioner.
(Emphasis supplied)
4 2 . The Code of Civil Procedure is a procedural law. It is "procedure", something
designed to facilitate justice and further its ends: not a penal enactment for punishment
and penalties; not a thing designed to trip people up. Too technical a construction of
Sections that leaves no room for reasonable elasticity of interpretation should therefore
be guarded against (provided always that justice is to "both" sides) lest the very means
designed for the furtherance of justice be used to frustrate it.
All the rules of procedure are the handmaid of justice. The language employed by the
draftsman of processual law may be liberal or stringent, but the fact remains that the
object of prescribing procedure is to advance the cause of justice.
43. In an adversarial system, no party should ordinarily be denied the opportunity of
participating in the process of justice dispensation. Unless compelled by express and
specific language of the Statute, the provisions of the Civil Procedure Code or any other
procedural enactment ought not to be construed in manner which would leave the Court
helpless to meet extraordinary situations in the ends of justice.
The processual law so dominates in certain systems as to overpower substantive rights
and substantial justice. The humanist rule that procedure should be the handmaid, not
the mistress, of legal justice compels consideration of vesting a residuary power in
Judges to act ex debito justitiate where the tragic sequel otherwise would be wholly
inequitable - Justice is the goal of jurisprudence processual, as much as substantive.
See Sushil Kumar Sen v. State of Bihar MANU/SC/0028/1975 : [1975]3SCR942 .
44. No person has a vested right in any course of procedure. He has only the right of
prosecution or defence in the manner for the time being by or for the Court in which the
case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has
no other right than to proceed according to the altered mode. See Blyth v. Blyth 1966
(1) All E.R. 524 (HL). A procedural law should not ordinarily be construed as
mandatory, the procedural law is always subservient to and is in aid to justice. Any
interpretation which eludes or frustrates the recipient of justice is not to be followed,
see Shreenath and Anr. v. Rajesh and Ors. MANU/SC/0286/1998 : [1998]2SCR709 .
45. Processual law is not to be a tyrant but a servant, not an obstruction but an aid to
justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not
a resistant in the administration of justice as held by the Apex Court in the recent
judgment in the case of R.N. Jadi and Brothers v. Subhashchandra MANU/SC/7775/2007

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: AIR2007SC2571 .
The Court must always be anxious to do justice and prevent victories by way of
technical knock-outs. But how far that concept can be stretched in the context of the
amendments brought to the Civil Procedure Code and in the light of the mischief that
was sought to be averted is a question that has to be seriously considered.
4 6 . Sometimes even the procedure would be considered as mandatory, no doubt,
retaining the power in Court in a proper case to exercise the jurisdiction to take out the
rigour of that provision or to mitigate genuine hardship.
Consideration:
With the above preface, we propose to answer the questions referred hereinabove.
Question-A.
The resolution of this question cannot be without considering the provisions of Order
XIII, Rule 3 which requires the Court to reject any document it considers irrelevant or
otherwise inadmissible recording grounds of such rejection. Rule 4 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. Rule 6 contemplates endorsements on the documents rejected as
inadmissible in evidence. An objection to the admissibility of the document should be
raised before 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.
4 7 . Chapter XXVII of the Civil Manual also deals with the matters pertaining to the
"Records" of the Court and under the heading "Documents" it deals with the procedure
pertaining to acceptance of documents on record and the manner in which they are to
be exhibited or rejected in the course of trial.
Considering the provisions of law referred to above, it is not possible to reject the
document admitted and exhibited in terms of Rule 4 in exercise of powers under Rule 6
of Order XIII of Civil Procedure Code. A document can be exhibited in evidence only
when such a document is admissible in evidence and not otherwise. If admissible
document is exhibited on establishing its proof then such document cannot be de-
exhibited or rejected. This is abundantly clear from the provisions of law contained in
Rules 4 and 6 of Order XIII read with Para-524 of the Civil Manual. In fact, provisions of
law contained in Rule 4 are to be read with Rule 6 of Order XIII of Civil Procedure Code
and cannot be considered to be referable to two different stages.
4 8 . The question of exhibiting the document under Rule 4 can arise only if the
document is found to be admissible in evidence and in case it is found to be not
admissible, the same is to be rejected in terms of Rule 6 of Order XIII read with para-
524 of Civil Manual. There is no provision enabling the Court to postpone the objection
regarding admissibility or proof of document, as such one can safely rule that the
question as to admissibility of document should be decided at it arises and should not
be reserved until the judgment of the case is given.
49. The various judgments of the Privy Council, the Supreme Court and various High
Courts referred to hereinabove lean in favour of determining the question as to
admissibility of document at the time of its reception or at the earliest possible

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opportunity. The reason is that if the Court allows the objection, the party tendering the
evidence may take such steps as may be advised to get the lacunae remedied. Once
inadmissible evidence is admitted on record, it is impossible to say what its effect may
be on the mind of the person, who hears it. It creates atmosphere of prejudice affecting
fair trial. It may, unconsciously, be regarded by judicial minds as corroboration of some
piece of evidence legally admissible and thereby obtain for latter quite undue weight
and significance.
Stage to Raise Objection:
50. In order to prevent inadmissible evidence going on record, the opponent or adverse
party can always raise an objection to the admissibility of the document. The question
is: at which stage such objection is to be raised? To answer this question, let us find
out various stages provided in the Code to raise an objection to the admissibility of the
documents.
Order VII deals with construction of the plaint. Rule 14 thereof provides for production
of documents on which plaintiff sues along with list of other documents relied upon in
support of the claim. This is a first opportunity in the lis to the plaintiff to produce
documents on record.
51. On being served with the writ of summons, the defendant appears and files written
statement under Order VIII, Rule 1 in which defendant can admit or deny the documents
filed by the plaintiff. This is a first opportunity to the defendant to deny or admit the
documents. Rule 8-A thereof cast duty on defendant to produce documents upon which
relief is claimed by him. Rules relating to a written statement by a defendant apply to a
written statement filed in answer to a counter-claim in view of Rule 6-G of Order VIII.
Under Order XIII, Rule 1, one more opportunity is available to the parties to produce
documentary evidence at or before settlement of issues. Order 12, Rule 2 provides for
notice to admit documents calling upon the opponent to admit documents.
52. This is an additional stage to admit or deny or object to the admissibility of the
document. Rule 2A thereof provides for deemed admission, if documents are not denied
within stipulated time-frame after service of notice to admit documents.
The procedure for rejecting or exhibiting the document which is produced in the course
of evidence is prescribed under Order XIII, Rules 3 and 4 respectively.
5 3 . Order XVIII, Rule 4(1) of the Civil Procedure Code clearly provides that the
examination-in-chief of a witness shall be on affidavit and copies thereof shall be
supplied to the opposite party by the party who calls the witness for evidence; provided
that where documents are filed and the parties rely upon the documents, the proof and
admissibility of such documents which are filed along with the affidavit shall be subject
to the orders of the Court. At this stage, one more opportunity is provided to the party
to produce documents.
54. The procedure to lead evidence in the form of affidavit under Order XVIII, Rule 4 of
the Civil Procedure Code and to translate it into admissible evidence has been
elaborately stated in the decision of the learned single Judge of this Court in F.D.C. Ltd.
v. Federation of Medical Representatives Association India MANU/MH/0038/2003 :
AIR2003Bom371 .
The above judgment in the case of F.D.C. Ltd. (supra) is affirmed by the Supreme Court

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in Salem Advocate Bar Association (supra) and Ameer Trading Corporation Ltd. (supra).
It is, thus, ruled that unless deponent thereof enters the witness-box and confirms the
contents of the affidavit the same cannot be taken on record and exhibited. Once the
affidavit of evidence is taken on record and exhibited making part of the record of the
case, the opponent, at this stage, must raise an objection to the admissibility and proof
of the documents which the Court has to decide by a judicial order.
Classification of Documentary Evidence vis-a-vis Adjudication thereon:
55. The admissibility of the document in evidence may be broadly classified into three
classes-(i) that objection to the document which is sought to be proved is insufficiently
stamped and the objection relates to deficiency of stamp duty of the document; (ii)
where the objection does not dispute admissibility of document in evidence but is
directed towards the mode of proof alleging the same to be irregular or insufficient; and
(iii) the objection that the document which is sought to be proved is ab initio
inadmissible in evidence.
56. In the first case, the Court, before which the objection is taken about admissibility
of document on the ground that it is not duly stamped, has to judicially determine the
matter as soon as the document is tendered in evidence and before it is marked as an
exhibit in the case as held by the Constitution Bench in Zaver Chand v. Pukhraj Surana
(supra). Once a document has been marked as an exhibit in the case and has been used
by the parties in examination and cross-examination of their witnesses, Section 36
comes into operation.
57. Once a document has been admitted in evidence, as aforesaid, it is not open either
to the trial Court itself or to a Court of Appeal or Revision to go behind that order. Such
an order is not one of those judicial orders which are liable to be reviewed or revised by
the same Court or a Court of superior jurisdiction. Similar view is expressed by the
Supreme Court in the case of Bipin Shantilal Panchal (supra); wherein it is made clear
that if the objection relates to deficiency of stamp duty of a document, the Court has to
decide the objection before proceeding further.
In the case of Ram Ratan v. Bajarang Lal (supra) the Apex Court reiterating the above
view has observed that the Court, as of necessity it would be trial Court, before which
the objection is taken about admissibility of document on the ground that it is not duly
stamped, has to judicially determine the matter as soon as the document is tendered in
evidence and before it is marked as an exhibit in the case.
58. So the objection relating to deficiency of duty cannot be raised or decided at the
later stage of the suit. It has to be decided there and then unless taken on record
subject to objection so as to avoid the rigour of Section 36 of the Stamp Act.
In the second category of the case, the objection should be taken when the evidence is
tendered. Once the document has been admitted in evidence and marked as an exhibit,
the objection that it should not be 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. This proposition is rule of fair
play. The crucial test is whether an objection, if taken at the appropriate point of time,
would enable the party tendering the evidence to cure the defect and resort to such
mode of proof as would be regular.
59. The omission to object become fatal because by his failure the party entitled to
object allows the party tendering the evidence to act on an assumption that the opposite

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party is not serious about the mode of proof. On the other hand, a prompt objection
does not prejudice the party tendering the evidence, for two reasons; firstly, it enables
the Court to apply its mind and pronounce its decision on the question of admissibility
there and then; and secondly, in the event of finding of 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. 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.
60. If the objection to the proof of document is not decided and the document is taken
on record giving tentative exhibit, then the right of the cross-examiner is seriously
prejudiced. Once the document is used in cross-examination, then the document gets
proved and can be read in evidence as held by the Supreme Court in the case of Ram
Janki Devi v. Juggilal Kamlapat MANU/SC/0533/1971 : [1971]3SCR573 . If the cross-
examiner decides not to cross-examine based on unexhibited document and, ultimately,
at the fag end of the trial, the document is held to be admissible and proved, then, the
cross-examiner as a rule of fair play would be entitled to further opportunity to cross-
examine based on that document resulting in delayed trial defeating the very object and
purpose of the amendment to the Civil Procedure Code.
61. In the third case merely because a document has been marked as "an exhibit", an
objection as to its admissibility is not excluded. It is available to be raised even at later
stage or even in appeal or revision. There is no question of inadmissible documents
being read into evidence merely on account of such documents being given exhibit
numbers in affidavit filed by in examination-in-chief or while recording oral evidence.
For example in case of unregistered sale-deed or gift-deed or lease-deed requiring
registration, no evidence of the terms thereof can be given. On the ground of public
policy, evidence derived from unpublished official records of the State cannot be given
except with the permission of the head of the department concerned as laid down under
Section 123 of the Evidence Act.
62. Such a document, therefore, can be tentatively exhibited and the decision thereon
can be postponed till the suit reaches the stage of judgment. However such objection
has also to be decided before the judgment is delivered. The objection to the
admissibility of such evidence can always be taken at any stage of the suit.
Thus, we hold and rule that ordinarily an objection to the admissibility of the document
in first and second categories of cases (excluding third type of case) has to be taken
before the document is exhibited which, necessarily, postulates decision on the
objection then and there.
63. In other words, whether document is admissible or inadmissible is matter which
should always be ruled upon at the time when the document is being proved or put in
or the question asked to the witness. Such practice and procedure is fair to both parties.
It may be observed that sometimes in the case of second category, evidence can be
received subject to objection in anticipation of other evidence, which, if produced, will
remove the objection. In such cases, a final decision on the objection can be postponed
to a later stage but, at any rate, it must be decided before the Court proceeds to
judgment.
64. Omission in this respect is likely to prejudice the party producing the evidence by

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letting the matter remain in a dubious state and then depriving the party tendering the
evidence of an opportunity of making up the defects which in many cases he would be
ready to do if he is told that the objection is allowed as observed hereinbefore.
We may make it clear that a ruling as regards admissibility of evidence should be as
brief as possible since no appeal lies against such order, it not being a judgment.
65. Once the ruling has been given, there should be no interruption in the trial and the
trial Court should proceed with the trial to judgment without interruption. In the
judgment the order should incorporate fuller reasons, if need be, for holding particular
evidence to be inadmissible.
6 6 . Our above view is in consonance with the view taken by the Privy Council in
Padman v. Hanwanta AIR 1915 PC 111. It did not permit the appellant to take objection
to the admissibility of a registered copy of a Will in appeal for the first time. It was held
that this objection should have been taken in the trial Court. It was observed (AIR p.l
12)
The defendants have not appealed to His Majesty-in-Council, and the case has
been argued on their behalf in great detail. It was urged in the course of the
argument that a registered copy of the Will of 1898 was admitted in evidence
without sufficient foundation being laid for its admission. No objection,
however, appears to have been taken in the first Court against the copy
obtained from the Registrar's office being put in evidence. Had such objection
been made at the time, the District Judge, who tried the case in the first
instance, would probably have seen that the deficiency was supplied. Their
Lordships think that there is no substance in the present contention.
Similar is the view expressed by three Judge Bench of the Supreme Court in the case of
P.C. Purushothama Reddiar v. S. Perumal MANU/SC/0454/1971 : [1972]2SCR646 . In
this case the police reports were admitted in evidence without any objection and the
objection was sought to be taken in appeal regarding the admissibility of the reports.
Rejecting the contention it was observed: (SCC p. 15, para 19)
19. Before leaving this case it is necessary to refer to one of the contentions
taken by Mr. Ramamurthi, learned Counsel for the respondent.
67. He contended that the police reports referred to earlier are inadmissible in evidence
as the Head Constables who covered those meetings have not been examined in the
case. Those reports were marked without any objection. Hence it is not open to the
respondent now to object to their admissibility - see Bhagat Ram v. Khetu Ram
MANU/PR/0128/1929 : AIR 1929 PC 110.
The aforesaid view has been followed by two Judge Bench of the Supreme Court in the
case of R.V.E. Venkatchalla Gounder (supra) holding the view that the admissibility of
document should be determined as it arises and before the document is marked and
exhibited.
The aforesaid view is again reiterated by another two Judge Bench of the Supreme
Court in the case of Smt. Dayamathi Bai v. K.M. Shaffi (supra); wherein the reliance is
placed on the Privy Council judgment in the case of Gopal Das v. Sri Thakurji (supra);
wherein the Privy Council ruled that the objection as to the mode of proof must be
taken and determined as it arises before the document is marked and exhibited.

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68. While taking above view, we are also conscious of the another three Judge Bench
judgment of the Supreme Court in the case of Bipin Shantilal Panchal (supra) followed
by another judgment in the case of State v. Navjot Sandhu (supra); wherein the view
taken is that whenever any objection is taken regarding admissibility of the material or
any item of oral evidence such objection should be decided at the last stage of the final
judgment. The said judgments were followed by the learned single Judge of this Court
in the case of Boman P. Irani (supra).
69. The procedure suggested by three Judge Bench of the Apex Court in the case of
Bipin Shantilal Panchal (supra) for being followed is little different than the view
expressed by the another three Judge Bench judgment of the same Court in the case of
P.C. Purushothama Reddiar v. S. Perumal (supra) followed by two Division Benches of
the Supreme Court in the cases of R.V.E. Venhitachalam Gounder and Smt. Dayamathi
Bai v. K.M. Shaffi (cited supra).
Now the question arises as to which of the two views this Court should follow. The view
expressed in Bipin Shantilal Panchal (supra) by the Apex Court is based on the peculiar
factual matrix arising out of criminal trial which was prolonged for almost 10 (Ten)
years in breach of fundamental right of the accused under Article 21 of the Constitution
of India guarantying speedy and expeditious trial. The same view was followed in the
case of State v. Navjot Sandhu (supra) involving more or less similar facts surfaced in a
criminal trial. The question referred for our consideration arises out of civil proceedings
governed by the provisions of the Civil Procedure Code.
70. It is well settled that if certain things are required to be done by the Statute in a
specific manner, then it cannot be done in any other manner as ruled by the Apex Court
in the case of Nazir Ahmed v. King Emperor AIR 1936 PC 243; State of Uttar Pradesh v.
Singhara Singh MANU/SC/0082/1963 : [1964]4SCR485 followed by this Court in
Vanmala S. Aney v. National Education Society, Khamgaon MANU/MH/0498/1982 : 1982
Mh.L.J. 403. Thus, mandate of Order XIII, Rules 3 and 4 read with Order XVIII, Rule
4(1) and consensus of judicial opinion compel us to fall in line with the view expressed
in R.V.E. Venkatachalam Gounder and Smt. Dayamathi Bai v. K.M. Shaffi (both cited
supra).
71. Apart from the above, the principles of stare decisis squarely applies to the case on
hand. In Mishri Lal v. Dhirendra Nath MANU/SC/0241/1999 : [1999]2SCR453 , the
Supreme Court referred to its earlier decision in Maktul v. Manbhari
MANU/SC/0146/1958 : [1959]1SCR1099 on the scope of doctrine of stare decisis with
reference to Hulsbury's Laws of England and Corpus Juris Secundum and held (at SCC
p. 18 para-14) that-
a decision which has been followed for a long period of time, and has been
acted upon by persons in the formation of contracts or in the disposition of
their property, or in the general conduct of affairs, or in legal procedure or in
other ways, will generally be followed by Courts of higher authority other than
the Court establishing the rule, even though the Court before whom the matter
arises afterwards might be of a different view.
72. Assuming that it is possible to take different view or work out different procedure
as suggested in Bipin Shantilal Panchal; as long as principle laid down in P.C.
Purushothama Reddiar v. S. Perumal; R.V.E. Venkatachalam Gounder; and Smt.
Dayamathi Bai v. K.M. Shaffi (all cited supra) has been consistently followed in our
country in civil matters, as observed in Mishri Lal (supra), it will be worthwhile to let

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the matter rest since a large number of parties have modulated and continue to
modulate their legal relationships based on the settled law.
73. However, by way of exception, the objection relating to the admissibility of the
document requiring resolution of complex issues, having effect of arresting progress of
the matter, or if the admissibility of the evidence is dependent on receipt of further
evidence, then, in such cases the trial Court can, in the interest of justice, defer the
issue of deciding admissibility of the document. In Ram Ratan v. Bajarang Lal (supra),
the Supreme Court has also observed that in a given circumstance a document can be
exhibited with the endorsement made by the learned trial Judge "objected, allowed
subject to objection", clearly indicating that the objection has not been judicially
determined and the document was tentatively marked. This procedure is to be followed
only in exceptional circumstances. Ordinarily, the objection to the admissibility of the
document should be decided as and when raised without reserving the question as to
admissibility of the document until final judgment in the case. We may make it clear
that omission to object to a document, which in itself is inadmissible in evidence, would
not constitute such document in evidence.
74. It is also duty of the Court to exclude all irrelevant evidence even if no objection is
taken to its admissibility by the parties. The question of relevancy of the document
being a question of law can be raised and decided at any stage of the proceeding.
The cases; wherein Court Commissioner is appointed to record cross-examination, the
Court may decide the question of admissibility of document or proof of such document
before the matter is sent for recording of evidence to the Commissioner in the form of
cross-examination or re-examination or, in a given case, the Court may decide that
question at a subsequent stage. The Court, obviously, has a discretion of recording
cross-examination and re-examination itself. During the cross-examination, if the
document is produced and the question leading to its admissibility is raised, then, the
Commissioner cannot rule the point as to admissibility of the evidence.
75. In such case, the Court Commissioner is expected to record objection and can give
tentative exhibit to the document subject to the decision of the Court. The Court would
then be obliged to decide the question before the judgment is delivered so that the
party producing evidence could not be deprived of its right to tender evidence or an
opportunity of producing fresh evidence or opportunity of making up defects which in
many cases could be remedied, if he is told that the objection is allowed.
The different cases will have different facts. Each case must be dealt with on its own
facts. No straitjacket formula can be evolved. The Civil Procedure Code has-been
amended from time to time in order to meet the changing situations.
7 6 . The Courts trying the suit or proceedings involving peculiar facts do have a
discretion to work out its own procedure and determine the stage of deciding the
admissibility of the documents for the reasons to be recorded, if it advances the cause
of justice without causing prejudice to the rights of either of the parties. The discretion
should not be used fancifully. It is quite possible that sometimes when party fails to
substantiate the allegations, he may resort to dilatory tactics to harass the opponent by
filing irrelevant and frivolous documents to prolong the continuance of the case. This
should be checked by exercising power available with the Court. As already said,
procedure is always evolved to serve the ends of justice and to avoid miscarriage of
justice.
Question-B.

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77. So far as Question-B relating to the stage at which objection to the admissibility or
relevancy of evidence contained in the affidavit of evidence filed under Order XVIII,
Rule 4 of Civil Procedure Code is no more res Integra in view of the three Judge Bench
judgment of the Apex Court in the case of Ameer Trading Corporation Ltd. (supra);
wherein the Court ruled as under :
...If any objection is taken to any statement made in the affidavit, as for
example, that a statement has been made beyond the pleadings, such an
objection can always be taken before the Court in writing and in any event, the
attention of the witness can always be drawn while cross-examining him. The
defendant would not be prejudiced in any manner whatsoever if the
examination-in-chief is taken on an affidavit and in the event he desires to
cross-examine the said witness he would be permitted to do so in the open
Court....
(Emphasis supplied)
7 8 . The reading of the aforesaid extracted portion would go to show that the Apex
Court has clearly ruled that if any objection is to be taken to the statement made in the
affidavit, then such objection should always be taken before the Court in writing and the
attention of the witness should always be drawn while cross-examining him. In other
words, it is not necessary to decide the objections relating to admissibility or relevancy
of evidence contained in the affidavit filed under Order XVIII, Rule 4 of Civil Procedure
Code as they arise. The determination or decision thereon can be deferred to a later
stage of the suit. However, final decision must be recorded before the Court proceeds to
judgment. The irrelevant evidence brought on record can always be excluded as the
question of admissibility of evidence is a question of law. Even the objection that a
piece of evidence which was considered by the judgment was irrelevant can be taken up
for first time in appeal see Miller v. Madhodas 23 Ind App 106 (PC). In Narhari v.
Ambabai AIR 1920 Bom 244, it was held that erroneous omission to object to irrelevant
evidence does not make the evidence relevant.
7 9 . Section 33 of the Evidence Act deals with relevancy and not with the mode of
evidence. If the evidence is irrelevant, consent of parties cannot make it relevant. Thus,
more convenient mode is to admit the objection in the first instance, reserving question
of law as to its admissibility until final judgment in the case.
Conclusions:
80. In view of the above analysis of the statutory provisions and our discussion, we,
accordingly, articulate our conclusions as follows:
Answer to Question-A:
As already noticed, (i) objection to the document sought to be produced
relating to the deficiency of stamp duty must be taken when the document is
tendered in evidence and such objection must be judicially determined before it
is marked as exhibit;
(ii) Objection relating to the proof of document of which admissibility
is not in dispute must be taken and judicially determined when it is
marked as exhibit;
(iii) Objection to the document which in itself is inadmissible in

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 evidence can be admitted at any stage of the suit reserving decision on
question until final judgment in the case.
The Court trying the suit or proceedings as far as possible is expected to decide the
admissibility or proof of document as indicated hereinabove. As we have already added
a word caution that while exercising discretion judiciously for the advancement of the
cause of justice for the reasons to be recorded, the Court can always work out its own
modality depending upon the peculiar facts of each case without causing prejudice to
the rights of the parties to meet the ends of justice and not to give the handle to either
of the parties to protract litigation. The aim should always be to prevent miscarriage of
justice and expedite trial, which is the dire need of the time.
81. Answer to Question-B:
The objection to the admissibility or relevancy of evidence contained in the
affidavit of evidence filed under Order XVIII, Rule 4 of Civil Procedure Code can
be admitted at any stage reserving its resolution until final judgment in the case
as held in Ameer Trading Corporation Ltd. v. Shapoorji Data Processing Ltd.
(supra).
Having answered the questions as above, we direct the matters to be placed for disposal
in accordance with law before appropriate Bench.

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