Krishna Vs. Sanjeev - Court Judgment

Excerpt:
(a) civil procedure code, 1908 (amendment act of 1999 and 2002) - order 13 rule 4, order 18 rule 4--in the affidavit, the plaintiff marked the suit document as per ex.p.1. the learned trial judge took the said affidavit as oral evidence by way of examination-in-chief of the plaintiff. further, in the order sheet it is stated that the documents exhibits p1 to p4 or marked and then the case was posted for cross-examination of pw1. defendant made an application for recalling the earlier order marking the said document. the said application is purported to be under section 34 of the karnataka stamp act read with section 151 of cpc requesting the court to hear the admissibility of the document ex.p1. the learned trial allowed the said application filed by the defendant. the correctness and the legality of the same questioned in this case . ;the plaintiff has not entered the witness box to tender the disputed document in the examination-in-chief. the learned trial judge while accepting the affidavit acting on the contents of the affidavit, has marked the said documents. thus preventing the defendant an opportunity to raise objections regarding the admissibility of the said document, thus taking away a valuably right accrued to him under section 34 and 35 of the karnataka stamp act. when the fact is brought to the notice of the court, realizing the mistake, the court in its discretion thought it fit to recall the said order in order to do justice between the parties, which cannot be found fault with. ;(b) evidence - difference between marking and admitting a document--held--marking of a document is a ministerial act whereas, admitting a document in evidence is a judicial act, before a document is let in evidence, there should be a judicial determination of question whether it can be admitted in evidence or not. in other words, the court admitting a document must have applied its mind consciously to the question whether the document was admissible or not. ;(c) civil procedure code, 1908 (central act no. 5/1908) - order 13 rule 4(1)--prescribes that there shall be an endorsement on every document which has been admitted in evidence in the suit--can such endorsement be considered sufficient to hold that the document has been admitted. held--the endorsement shall be signed and initiated by the judge. the document lacking the last requirement cannot be said to be admitted in evidence. the mere fact that the endorsement on the document as required under order 13 rule 4 cpc has been made should not in every case be considered sufficient to hold that the document has been admitted. placing the judge's initials on a document by a third person by means of a rubber stamp cannot amount to initialing by the judge. ;(d) civil procedure code, 1908 (central act no. 5/1908) - meaning of production of document, admitting the said document in evidence, marking of the said document which is admitted in evidence and proof of such document. held--at the time of admitting the document in evidence it is open to the opposite party to raise objection regarding the admissibility of the document and if objections are raised, the court is under an obligation to decide the said objection. it is after the said objection is decided by the court and if it decides to receive the document in evidence, the said document is marked for the purpose of identification. thereafter the proof of said document would arise. after the evidence is adduced or the final hearing, it is open to the parties to address arguments regarding the admissibility of the document, to the relevancy of the document and proof of said document and the court will decide all these questions in the course of its judgment. (para 13) ;(e) civil procedure code, 1908 (amendment act of 1999 and 2002) - proper procedure to be followed by courts in respect to examination-in-chief and production and marking of documents and in respect of affidavit evidence. held: a) when the case is posted for evidence, the examination-in-chief of a witness shall be on affidavit unless ordered otherwise. ;b) when the affidavit is sought to be filed on the date the case is posted for evidence, the court should insist that the witness whose affidavit is sought to be filed enters the witness box, takes oath and thereafter he/she shall handover the affidavit containing his/her examination-in-chief to the court. in other words, the court should not receive the affidavit containing the examination-in-chief of a witness by his/her counsel, thus preventing the possibility of the witness disowning such affidavit. ;c) after the affidavit is received through the witness, the court shall call upon the witness whether he/she has any documentary evidence to tender and if the witness tenders any documentary evidence, the same shall be received by the court subject to objection raised by the opposite party, ;d) if objections are raised, the court should judicially determine the question whether it can be admitted in evidence or not, then and thereof if the objection relates to insufficiency of stamp duty. if the objection is on any other ground, the court shall follow the procedure as laid down in the case of k. anjaneya setty v. k.h. ranganath setty reported in ilr 2002 karnataka 3613. ;e) if the court decides to admit the document, than it shall follow the procedure prescribed under order 13 rule 4(1) cpc and mark the document. ;writ petition is rejected - mineral concession rules, 1960rules 35 & 59 (1): [p.d. dinakaran cj., & v.g. sabhahit, j] grant of mining lease - prayer sought for, pursuant to the notification issued under rule 59(1) of the rules - preferential right of certain persons in the light of rule 35 of mineral concession rules -consideration of - held, the petitioner is entitled for an opportunity before refusing or granting lease as per rule 26 of the mineral concession rules. the matters that are required to be considered under section 11(3) of the act and the preferential right of certain persons in the light of rule 35 of the mineral concession rules therefore, writ of mandamus is necessary to direct the respondents to expeditiously process, scrutinize and consider through single-window system the applications of the petitioner received pursuant to the notification dated 15th march, 2003 following the same yardstick adopted in respect of similarly placed cases, taking into consideration the merits of the petitioner as specified under section 11(3) of the mmdr act and rule 35 of mineral concession rules and as per the terms and within the time prescribed by the court. order 13 rule 4(1)--prescribes that there shall be an endorsement on every document which has been admitted in evidence in the suit--can such endorsement be considered sufficient to hold that the document has been admitted. held--the endorsement shall be signed and initiated by the judge. the document lacking the last requirement cannot be said to be admitted in evidence. the mere fact that the endorsement on the document as required under order 13 rule 4 cpc has been made should not in every case be considered sufficient to hold that the document has been admitted.placing the judge's initials on a document by a third person by means of a rubber stamp cannot amount to initialing by the judge. (d) civil procedure code, 1908 (central act no. 5/1908) - meaning of production of document, admitting the said document in evidence, marking of the said document which is admitted in evidence and proof of such document. held--at the time of admitting the documentin evidence it is open to the opposite party to raise objection regarding the admissibility of the document and if objections are raised, the court is under an obligation to decide the said objection. it is after the said objection is decided by the court and if it decides to receive the document in evidence, the said document is marked for the purpose of identification. thereafter the proof of said document would arise. after the evidence is adduced or the final hearing, it is open to the parties to address arguments regarding the admissibility of the document, to the relevancy of the document and proof of said document and the court will decide all these questions in the course of its judgment. (para 13) (e) civil procedure code, 1908 (amendment act of 1999 and 2002) - proper procedure to be followed by courts in respect to examination-in-chief and production and marking of documents and in respect of affidavit evidence. held: a) when the case is posted for evidence, the examination-in-chief of a witness shall be on affidavit unless ordered otherwise. b) when the affidavit is sought to be filed on the date the case is posted for evidence, the court should insist that the witness whose affidavit is sought to be filed enters the witness box, takes oath and thereafter he/she shall handover the affidavit containing his/her examination-in-chief to the court. in other words, the court should not receive the affidavit containing the examination-in-chief of a witness by his/her counsel, thus preventing the possibility of the witness disowning such affidavit. c) after the affidavit is received through the witness, the court shall call upon the witness whether he/she has any documentary evidence to tender and if the witness tenders any documentary evidence, the same shall be received by the court subject to objection raised by the opposite party, d) if objections are raised, the court should judicially determine the question whether it can be admitted in evidence or not, then and thereof if the objection relates to insufficiency of stamp duty. if the objection is on any other ground, the court shall follow the procedure as laid down in the case of k. anjaneya setty v. k.h. ranganath setty reported in ilr 2002 karnataka 3613. e) if the court decides to admit the document, than it shallfollow the procedure prescribed under order 13 rule 4(1) cpc and mark the document. writ petition is rejected

Judgment:
ORDER

13 RULE 4(1)--Prescribes that there shall be an endorsement on every document which has been admitted in evidence in the suit--Can such endorsement be considered sufficient to hold that the document has been admitted. Held--The endorsement shall be signed and initiated by the Judge. The document lacking the last requirement cannot be said to be admitted in evidence. The mere fact that the endorsement on the document as required under Order 13 Rule 4 CPC has been made should not in every case be considered sufficient to hold that the document has been admitted.Placing the Judge's initials on a document by a third person by means of a rubber stamp cannot amount to initialing by the judge.

(D) CIVIL PROCEDURE CODE, 1908 (CENTRAL ACT NO. 5/1908) - Meaning of production of document, admitting the said document in evidence, marking of the said document which is admitted in evidence and proof of such document. Held--At the time of admitting the documentin evidence it is open to the opposite party to raise objection regarding the admissibility of the document and if objections are raised, the Court is under an obligation to decide the said objection. It is after the said objection is decided by the Court and if it decides to receive the document in evidence, the said document is marked for the purpose of identification. Thereafter the proof of said document would arise. After the evidence is adduced or the final hearing, it is open to the parties to address arguments regarding the admissibility of the document, to the relevancy of the document and proof of said document and the Court will decide all these questions in the course of its judgment. (Para 13)

(E) CIVIL PROCEDURE CODE, 1908 (AMENDMENT ACT OF 1999 AND 2002) - Proper procedure to be followed by Courts in respect to examination-in-chief and production and marking of documents and in respect of affidavit evidence. Held: a) When the case is posted for evidence, the examination-in-chief of a witness shall be on affidavit unless ordered otherwise.

b) When the affidavit is sought to be filed on the date the case is posted for evidence, the Court should insist that the witness whose affidavit is sought to be filed enters the witness box, takes oath and thereafter he/she shall handover the affidavit containing his/her examination-in-chief to the Court. In other words, the Court should not receive the affidavit containing the examination-in-chief of a witness by his/her Counsel, thus preventing the possibility of the witness disowning such affidavit.

c) After the affidavit is received through the witness, the Court shall call upon the witness whether he/she has any documentary evidence to tender and if the witness tenders any documentary evidence, the same shall be received by the Court subject to objection raised by the opposite party,

d) If objections are raised, the Court should judicially determine the question whether it can be admitted in evidence or not, then and thereof if the objection relates to insufficiency of stamp duty. If the objection is on any other ground, the Court shall follow the procedure as laid down in the case of K. Anjaneya Setty v. K.H. Ranganath Setty reported in ILR 2002 Karnataka 3613.

e) If the Court decides to admit the document, than it shallfollow the procedure prescribed under Order 13 Rule 4(1) CPC and mark the document.

Writ petition is rejected