K.M. Laji v. Jayasankar, Balaram, Jayasimhan, Baiju V.R, and Varkala Saneesh

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 13[TH] DAY OF DECEMBER 2022 / 22ND AGRAHAYANA, 1944 ``` ``` OP(C) NO. 2387 OF 2022 ``` ``` AGAINST THE ORDER DATED 16.11.2022 IN I.A.NO.6/2022 IN OP(ELE)NO. 9/2021 OF MUNSIFF COURT,VARKALA ``` ``` PETITIONER/PETITIONER/RESPONDENT NO.1: ``` ``` K.M.LAJI AGED 62 YEARS S/O.MADHAVAN, SEEMANTHINI, SIVAGIRI ROAD, SREENIVASAPURAM.P.O, VARKALA VILLAGE., PIN – 695141 BY ADVS.BENNY GERVACIS BEA MARY BENNY ABI BENNY AREECKAL ``` ## `RESPONDENTS/ COUNTER PETITIONERS/ PETITIONER AND RESPONDENTS 2` ``` TO 5: ``` ``` 1JAYASANKAR AGED 49 YEARS S/O.PUSHPANGATHAN, PRASANTHY, SREENIVASAPURAM.P.O, VARKALA VILLAGE PIN – 695145 2BALARAM AGED 60 YEARS S/O.VISHWAMBARAN, KRISHNATHEERAM, SREENIVASAPURAM.P.O, VARKALA VILLAGE, PIN – 695145 3JAYASIMHAN, AGED 54 YEARS S/O.RAVEENDRANATHAN NAIR, CHARUVILA, SREENIVASAPURAM.P.O, VARKALA VILLAGE, PIN – 695145 4BAIJU.V.R AGED 47 YEARS S/O.VISHWANATHAN, ``` ``` O.P.(C)No.2387/2022 ``` ## `-:2:-` ``` VISHWANATHAM, SREENIVASAPURAM.P.O, VARKALA VILLAGE, PIN – 695145 ``` ``` 5VARKALA SANEESH AGED 44 YEARS S/O.SATHYAN, THAKIDIVILAVEEDU, MAITHANAM, VARKALA.P.O, VARKALA VILLAGE, PIN – 695141 ``` ``` BY ADVS.RAJESH R.(VARKALA) R M.KIRANLAL(K/963/2009) MANU RAMACHANDRAN(K/917/2010) SAMEER M NAIR(K/000481/2017) GEETHU KRISHNAN(K/001199/2021) SAILAKSHMI MENON(K/1518/2021) ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` O.P.(C)No.2387/2022 ``` ``` -:3:- ``` Dated this the 13[th] day of December, 2022 ## **J U D G M E N T** Aggrieved and displeased with the order dated 16.11.2022 in I.A.No.6/2022 in O.P.(Ele)No.9/2021 (Ext P4) passed by the Court of the Munsiff, Varkala, the first respondent before the court below has filed the original petition. The first respondent is the petitioner and the respondents 2 to 5 are the respondents 2 to 5 before the court below. 2. The antecedent facts leading to Ext P4 order, in a nutshell, are: - (i) The first respondent has filed O.P. (Ele)No.9/2021, to declare the election of the petitioner as void, on the allegation that he had filed a false affidavit and suppressed material facts. - (ii) The original petition has been opposed by the ``` O.P.(C)No.2387/2022 ``` ## `-:4:-` ## petitioner through Ext P2 written objection. - (iii) The parties went to trial on 15.10.2022. A witness on the side of the first respondent was examined as PW1 and Exts A1 and X1 series and X2 were marked through him. - (iv) Thereafter, the suit was adjourned to 22.10.2022. On that day, the first respondent filed his affidavit in lieu of chief examination and Exts A2 to A11(a) were marked in evidence. - (v) Although the petitioner objected to the marking of above referred documents, the same were marked in evidence. - (vi) The petitioner filed I.A.No.6/2022 (Ext P3), to hear the admissibility of Exts A2 to A11(a). - (vii) The court below, by the impugned Ext P4 order, dismissed Ext P3 application. Ext P4 is ex facie illegal and wrong. Hence, the original petition. 3. Heard; Sri. Benny Gervacis, the learned counsel appearing for the petitioner and Sri. R.Rajesh ``` O.P.(C)No.2387/2022 ``` ``` -:5:- ``` (Varkala), the learned counsel appearing for the first respondent. Even though notice has been served on the learned counsel appearing for the respondents 2 to 5 before the court below and a memo is filed to the effect, there is no appearance for them. 4. The point is whether there is any illegality in Ext P4 order?. 5. The crux of the dispute revolves around the admissibility of Exts A2 to A11(a) documents, which have been marked through the first respondent. 6. In **PRS Hospital (M/s.) Thiruvananthapuram and Another v. P. Anil Kumar** [2021 KHC 1], a Division Bench of this Court has succinctly laid down the law and the manner in which courts should rely upon documents produced in a proceeding. It is profitable to extract paragraph No.26 of the said judgment, which reads as follows: “26. There are four stages before a Court of law can ``` O.P.(C)No.2387/2022 ``` ``` -:6:- ``` rely upon a document. They are (i) marking of a document, (ii) admissibility of a document, (iii) proof of contents of the document, and (iv) evaluation of the document. Reliance upon a document can be made by the court only if all the above four stages are complied with or satisfied. By the mere marking of a document, it does not become admissible in evidence. Further, the marking of a document and being admissible in evidence, will still not render the contents of a document as 'proved'. When a document, admissible in evidence, is marked, still to be relied upon by the courts, its contents will have to be proved. For the contents of a document to have a probative value, the person who wrote the contents or is aware of the contents and its veracity must be invited to give evidence about it. It is thereafter the last stage i.e. evaluation takes place. Evaluation of the document is a judicial exercise. Unless all these stages are done, a court of law cannot rely upon any document produced or marked before it.” 7. The proviso to Rule 4 of Order 18 of the Code of Civil Procedure, 1908, deals with the manner of proof and admissibility of documents produced along with the chief affidavit. 8. In the case at hand, the first respondent has filed his proof affidavit and marked Exts A2 to A11(a). ``` O.P.(C)No.2387/2022 ``` ``` -:7:- ``` The court below has not considered the admissibility, proof and evaluated the documents, before arriving at the conclusion in Ext P4 order, as laid down in **PRS Hospital** (supra). 9. Merely because a document is marked in a chief affidavit does give leeway to the courts to accept the document in evidence, even if the respondent does not object to the marking. It is upto the court below to satisfy itself that the documents produced before it fulfill the four ingredients laid down in **PRS Hospital** (supra), before accepting the document on record. 10. In the instant case, it is the specific case of the petitioner that the documents produced as Exts A2 to A11(a) are inadmissible in evidence. 11. It was in the above eventuality, that the petitioner filed Ext P3 application, which has been perfunctorily rejected by the court below through the impugned order, on the ground that the admissibility of ``` O.P.(C)No.2387/2022 ``` ``` -:8:- ``` the document was not got objected to by the petitioner. 12. In the light of the law laid down in **PRS Hospital** (supra), I am of the definite view that the finding of the court below in the impugned order is erroneous and warrants to be interfered by this Court under Article 227 of the Constitution of India. In the result, I allow the original petition as follows: - (i) Ext P4 order is set aside. - (ii) Ext P3 application is allowed. - (iii) The court below shall consider the admissibility, proof and evaluate Exts A2 to A11(a) before deciding to accept the documents in evidence. - (iv) As this Court has already by judgment dated 26.10.2022 in O.P.(C)No.1225/2021 directed the court below to consider and dispose of the original petition within six months from the date of receipt of a certified copy of the ``` O.P.(C)No.2387/2022 ``` ``` -:9:- ``` judgment, the said time period shall be adhered to in disposing O.P.(Ele)No.9/2021. Sd/- ## **C.S.DIAS,JUDGE** DST/13.12.22 //True copy/ P.A.To Judge ``` O.P.(C)No.2387/2022 ``` ``` -:10:- ``` ## `APPENDIX` ``` PETITIONER EXHIBITS ``` ``` PETITIONER EXHIBITS EXHIBIT P1 ``` ``` TRUE COPY OF THE OP (ELECTION PETITION) NO.9 OF 2021 DATED 15-1-2021 ``` ``` EXHIBIT P2 ``` ``` TRUECOPYOFTHEWRITTEN STATEMENT/OBJECTION DATED 4-10-2021 FILED BY THE PETITIONER ``` ``` EXHIBIT P3TRUE COPY OF THE ABOVE I.A.6/2022 DATED 16- 11-2022 PREFERRED BY THE PETITIONER ``` ``` EXHIBIT P4TRUE COPY OF THE ORDER DATED 16-11-2022 OF THE MUNSIFF COURT, VARKALA IN I.A.NO.6/22 IN OP (ELECTION) NO.9/2021 ``` ``` DOCUMENT NO.1 ``` ``` True copy of the memo with the acknowledgement of receipt of the copy of the OP(C) by the counsel for the 2nd respondent ``` ``` RESPONDENT'S EXHIBITS: NIL ```