Franklin Fernandez v. Majo Stalin

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **THURSDAY, THE 27TH DAY OF OCTOBER 2016/5TH KARTHIKA, 1938** ## **OP(C).No. 138 of 2014 (O) --------------------------** **AGAINST THE ORDER/JUDGMENT IN OS 116/2009 of THE SUB COURT,ATTINGAL** **PETITIONER:-: --------------** **FRANKLIN FERNANDEZ, S/O.MANNACHAN FERNANDEZ, VILAYIL ROM HILL, PUTHUKURICHI P.O., KADINAMKULAM VILLAGE, THIRUVANANTHAPURAM.** **BY ADVS.SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V. SRI.GOVIND PADMANAABHAN** **RESPONDENT:-:** **---------------------------** **MAJO STALIN, W/O.STALIN, F.PEREIRA, SANTHI BHAVAN, PUTHUKURICHI P.O., KADINAMKULAM VILLAGE, THIRUVANANTHAPURAM - 695 614.** **BY ADV. SRI.M.R.SARIN** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 27-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(C).No. 138 of 2014 (O) --------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT P1. A TRUE COPY OF THE PLAINT IN O.S.NO.116 OF 2009 ON THE FILES OF THE SUB COURT, ATTINGAL.** **EXHIBIT P2. A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT IN O.S.NO.116 OF 2009 BEFORE THE SUB COURT, ATTINGAL.** **EXHIBIT P3. A TRUE COPY OF THE I.A.NO.22 OF 2014 IN O.S.NO.116 OF 2009 FILED BY THE PETITIONER BEFORE THE SUB COURT, ATTINGAL.** **EXHIBIT P4. A TRUE COPY OF THE I.A.NO.25 OF 2014 IN O.S.NO.116 OF 2009 FILED BY THE PETITIONER BEFORE THE SUB COURT, ATTINGAL.** **EXHIBIT P5. A TRUE COPY OF THE ORDER DATED 04.01.2014 IN I.A.NO.22 OF 2014 IN O.S.NO.116 OF 2009 OF THE SUB COURT, ATTINGAL.** **EXHIBIT P6. A TRUE COPY OF THE ORDER DATED 04.01.2014 IN I.A.NO.25 OF 2014 IN O.S.NO.116 OF 2009 OF THE SUB COURT, ATTINGAL.** ## **RESPONDENT(S)' EXHIBITS: NIL** ## **-----------------------** ## **/TRUE COPY/** ## **P.A TO JUDGE** ## **LSN** ## **'C.R'** ## **P.SOMARAJAN, J.** ------------------------------------------------------- ## **O.P(C) No. 138 of 2014** -------------------------------------------------------------Dated this the 27[th] day of October, 2016 ## **JUDGMENT** The petition is filed under Article 227 of the Constitution of India by the petitioner/plaintiff in I.A Nos. 22 of 2014 and 25 of 2014 in O.S No. 116 of 2009 of the Sub Court, Attingal, challenging the order dated 04.01.2014, by which both the applications were dismissed. The factual matrix of the case is as follows. The application in I.A No. 22 of 2014 in O.S No. 116 of 2009 is filed for receiving the documents on the file of the court. The other application I.A No. 25 of 2014 is filed for marking the documents produced along with the application. Both the applications were objected by the defendant/counter petitioner on the ground that, the examination of plaintiff was over and trial already commenced and that those documents were produced in a highly belated stage. 2. Heard Sri G.P. Shinod, the learned counsel appearing for the petitioner and Sri M R Sarin, the learned counsel appearing for the respondent. **O.P(C) No. 138 of 2014** **2** 3. The impugned order passed in I.A Nos. 22 of 2014 and 25 of 2014, are dated 04.01.2014. Admittedly, those two applications were filed after the examination of the plaintiff and completion of cross-examination. It was submitted by the learned counsel for the plaintiff/petitioner that a specific question was asked during the course of cross-examination of PW1/plaintiff with respect to the source of amount alleged to have been advanced to the defendant and also regarding the documents if any available to show the source of amount. In pursuant to the above said question, documents were produced along with the applications in I.A Nos. 22 of 2014 and 25 of 2014. The former one is for receiving the said documents on the file of the lower court and the latter one is for marking the same as Exhibits. The former one was dismissed by the lower court stating that, the plaintiff is not the custodian of the documents mentioned in the petition and that it was not produced from proper custody. The said application in fact filed for receiving the documents on the file of the court. There is a lot of difference between “receiving documents on the file of the court” and “acceptance in evidence”. The probative value of the documents or **O.P(C) No. 138 of 2014** **3** admissibility of the documents is normally available at the final stage viz., at the stage of final argument either in the suit or in the interlocutory application filed for any interim relief. It is really impermissible to jump into a conclusion on an earlier point of time regarding the probative value of documents produced in an application submitted for receiving the document. The only question which can be looked into by the court at the time of reception of document on the file is the material defect, if any, attached to the document, such as deficiency of stamp fee, substantial damages if any suffered by the document and the like. Its probative value cannot be considered on a petition, which was filed for receiving the documents on the file of the court. Mere receipt of documents in the file of the court, does not mean that it was accepted or admitted in evidence. The expression “admitted in evidence” stands for admitting a document on satisfying its probative value, relevance and admissibility in evidence, which requires elaborate consideration and it can be done only at the final argument stage. Order 13 Rules 3 and 4 of the Code of Civil Procedure are extracted below for reference: **O.P(C) No. 138 of 2014** **4** ## **R.3. Rejection of irrelevant or inadmissible** **documents.--** The Court may at any stage of the suit reject document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection. ## **R.4 Endorsements 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, on 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 and the endorsement thereon shall be signed or initialled by Judge. (emphasis supplied) **O.P(C) No. 138 of 2014** **5** 5. Rule 4 deals with the endorsement to be made when the document is admitted in evidence. Rule 4 is really the procedure to be followed on admitting a document in evidence. Rule 3 stands for rejection of irrelevant or inadmissible documents and the court may, at any stage of the suit, reject any document, which it considers irrelevant or otherwise inadmissible. Necessarily, the application of Rule 3 of Order 13 would arise before the acceptance of document in evidence (before admitting in evidence). The power under Rule 3 of Order 13 can be exercised at any stage of the suit but the questions which were available at that time are : 1. whether the document is irrelevant; or 2. considers as inadmissible otherwise. The expression “otherwise inadmissible” stands for fatal defect on the document, such as deficiency of stamp duty and substantial damage to the document making it as incomplete. The expression “irrelevant” stands for total irrelevancy of document in the subject matter or the dispute involved in the suit or the application as the case may be. The court should be more cautious while considering irrelevancy of the ## **O.P(C) No. 138 of 2014** **6** document produced in relation to the subject matter or dispute involved in the suit or proceedings and hence has to satisfy itself the total irrelevancy at the stage of application of order 13 Rule 3 CPC. When there is objection in marking the documents, the procedure to be followed by the trial court is to mark the documents tentatively as held in **Bibin Shantilal** **Panchal v. State of Gujarat and another [(AIR) 2001 SC 1158]** and **Nambi Narayanan v. State of Kerala and others (2010 (1) KHC 293).** 6. The legal position can be summarized as follows: (1) It is not permissible to reject a document produced along with an application for receiving the same on the file of Court, at its initial stage unless the same suffers any material defect as to its stamp duty payable, or due to any substantial damage making the document incomplete and unacceptable. (2) Receipt of document on the file of Court cannot be substituted in the place of acceptance in evidence. (3) The question of probative value of the document produced would arise only at the final hearing on the question of grant of any interim relief based on right or entitlement of parties, either at the interim stage or at the final stage of the **O.P(C) No. 138 of 2014** **7** suit. (4) The question whether the document produced from a proper custody is a matter relating to the admissibility of the said document in evidence and hence can be raised only at the time of final hearing of the suit or the interim application, as the case may be. (5) When objections are raised with respect to the admissibility of document, the same can be marked tentatively subject to the objections as held in **Bibin Shantilal Panchal & Nambi Narayanan's cases** (supra). (6) It is up to the person who produces the document to decide in what manner and through whom the document has to be proved either by adducing direct evidence or by other methods available under law. The duty of the Court is to look into the question as to whether the party has complied with the requirement for proving a document in accordance with the law in force. (7) The requirement under Order 41 Rule 27 CPC before the appellate court are in addition to the requirement stated above. The Appellate Court is duty bound to satisfy itself with respect to the requirement as mentioned above **8** ## **O.P(C) No. 138 of 2014** besides the satisfaction of requirement under Order 41 Rule 27 CPC. 7. So both the orders does not reflect the proper application of law in force and hence both the orders of the lower court are liable to be set aside and I am doing so. The lower court is hereby directed to receive the documents on the file of the court and to mark the same tentatively and proceed further in accordance with law. The original petition is disposed of accordingly. No order as to costs. **P.SOMARAJAN JUDGE** lsn