Judgment:
ORAL JUDGMENT :
1. Rule, with the consent of the parties, made returnable forthwith and heard.
2. The above petition filed under Articles 226 and 227 of wp264.11.odt 3 the Constitution of India takes exception to the order dated 19/11/2010, pertaining to the document styled as 'Sammati Patra' in respect of which document evidence was recorded on the said day. It has been held that in the absence of registration the said document is not admissible in evidence and hence it cannot be exhibited.
3. The issue as regards the exhibition of the said document had reached this court earlier against the order which came to be passed by the Trial Court on 21/1/2011. By the said order, it was held that the said document is not a Relinquishment Deed and therefore it need not be registered. It was further held that the registration of the said document was not mandatory. In so far as the rests of the objections were concerned, it was held that the said objections can very well be considered on merits at the time of filing of the documents in the suit. The Writ Petition filed against the said order dated 21/1/2011 being Writ Petition No.1122 of 2009 was disposed of by this court and the relevant excerpt of the said order is reproduced herein under -
"After hearing the respective parties, I find that the objection by the present petitioner to alleged Sammati Patra was that it was in fact wp264.11.odt 4 a relinquishment deed and it is not pleaded. The records do not show that existence of document was in dispute. In these circumstances, as the petitioner had questioned very nature of the document and if the document is held to be relinquishment deed, it require registration, that aspect together with objection to its admissibility is kept open. The impugned order dated 21/1/2009 passed below Exh.1 in Special Civil Suit No.10/2001 is modified to that extent only.
Hence, the issue as to whether the said document is Relinquishment Deed together with the objections to its admissibility was kept open by this court. Thereafter, the evidence was recorded and during the course of the recording of evidence, the Trial Court by an order dated 19/11/2010 has ruled against the admissibility of the document which has given rise to the present petition.
4. The principal contention of the learned counsel for the petitioner is that the admissibility of the said document ought to have been decided by the Trial Court prior to the decision in the wp264.11.odt 5 said suit and could not have been decided in the course of the recording of evidence. To buttress the said submission, the learned counsel for the petitioner placed reliance on the Full Bench judgment of this court reported in 2008(6) Mh.L.J.886 in the matter of Hemendra Rasiklal Ghia ..vs.. Subodh Mody. The Full Bench of this court, as regards the admissibility of the documents and the stage at which the objection has to be decided, has culled out three categories of documents which have been mentioned in paragraph 71 of the said judgment. The said paragraph is reproduced herein under -
"71. The admissibility of the document in evidence may be broadly classified into three classes - (i) that objection to the document which is sought to be proved is itself insufficiently stamped and the objection relates to deficiency of stamp duty of the document; (ii) where the objection does not dispute admissibility of document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient; and (iii) the objection that the document which is sought to be proved is wp264.11.odt 6 ab initio inadmissible in evidence."
There can be dispute as regards the fact that the document, in the present petition i.e. Sammati Patra, is referable to category (iii). of the documents mentioned in paragraph 71, in so far as the said category of documents is concerned, the manner in which the objections in respect of the admissibility of the said documents, is laid down in paragraph 76 of the said Judgment which is reproduced herein under -
76. In the third case merely because a document has been marked as "an exhibit", an objection as to its admissibility is not excluded. It is available to be raised even at large stage or even in appeal or revision. There is no question of inadmissible documents being read into evidence merely on account of such documents being given exhibit numbers in affidavit filed by in examination-in- chief or while recording oral evidence. For example in case of unregistered sale-deed or gift- deed or lease-deed requiring registration, no evidence of the terms thereof can be given. On the ground of public policy, evidence derived from unpublished official records of the State cannot be given except with the permission of the head of the department concerned as laid down wp264.11.odt 7 under Section 123 of the Evidence Act. Such a document, therefore, can be tentatively exhibited and the decision thereon can be postponed till the suit reaches the stage of judgment. However, such objection has also to be decided before the judgment is delivered. The objection to the admissibility of such evidence can always be taken at any stage of the suit.
The learned counsel for the petitioner relying upon the said judgment, therefore, contended that the Trial Court would be free to decide the admissibility of the said document i.e. Sammati Patra before the judgment is delivered.
5. Per contra, it is submitted by Shri Sirpurkar, the learned counsel for the respondent no.1 herein that the issue as regards whether the document i.e. Relinquishment Deed is admissible is kept open by this court in the earlier round of litigation and nothing prevented the Trial Court from adjudicating upon its admissibility.
6. Having heard the learned counsel for the parties, in my view, the impugned order cannot be sustained on the touch stone wp264.11.odt 8 of the judgment of the Full Bench (supra) in Hemendra Rasiklal Ghia's case. Though the issue as regards whether the document is a Relinquishment Deed and objection thereto was kept open in terms of the judgment of the Full Bench, the said objection ought to have been decided by the Trial Court prior to delivering of judgment. In that view of the matter, the impugned order dated 19/11/2010 is quashed and set aside. Resultantly, the issue as regards the admissibility of the document would be decided in terms of the law laid down by the Full Bench in Hemendra Ghia's case (supra), the trial court would be obligated to decide the admissibility of the said document prior to pronouncement of the judgment. Rule is accordingly made absolute in the above terms with parties to bear their respective costs.