Allowed

Raghurai Tamba, Thr. Its Partner, Girish R. Tamba., v. Benevolo Boaventura Agnelo De Souza and 2 Ors.

Bombay HC23 Feb 2021WP/806/2019

Case brief

AI extract

What is this about?

In a writ petition, the High Court addressed the Trial Court's refusal to allow the defendant to mark xerox copies of documents that the plaintiffs had earlier filed in their plaint but subsequently abandoned. The Court distinguished between challenging a document's admissibility and marking it as secondary evidence to avoid procedural delay.

What did the court decide?

Impugned order of 26/08/2019 set aside; Trial Court directed to mark the documents at the petitioner's behest without prejudice to the respondents' rights.

Raghurai Tamba, Thr. Its Partner, Girish R… — Civil Procedure and Limitation | Bombay HC (2021)

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IN THE HIGH COURT OF BOMBAY AT GOA

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WP/806/2019 M/S. RAGHURAI TAMBA, THR. ITS PARTNER, GIRISH R. TAMBA., …..... PETITIONER VS BENEVOLO BOAVENTURA AGNELO DE SOUZA AND 2 ORS., ….... RESPONDENTS

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Mr. G. Agni with Mr. Tanmai T. Gawas, Advocates for the Petitioner.

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Mr. P. A. Kamat, Advocate for the Respondent nos.1 to 3.

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CORAM: DAMA SESHADRI NAIDU, J. DATE: 23rd FEBRUARY 2021.

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ORDER:

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In this writ petition, the question concerns the marking of doucments. In the suit, the petitioner is the defendant; the respondetns are the plaintiffs. Along with the plaint, the respondents produced certain documents, but a few of them they abandoned; they did not want to rely on them. Nor have they attempted to mark them. Nevertheless, the petitioner, as the defendant, wanted to use those documents; they are xerox copies of certified copies the respondents obtained from the public officials concerned, though. In fact, the petitioner cross-examined the respondents' witness--

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PW2--based on those docuents. But the respondents objected to the petitioner's marking those documents. And the trial Court sustained that objection. So, the petitioner has filed this writ petition.

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Shri G. Agni, the learned counsel for the petitioner, has assailed the impugned order, essentially, on four grounds. First, the respondents themselves filed the documents along with the plaint in the suit. They are, in fact, xerox copes of the certified copies they themselves secured from the Court of the Deputy Collector and Sub Divisional Magistrate. Second, the respondents have not disputed the proceedings which engendred those documents. In fact, the respondents were also parties to those proceedings And, fourth, the attorney of the Comunidade has already answered all the substantial questions in the cross examination, and those questions concerns these documents. Therefore, the respondents, accoridng to him, are estopped from raising any objection to the petitioner's marking those admitted documents.

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Shri Agni, in the alternative, has submitted that most of the documents were issued by public authorities. Therefore, any secondary evidence of public documents, he points out, can be admitted. Besides, the respondents have had ample knowledge about the proceedings before the Revenue Court, as they were parties to them. They have also extensively pleaded in the suit about those proceedings. Even the list of the documents annexed to the plaint does reflect these documents. In this process, the

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learned counsel has inssisted that the trial Court has not assigned any reason why those documents should not marked despite the adversaries admitting those doucments. According to him, even Xerox copies of admitted documents can be marked.

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In the end, Shri Agni has submitted that once the physical existence of the documents has been admitted, there ought to be no technical hurdle for their marking, though both parties may have all their pleas preserved as to the legal fallout of those documents. In support of his contentions he has relied on: (1) Bipin Shantilal Panchal Vs. State of Gujarat and anr. -2001 0 CrLJ 1254; (ii) Karthik Gangadhar Bhat Vs. Nirmala Namdeo Wagh & anr. , 2017 (6) ALL MR 769; (iii) Zarina Siddiqui Vs. Ramalaingam Alais R. Amarnathan , (2015) 1 SCC 705; (iv) Mr. Hemendra Rasiklal Ghia Vs. Subodh Mody , 2008 6 ALMR 352.

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Therefore, Shri Agni, the petitioner's counsel, has urged this Court to allow the Writ Petition.

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In reply, Shri P. A. Kamat, the learned counsel for the respondent nos.1 to 3, has submitted that the trial Court's order is unassailable. According to him, there is no gainsaying the fact that the documents the petitioner wanted to rely on are xerox copies; they cannot be termed even secondary evidence. To counter the submissions advanced by the petitioner's counsel, Shri Kamat insists that merely because the respondents, as the plaintiffs, filed those inadmissible documents before the Court, that will not

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prevent them from objecting to the document marking. In this context, he points out that mere physical presence of those documents on record does not give any legitimacy to the documents; only the marking will.

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At any rate, Shri Kamat has also submitted that even the attorney of the Comundiade as PW.2, in his cross examination, has deposed that the parties concerned must have obtained those documents by fraud. In other words, the documents have come out of collusive proceedings. He, therefore, urges this Court to dismiss the Writ Petition.

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Heard Shri Gaurish N. Agni, the learned counsel for the petitioner; and Shri P. A. Kamat, the learned counsel for the respondent nos.1 to 3.

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Marking the documents has always been procedurally a contentious issue; cases have dragged on for eons with the parties' taking objections to the marking of documents. Invariably, the issue would end up, first, in the High Court, later, even before the Supreme Court. Meanwhile, the trial gets stayed, and the case gets caught in a time-tangle. To minimise the delays, the Supreme Court and, if we confine ourselves territorially, the High Court of Bombay have given a slew of practice guidelines. That said, the issue refuses to die down.

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The precedents cited at the Bar unquestionably bind me. But we may, given the narrow scope of the issue, obviate any discussion on the prcedential polimics here. First, the respondents have never disputed the existence of these documents, for they themselves produced them before the

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Court. True, those documents are neither primary nor secondary; they are xerox copies. But, based on those documents, the petitioner's counsel extensively cross-examined PW2. The witness has not refused to answer those question on the premise that the questions relate to an inadmissible set of documents. On the contrary, he answered almost all questions. All along, the respondents themselves pleaded in thier plaint about the existence of these documents. Of course, it was with a caveat that the proceedings were fraudulent and that those documents would not bind them.

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That said, marking of the documents and its legal impact on the parties are two different things. Here, the marking only obviates the rigmarole of the petitioner's producing certified copies of documents, the existence of which stands already admitted by the adversary. That is the fact even if we ignore that the respondents themselves produced them.

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Under these circumstances, I set aside the impugned order dated 26/8/2019 and direct the trial Court to mark those documents at the petitioner's behest, but that it is without prejudice to the rights and contentions of the respondents.

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In other words, either party to the suit can always, during the trial, sustain a plea to the Court's satisfaction how and why those documents are relevant or irrelevant; how and why those documents bind or do not bind the parties. Neither party stands prejudiced on this count.

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Subject to the above observations, I allow the Writ Petition.

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DAMA SESHADRI NAIDU, J.

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AP/-

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MARIA Digitally signed by MARIA AURA AURA PEREIRA Date: 2021.03.04 PEREIRA 14:55:03 +05'30'