Ballava Devi Alias Gajendra and ors. Vs. Babaji Charan Gajendra and anr.

Decided On : Oct-01-2007

Court : Orissa

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			'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  However, only in exceptional cases where Court feels that taking a decision will consume some time and the interruption may cause a dent in recording of evidence, it may postpone hearing/decision with regard to the objection raised to a later stage. 7. Needless to say, after hearing the parties if the Court is satisfied about admissibility of the documents in evidence, the words '(With Objection)' mentioned while marking the documents as Exhibits shall be deleted.',
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			'judgement' => '<p style="text-align: justify;">A.S. Naidu, J.</p><p style="text-align: justify;">1. A peculiar question is canvassed in this Writ Petition. According to the Petitioners, the Trial Court while marking some of their documents as 'Exhibits' in course of evidence, did so '(With Objection)'. A petition filed by the Petitioners to delete the words '(With Objection)' having been rejected by the Trial Court, the Petitioners filed an appeal before the appropriate Court and the Appellate Court dismissed the appeal.</p><p style="text-align: justify;">2. It is submitted by Learned Counsel for the Petitioners that documents in question which were exhibited being public documents, marking the same as Exhibits (With Objection) reveals complete non-application of mind of the Court below and therefore the words '(with objection)' may be directed to be deleted. This being the only question raised, this Court disposes of the Writ Petition at the admission stage itself.</p><p style="text-align: justify;">3. In course of evidence if a document is tendered by a witness and objection is raised to mark the same as an 'Exhibit' by the contesting party as to admissibility of the same in evidence for reasons good, bad or indifferent, it becomes obligatory on the part of the trial judge to apply his mind to the objection raised and decide the same in accordance with law. But then such an exercise while the witness is in the box may consume time and therefore the practice of the Trial Court sometimes is to postpone, the decision on that point so as to avoid interruption in the process of recording of evidence.</p><p style="text-align: justify;">4. However, to avoid prejudice to any party the document in question is accepted in evidence subject to objection. Such action, of course, may not mean that the objection as to admissibility or inadmissibility of the document/instrument in question is decision. In fact, decision on the said question is merely postponed leaving room for the parties to press the same at a later time when it can be decided by Court before final disposal of the suit. None-the-less, it is always obligatory on the part of a Court to decide such objection either at the stage it is raised or at a later stage, as the case may be after applying mind to the rival contentions. Not taking decision when a document is tendered with regard to admissibility in evidence may prejudice the parties, inasmuch as after closure of recording of evidence if the document marked as Exhibit (with objection) is not accepted, the concerned party may not have the, opportunity to substantiate its case by adducing further evidence. Thus this Court feels that endeavour should always be made by Court to decide objection with regard to admissibility of a document in evidence when the same is tendered in Court. However, only in exceptional cases where Court feels that taking a decision will consume some time and the interruption may cause a dent in recording of evidence, it may postpone hearing/decision with regard to the objection raised to a later stage.</p><p style="text-align: justify;">5. (Sic) In the case at hand, the documents tendered by the Petitioners' are said to be all public documents which have been marked 'Exhibits '(With Objection)'. Objection with regard to admissibility of, the said documents in evidence is required to be decided by Court at a later time, but then prior to final decision in the suit. Thus there was no justification for the Petitioners to file a petition with a prayer to delete the words '(With Objection)' recorded while marking the documents as Exhibits.</p><p style="text-align: justify;">6. After going, through the orders of the Courts below challenged in this Writ Petition, this Court finds no infirmity or illegality therein. This Court therefore while declining to interfere with the same directs that the Trial Court shall decide the question as to admissibility of the documents marked Exhibits (With Objection) before commencement of arguments, and thereafter proceed with the case in accordance with law.</p><p style="text-align: justify;">7. Needless to say, after hearing the parties if the Court is satisfied about admissibility of the documents in evidence, the words '(With Objection)' mentioned while marking the documents as Exhibits shall be deleted.</p><p style="text-align: justify;">The Writ Petition is thus disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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 -  However, only in exceptional cases where Court feels that taking a decision will consume some time and the interruption may cause a dent in recording of evidence, it may postpone hearing/decision with regard to the objection raised to a later stage. 7. Needless to say, after hearing the parties if the Court is satisfied about admissibility of the documents in evidence, the words '(With Objection)' mentioned while marking the documents as Exhibits shall be deleted.',
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 -  However, only in exceptional cases where Court feels that taking a decision will consume some time and the interruption may cause a dent in recording of evidence, it may postpone hearing/decision with regard to the objection raised to a later stage. 7. Needless to say, after hearing the parties if the Court is satisfied about admissibility of the documents in evidence, the words '(With Objection)' mentioned while marking the documents as Exhibits shall be deleted.',
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			'judgement' => '<p style="text-align: justify;">A.S. Naidu, J.</p><p style="text-align: justify;">1. A peculiar question is canvassed in this Writ Petition. According to the Petitioners, the Trial Court while marking some of their documents as 'Exhibits' in course of evidence, did so '(With Objection)'. A petition filed by the Petitioners to delete the words '(With Objection)' having been rejected by the Trial Court, the Petitioners filed an appeal before the appropriate Court and the Appellate Court dismissed the appeal.</p><p style="text-align: justify;">2. It is submitted by Learned Counsel for the Petitioners that documents in question which were exhibited being public documents, marking the same as Exhibits (With Objection) reveals complete non-application of mind of the Court below and therefore the words '(with objection)' may be directed to be deleted. This being the only question raised, this Court disposes of the Writ Petition at the admission stage itself.</p><p style="text-align: justify;">3. In course of evidence if a document is tendered by a witness and objection is raised to mark the same as an 'Exhibit' by the contesting party as to admissibility of the same in evidence for reasons good, bad or indifferent, it becomes obligatory on the part of the trial judge to apply his mind to the objection raised and decide the same in accordance with law. But then such an exercise while the witness is in the box may consume time and therefore the practice of the Trial Court sometimes is to postpone, the decision on that point so as to avoid interruption in the process of recording of evidence.</p><p style="text-align: justify;">4. However, to avoid prejudice to any party the document in question is accepted in evidence subject to objection. Such action, of course, may not mean that the objection as to admissibility or inadmissibility of the document/instrument in question is decision. In fact, decision on the said question is merely postponed leaving room for the parties to press the same at a later time when it can be decided by Court before final disposal of the suit. None-the-less, it is always obligatory on the part of a Court to decide such objection either at the stage it is raised or at a later stage, as the case may be after applying mind to the rival contentions. Not taking decision when a document is tendered with regard to admissibility in evidence may prejudice the parties, inasmuch as after closure of recording of evidence if the document marked as Exhibit (with objection) is not accepted, the concerned party may not have the, opportunity to substantiate its case by adducing further evidence. Thus this Court feels that endeavour should always be made by Court to decide objection with regard to admissibility of a document in evidence when the same is tendered in Court. However, only in exceptional cases where Court feels that taking a decision will consume some time and the interruption may cause a dent in recording of evidence, it may postpone hearing/decision with regard to the objection raised to a later stage.</p><p style="text-align: justify;">5. (Sic) In the case at hand, the documents tendered by the Petitioners' are said to be all public documents which have been marked 'Exhibits '(With Objection)'. Objection with regard to admissibility of, the said documents in evidence is required to be decided by Court at a later time, but then prior to final decision in the suit. Thus there was no justification for the Petitioners to file a petition with a prayer to delete the words '(With Objection)' recorded while marking the documents as Exhibits.</p><p style="text-align: justify;">6. After going, through the orders of the Courts below challenged in this Writ Petition, this Court finds no infirmity or illegality therein. This Court therefore while declining to interfere with the same directs that the Trial Court shall decide the question as to admissibility of the documents marked Exhibits (With Objection) before commencement of arguments, and thereafter proceed with the case in accordance with law.</p><p style="text-align: justify;">7. Needless to say, after hearing the parties if the Court is satisfied about admissibility of the documents in evidence, the words '(With Objection)' mentioned while marking the documents as Exhibits shall be deleted.</p><p style="text-align: justify;">The Writ Petition is thus disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent  Appeal  Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., -  Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act.

Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal  Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. 
 -  However, only in exceptional cases where Court feels that taking a decision will consume some time and the interruption may cause a dent in recording of evidence, it may postpone hearing/decision with regard to the objection raised to a later stage. 7. Needless to say, after hearing the parties if the Court is satisfied about admissibility of the documents in evidence, the words '(With Objection)' mentioned while marking the documents as Exhibits shall be deleted.',
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		'court' => 'Orissa',
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		'decidedon' => '2007-10-01',
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		'judge' => ' A.S. Naidu, J.',
		'judgement' => '<p style="text-align: justify;">A.S. Naidu, J.</p><p style="text-align: justify;">1. A peculiar question is canvassed in this Writ Petition. According to the Petitioners, the Trial Court while marking some of their documents as 'Exhibits' in course of evidence, did so '(With Objection)'. A petition filed by the Petitioners to delete the words '(With Objection)' having been rejected by the Trial Court, the Petitioners filed an appeal before the appropriate Court and the Appellate Court dismissed the appeal.</p><p style="text-align: justify;">2. It is submitted by Learned Counsel for the Petitioners that documents in question which were exhibited being public documents, marking the same as Exhibits (With Objection) reveals complete non-application of mind of the Court below and therefore the words '(with objection)' may be directed to be deleted. This being the only question raised, this Court disposes of the Writ Petition at the admission stage itself.</p><p style="text-align: justify;">3. In course of evidence if a document is tendered by a witness and objection is raised to mark the same as an 'Exhibit' by the contesting party as to admissibility of the same in evidence for reasons good, bad or indifferent, it becomes obligatory on the part of the trial judge to apply his mind to the objection raised and decide the same in accordance with law. But then such an exercise while the witness is in the box may consume time and therefore the practice of the Trial Court sometimes is to postpone, the decision on that point so as to avoid interruption in the process of recording of evidence.</p><p style="text-align: justify;">4. However, to avoid prejudice to any party the document in question is accepted in evidence subject to objection. Such action, of course, may not mean that the objection as to admissibility or inadmissibility of the document/instrument in question is decision. In fact, decision on the said question is merely postponed leaving room for the parties to press the same at a later time when it can be decided by Court before final disposal of the suit. None-the-less, it is always obligatory on the part of a Court to decide such objection either at the stage it is raised or at a later stage, as the case may be after applying mind to the rival contentions. Not taking decision when a document is tendered with regard to admissibility in evidence may prejudice the parties, inasmuch as after closure of recording of evidence if the document marked as Exhibit (with objection) is not accepted, the concerned party may not have the, opportunity to substantiate its case by adducing further evidence. Thus this Court feels that endeavour should always be made by Court to decide objection with regard to admissibility of a document in evidence when the same is tendered in Court. However, only in exceptional cases where Court feels that taking a decision will consume some time and the interruption may cause a dent in recording of evidence, it may postpone hearing/decision with regard to the objection raised to a later stage.</p><p style="text-align: justify;">5. (Sic) In the case at hand, the documents tendered by the Petitioners' are said to be all public documents which have been marked 'Exhibits '(With Objection)'. Objection with regard to admissibility of, the said documents in evidence is required to be decided by Court at a later time, but then prior to final decision in the suit. Thus there was no justification for the Petitioners to file a petition with a prayer to delete the words '(With Objection)' recorded while marking the documents as Exhibits.</p><p style="text-align: justify;">6. After going, through the orders of the Courts below challenged in this Writ Petition, this Court finds no infirmity or illegality therein. This Court therefore while declining to interfere with the same directs that the Trial Court shall decide the question as to admissibility of the documents marked Exhibits (With Objection) before commencement of arguments, and thereafter proceed with the case in accordance with law.</p><p style="text-align: justify;">7. Needless to say, after hearing the parties if the Court is satisfied about admissibility of the documents in evidence, the words '(With Objection)' mentioned while marking the documents as Exhibits shall be deleted.</p><p style="text-align: justify;">The Writ Petition is thus disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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PERSON: A.S. Naidu, Exhibits, Exhibit, Petitioners, Exhibits

NORP: J.1

ORG: Petitioners, the Trial Court, Petitioners, the Trial Court, Petitioners, Court, the Appellate Court, Learned Counsel, Petitioners, Court, Court, the Writ Petition, the Trial Court, Court, Court, Court, Court, Court, Court, Court, Petitioners, Court, Court, Trial Court, Court

LOC: this Writ Petition

WORK_OF_ART: The Writ Petition