- (1.) THE petitioner questions propriety of order dated July 26, 2011 passed by the learned trial Judge rejecting her application dated July 2, 2011.
(2.) THE opposite party no. 1 (hereafter the plaintiff) instituted a suit for eviction and recovery of khas possession of the suit property (a flat), impleading the opposite parties 2 and 3 herein as the first two defendants and the petitioner as the third defendant. In course of recording of evidence of the plaintiff, two documents being letters dated April 17, 2008 and August 6, 2008 were tendered in evidence. THE petitioner objected to admissibility of the said documents on the ground that the objected documents, being photostat copies, are not admissible in evidence. THE same were marked exhibits 1 and 2 by the learned Judge noting the objection of the petitioner thereon. THE application, which has been rejected by the order under challenge, was thereafter filed by the petitioner praying for an order that the objected documents marked exhibits 1 and 2 ought to be expunged from the records since the plaintiff had not produced the originals thereof. Mr. Sen, learned advocate appearing for the petitioner contends that the learned Judge acted illegally in the exercise of his jurisdiction. According to him, gross injustice has been caused to the petitioner by receiving the objected documents in evidence and marking them as exhibits with objection despite the same being photostat copies, the originals whereof were not produced. It was contended by him, relying on the decisions of the Supreme Court reported in AIR 2003 SC 4548 (R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple & anr.) and (2010) 8 SCC 423 [Shalimar Chemical Works Ltd. v. Surendra Oil & Dalmeals (Refineries) and ors.], and the decisions of the Bombay High Court reported in AIR 2003 Bombay 36 (Saifuddin Saheblal Vazir v. Smt. Hafjabai Mishra Patel & anr.) and AIR 2003 Bombay 487 (Shri Durgashankar S. Trivedi and ors. v. Shri Babubhai Bhulabhai Parekh), that the objection regarding admissibility of the said documents ought to have been decided by the learned Judge before marking them as exhibits and decision on such objection could not have been deferred till final hearing of the suit by noting the objection of the petitioner thereon. It was further contended that law is well-settled to the effect that photostat copy of a document is not secondary evidence within the meaning of Section 63 of the Evidence Act and in the absence of the originals, the learned Judge was unjustified in his approach in receiving the objected documents in evidence.
(3.) HE, accordingly, prayed for orders to set aside the impugned order and to direct the objected documents to be expunged from the records of the suit. Per contra, Mr. Srivastava, learned advocate representing the plaintiff contended that the learned Judge was perfectly justified in making the order he did. He invited the attention of the Court to the decision of the Supreme Court reported in (2001) 3 SCC 1 (Bipin Shantilal Panchal v. State of Gujarat and anr.) to contend that the learned Judge had followed the law laid down therein while admitting the objected documents and marking the same as exhibits with a note that an objection to its admissibility has indeed been raised by the petitioner, and by keeping such objection open, to be decided at the time of final hearing, he did not commit any illegality in this behalf.;