Charles v. A Jose, Vijaya Kumar and K Maniyan

OP(C) NO. 1984 OF 2022 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 18[TH] DAY OF OCTOBER 2022 / 26TH ASWINA, 1944** **OP(C) NO. 1984 OF 2022** **AGAINST THE ORDER/JUDGMENT IN OS 26/2013 OF SUB COURT,** ## **NEDUMANGAD** ## **PETITIONER/S:** CHARLES, AGED 68 YEARS, S/O PONNAN NADAR, RENJITH SADANAM, MANGALAKKAL, AMACHAL, AMACHAL P.O., KULATHUMMAL,THIRUVANANTHAPURAM DISTRICT, PIN - 695572 BY ADV LATHEESH SEBASTIAN ## **RESPONDENT/S:** 1 A JOSE, AGED 58 YEARS, S/O ASSARI, JOBY BHAVAN, VAYALIL HOUSE, KOVILOOR DESOM, AMBOORI P.O., THIRUVANANTHAPURAM, PIN - 695505 2 VIJAYAKUMAR, AGED 51 YEARS, S/O JOHNSON, KRIPA BHAVAN, THOTTAMPRA, VEERANAKKAVU VILLAGE, THIRUVANANTHAPURAM DISTRICT , PIN - 695572 3 K MANIYAN, AGED 61 YEARS, S/O KUTTAN NADAR, VAZHAVILA THADATHARIKATHU VEEDU, KULATHUMMAL, PLAVOOR, THIRUVANANTHAPURAM DISTRICT, PIN - 695572 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 18.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO. 1984 OF 2022 2 ## **JUDGMENT** Aggrieved by Ext.P4 order passed by the Court of the Subordinate Judge, Nedumangad in I.A.No.14/2022 in O.S.No.26/2013, the 1[st] defendant in the suit has filed the original petition. The 1[st] respondent is the plaintiff and the respondents 2 and 3 are the defendants 2 and 3 in the suit. 2. The facts in brief, relevant for the determination of the original petition, are: the 1[st] respondent has filed the above suit against the petitioner and the respondents 2 and 3, seeking damages on account of the loss sustained to him on the basis of an agreement. The petitioner is the owner of the property. The 1[st] respondent produced certain documents, which are insufficiently stamped and inadmissible in evidence, and have to be impounded. Accordingly, the petitioner filed I.A.No.14/2022 (Ext.P3) to decide the question of admissibility of the documents produced by the 1[st] OP(C) NO. 1984 OF 2022 3 respondent before proceeding with the trial. The court below, by the impugned Ext.P4, has disposed of Ext.P3 application holding that the question of admissibility of the agreements can be decided after taking evidence in the case. The procedure adopted by the court below is erroneous and wrong in view of the mandate under Order 13 Rule 3 and 4 of the Code of Civil Procedure, 1908 (in short, “Code”). Hence, the original petition. 3. Heard; Sri.Latheesh Sebtastian, the learned counsel appearing for the petitioner. In view of the limited relief that I propose to pass, I dispense with notice to the respondents. 4. Sri.Latheesh Sebastian argued that the course adopted by the court below is improper and irregular because the suit itself is based on the disputed documents. Therefore, the court below has to decide whether the documents are admissible or not before proceeding with the trial or marking the document in OP(C) NO. 1984 OF 2022 4 evidence. He relied on the decision of this Court in **Santhakumari vs. Raghavan Unni and another** [2014 KHC 715], to fortify his contention on the point. He prayed the original petition be allowed. 5. The point is whether there is any error or illegality in Ext.P4 order. 6. The petitioner's case is that the documents that have been produced by the 1[st] respondent are insufficiently stamped and are compulsorily registrable as contemplated under the law. Therefore, the said documents cannot even be provisionally accepted. 7. This Court in **Santhakumari** (supra) has held as follows: “11. R.3 of O.13 of the Code of Civil Procedure 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. **The expression used in R.3 is “may” and not “shall”. That does not mean that the Court has no power to exercise its jurisdiction under R.3** OP(C) NO. 1984 OF 2022 5 **whenever it thinks fit to exercise in the facts and circumstances of the case. If a document is not at all a valid document, it is the duty of the Court to reject that document, by exercising the jurisdiction under R.3 of O.13. However, the Court shall record the grounds of such rejection. If a document, which on the face of it is inadmissible or invalid, is admitted in evidence, it would cause prejudice to the opposite party. It would enable the party producing such document to lead irrelevant evidence at the time of trial of the case and the opposite party would be compelled to meet that evidence.** The contention of the learned counsel for the petitioner that rejection of such document could be made only when it is sought to be marked, is unsustainable. Under R.3 of Order XIII CPC, the Court has ample power to weed out such inadmissible document, or a document which is not a valid document at all in the eye of law. 12. In Chaganti Ventaka Bhaskar vs. C.Chandresekhar Reddy, AIR 2010 AP 155 and Sanjay Shrikishanji Somani and another v. Vishnupant Shankarrao Shahane, AIR 2008 NOC 58 (Bombay), it was held that rejection of irrelevant or inadmissible documents can be at any stage of the suit, as provided under R.3 of O.13 of the Code of Civil Procedre. In S.Kaladevi v. V.R.Somasundaram and others, 2009 (2) MLJ 361, it was held that an unregistered sale deed is inadmissible in evidence for want of registration and not of its terms can be admitted in evidence. It was also held that the Court would be OP(C) NO. 1984 OF 2022 6 justified in refusing to mark such a document as exhibit. In Ranajit Kanungo vs. Ibcon Pvt. Ltd., AIR 1982 Karnataka 219, it was held that even a document used during cross-examination of witnesses for the purpose of testing his veracity must satisfy the rule of relevancy and admissibility. In Mt.Sumitra Kuer v. Ram Khair Chowbey, AIR 1921 Patna 61, it was held that: “It is clearly the duty of the Judge, apart altogether from any objection by the parties or their pleaders, to exclude all irrelevant evidence”. 13. In Dwijesh Chandra Roy vs. Naresh Chandra Gupta AIR (32) 1945 Calcutta 492, the Calcutta High Court took the view that it is the duty of the Court to exclude all irrelevant evidence, even if no objection is taken to its admissibility by the parties”. 8. A reading of Order 13 Rule 3 of the Code and its interpretation in **Santhakumari** (supra) stipulates the Court has to decide the admissibility of the documents produced in the suit, before it is admitted in evidence. 9. In the case at hand, the court below on the finding that the question as to whether the subject matter in the agreement dated 10.11.2011 is movable or immovable property deemed it fit to postpone the OP(C) NO. 1984 OF 2022 7 question of deciding the admissibility of the document after taking evidence. Thus the court below has exercised its discretion to decide the question at the time of evidence of the 1[st] respondent. Going by the law laid down in **Santhakumari** , the court below has to decide the question of admissibility of the disputed documents first before going into the other facts in issue in the suit. With the above observation, the original petition is disposed of. Sd/- ## **C.S.DIAS, JUDGE** rkc/18.10.22 OP(C) NO. 1984 OF 2022 8 ## **APPENDIX OF OP(C) 1984/2022** PETITIONER EXHIBITS ExhibitP1 TRUE COPY OF THE PLAINT IN O.S NO.26/2013 OF SUB COURT, NEDUMANGAD ExhibitP2 TRUE COPY OF THE AGREEMENT EXECUTED BETWEEN THE RESPONDENTS 2 AND 3 DATED 10.11.2011 ExhibitP3 TRUE COPY OF THE I.A.NO. 14/2022 IN O.S NO.26/2013 FILED BEFORE THE SUB COURT, NEDUMANGAD ExhibitP4 TRUE COPY OF THE ORDER OF THE SUB COURT, NEDUMANGAD IN I.A.NO 14/2022 IN O.S NO.26/2013 DATED 23.09.2022