Judgment:
S.K. Mookherjee, J.
1. The present Revisional application is directed against Order No. 76 dated 6th May, 1992 passed by the learned Additional District Judge, 14th Court, Alipore, in Matrimonial Suit No. 59 of 1988, whereby the learned Additional District Judge rejected an application preferred on behalf of the husband for expunction of Exhibits A and A-1 from the records of the case. The said two exhibits are a prescription and a medical certificate granted by Dr. Ranjit Kumar Panja, a wellknown Dermatologist and relates! to the wife/opposite party. The said two documents were tendered to the husband while he was being cross-examined and on the basis of the statement made by him in cross-examination, these were marked as exhibits in the aforesaid manner.
2. It is pertinent to note, at this stage that the suit for divorce had been filed by the husband, Inter alia, on the ground of cruelty, predominantly mental, by alleging that the wife/opposite party had boils and scars all over the body and was thus suffering from special type of skin disease which was incurable and the marriage was solemnized on suppressing such ail-meat.
3. The short question which has been raised in this Revisional application is as to whether the learned Trial Judge should have allowed the prayer for expunction of these exhibits as inadmissible on the ground that the same should not constitute a part of the records without Dr. Panja being called to the witness box. The question, though apparently simple, has assumed a complex character by the ingenuity and forensic dexterity of the learned Advocates, representing the contesting parties, and as a result of their endeavour to interprete the large number of decisions, cited in justification of their respective submissions and view points. For the purpose of record, we may state that the following decisions were cited in course of hearing.
: [1972]2SCR646 .
4. On a careful perusal of the ratios propounded by the aforesaid decisions, it cannot be disputed that admission of such documents has been apparently deprecated and discouraged. Mr. Dasgupta, relying upon the said decisions, has emphatically argued that the documents in the instant case, in the context of the ratios propounded in the said decisions, must be treated or taken to be inherently inadmissible as 'worst form of hearsay evidence' and must not be allowed to form part of the records, to avoid any influence on the decisions to be made ultimately in the suit. On the basis of such reasoning, he has assailed the propriety of the impugned order and has made a prayer that this Court should allow the prayer of the husband-petitioner for expunction.
5. Mr. Roy Chowdhury, on the other hand, has distinguished all the said decisions by a broad fact that the occasion for consideration of such a point about admissibility of documents of the nature of those as are found in the present case, arose only after conclusion of the trial and as such it was possible for the higher Court to find out the nature of the user of such documents in the said cited cases and classify the same as to be hearsay evidence and declare that the same were inherently inadmissible. In the present case, according to Mr. Roy Chowdhury, such a stage is yet to arrive and as such, it would be premature to ask the Court to deal with the prayer for expunction of the documents, without knowing the purpose of the manner of utilisation of the same as corroborative evidence.
6. We have carefully considered the respective submissions, as summarised hereinabove, and also the ratios propounded in the cited decisions. In our view, in approaching a problem of the present nature, it is to be borne in mind that admissibility of a document has to be judged upon consideration of the nature of the fact in issue or relevant fact and the purpose or the manner in which the document is sought to be utilised as a corroborative evidence. It is further to be borne in mind that the Evidence Act has, by statutory provisions, rendered evidence, which strictly fall within the category of hearsay evidence, under certain circumstance, to be admissible into evidence and also to have probative value. Except those cases, more admissibility does not amount to acceptance of probative value of a document. In other words, even after admission and after being marked as exhibit, a document may be found to be of no probative value whatsoever. Apart from that, the Court has been vested with ample power in directing expunction of an exhibited document, at any stage of the suit, if it considers the same to be irrelevant or otherwise inadmissible having regard to the grounds of objection. In this context it is to be remembered further that a document, which is inherently inadmissible, cannot be admitted even in the absence of any objection. But, in the case of a document, which does not suffer from such inherent infirmity, failure to raise objection may be treated as waiver of such objection on the part of the contesting party resulting in loss of his right to ask for expunction of the document. This distinction has been taken note of in the Law of Evidence by Woodroffe and Ameer Ali, 16th Edition at page 1546 where the authors have observed :
'Evidence of a statement made to a witness by a person, who is not himself called as a witness, will be hearsay and inadmissible, when the object of the evidence is to establish what is contained in the statement. It is not hearsay, and is admissible, when, it is proposed to establish by the evidence, not the truth of the state-meat but the fact that it had been made.'
7. The said principle has been stated judicially in some decisions of this Court following earlier Privy Council decision. In the case of Kamal Krishna Deb. and Anr. v. Birju Kumvakar and Anr., reported in 72 CWN 279, Bijayesh Mukherji, J. in paragraph 25 of his judgment noticed the distinction between the factum of a statement and the truth thereof and holds that the former does not give rise to hearsay but the latter does. In support of the said conclusion. His Lordship referred to a Privy Council decision in the case of Subramanian v. Public Prosecutor reported in (1956) 1 WLR 965 at page 970 where the view of the Privy Council was stated in the following manner :
'Evidence of a statement made to a witness by a person who is not himself called as a witness, may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by evidence, not the truth of the statement but the fact that it was made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness............in whose presence it was made : oral evidence must, in all cases whatever, be direct ; that is to say --if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it.'
8. His Lordship again sitting in a Division Bench with Mr. Justice S.K. Dutta, J. approved the said ratio propounded by him singly, in the case of Sm. Tushar Kana Devi v. Bhowani Prosad Roy Chowdhury reported in 73 CWN 143 in paragraph 17 whereof the following statement has been made :
'There is a difference between the factum of a statement and the truth thereof. If all that is in issue here is : whether or not Badal's mother made a statement like that attributing all this to the respondent husband, such statement may not be hearsay and is admissible in evidence. But if the truth of what Badal's mother says is at issue--as it is very much indeed--the statement she attributes to the respondent husband degenerates into hearsay and is clearly inadmissible, as is the law laid down by the Privy Council in Subramaniam v. Public Prosecutor, (1956) 1 WLR 965. Once it goes down as hearsay, the fact that it is contained in an exhibit of the appellant's adversary will not elevate it to the height of legal evidence. It is not merely a question of mode of proof here and waiving such a mode, simply standing by, that is, without raising any objection, Had that been so, the outlook would have been otherwise. It is a question which goes much deeper : the evidence itself being inadmissible, the worst type of hearsay as it is, in the absence of Badal's mother as a witness.'
9. The last decision we shall refer to in this connection is in the case of Sachindra Nath Chatterjee v. Sm. Nilima Chatterjee reported in : AIR1970Cal38 , where again Hon'ble Mr. Justice Bijayesh Mukherji, sitting in Division Bench with Mr. Justice S.K. Dutta, J. reiterated the said position in paragraph 126 of the said judgment though on the materials in the said case, the evidence which was under consideration was treated as hearsay and as such inadmissible.
10. All the above decisions and the ratios propounded therein clearly and unequivocally lay down that unless a document or a statement is inherently inadmissible the same deserves consideration in course of adjudication and depending on the facts in issue or relevant facts in connection therewith, the object and purpose for which such a document can be utilised may be decided or fixed by the concerned patties and only after such objects and purpose for which the document in question or the statement, which apparently is hearsay, is brought to the notice of the Court or the Court becomes aware of the same, can the Court decide the admissibility or probative value thereof In the instant case, it is too early to say for what purpose the disputed documents would be utilised. Whether for the factum of of medical examination by Mr. Panja or for relying upon the contents of the said documents as true and correct and, accordingly, it is not possible for the Court to allow the prayer for expunction made on behalf of the husband. Such a stage can be reached only at the time of pronouncement of the judgment or at the earliest after the arguments are complete. Accordingly, we cannot say that there is any infirmity in the order passed by the learned Trial Judge not to speak of any jurisdictional infirmity, calling for an interference in exercise of our power of revision.
11. The Revisional application, thereof, is dismissed. The impugned order, as passed, is affirmed.
We, however, make it clear that at the time of argument, if so advised, any of the parties may raise the contention for adjudication by the learned Judge.
There will be no order as to costs.
12. A prayer for stay of operation of the impugned order is made and also for continuance of the order of stay of further proceedings, but such prayer is refused by us in the facts and circumstances of the case.
13. The learned Advocates for the parties may convey the gist of the order to the Trial Court so that it can proceed with the hearing of the suit.
14. If urgent certified copy of this order is applied for by the parties, the department is directed to deliver the same within three weeks from the date of deposit of the requisite stamps and folios.
Mr. A.K. Bhattacharji, J.
I agree.