- (1.) The present writ petition has been preferred under Article 227 of the Constitution of India against the order passed by Sub-Judge-II, Daltonganj dated 26th March, 2008 in Money Suit No. 12 of 1997, whereby, the objection raised by the present petitioner (original defendant No. 1) for not to give exhibit numbers to certain documents, has been dismissed. Against that order, the present petition has been preferred by original defendant No. 1 in a Money Suit No. 12 of 1997, instituted by respondent No. 1.
(2.) Having heard learned Counsel for both the sides and looking to the facts and circumstances of the case, it appears that: (i) the present respondent No. 1 is the original plaintiff, who has instituted Money Suit No. 12 of 1997. The present petitioner is original defendant No. 1. (ii) initially, the present petitioner (original defendant No. 1) could not present before the trial court and ultimately an ex-parte decree was passed in favour of the original plaintiff in the year, 2001. (iii) thereafter, Miscellaneous Case No. 22 of 2001 was instituted by the present petitioner (original defendant No. 1) which was allowed by the trial court vide order dated 21st July, 2004 and thus, ex-parte decree passed by the trial court was quashed and set aside. (iv) thereafter, petitioner (original defendant No. 1) filed a written statement in August, 2004. (v) thereafter, an objection was raised by original defendant No. 1 that the exhibit numbers, which were given prior to ex-parte decree, should be recalled by the trial court and these documents ought to be freshly appreciated in the light of an objection raised by defendant No. 1. This contention has not been accepted by the trial court, and I see no reason to upset the order passed by the trial court, mainly for the reason that certain documents' were referred by the plaintiff witnesses through their Examination-in-Chief and therefore, exhibits numbers have been given. Now, defendant No. 1 can ask for cross-examination of those plaintiff witnesses and an objection can be raised by the defendant No. 1 about giving exhibit numbers to those disputed documents and even if the objection is being raised by defendant No. 1 tentative exhibit numbers can be given, as has held by Hon'ble Supreme Court in the case of Bipin Shantilal Panchal v. State of Gujarat and Anr., 2001 3 SCC 1, especially in paragraph No. 13 and 14, which read as under: 13. It is an archaic practice that during the evidence-collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fallout of the above practice is that: Suppose the trial court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or the revisonal court, when the same question is re-canvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial court. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must bed recast or remoulded to give way for better substitutes which would help acceleration of trial proceedings. 14. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.) In view of the aforesaid decision, even if an objection is raised by any of the parties to the suit, the trial court must give tentative exhibit numbers by recording of the objection raised by any parties of the suit, which ought to be decided at the time of final hearing. (vi) in the facts of the present case also, no exhibit numbers should have also been given as per defendant. Only objection raised by defendant No. 1 that they were wrongly given exhibit numbers because they were not present at the time of drawing ex-parte decree and when exhibit numbers were given. The remedy available with original defendant No. 1 is to avail (i) the cross examination for those plaintiff witnesses, who were not cross examined and (ii) to raise an objection about exhibit numbers, which were given by the trial court about certain documents. A method has been given by aforesaid decision is to record objection and to give tentative exhibit numbers, in view of the aforesaid decision rendered by the Hon'ble Supreme Court, but, the fact remains that the documents must be given exhibit numbers. No document can be discarded that it will not be given exhibit numbers otherwise, during Appeal stage, if the appeal-forums are of the opinion that the documents ought to have been given exhibit numbers, then the matter will require a remand. To avoid such a situation, trial court must give exhibit numbers, which are narrated by the Hon'ble Supreme Court as tentative exhibit numbers and by recording objection filed by the original defendant No. 1. In the present case, the matter ought to proceed further for its final disposal.
(3.) As a cumulative effect of the aforesaid facts and reasons and judicial pronouncement, I see no reason to upset the decision delivered by the Sub Judge-II, Daltonganj dated 26th March, 2008 in Money Suit No. 12 of 1997, but, liberty is reserved with the petitioner to ask for the cross-examination of those plaintiff witnesses, who were examined prior to ex-parte decision. Secondly, liberty is also reserved with the petitioner (original defendant No. 1) to raise an objection either during their cross-examination or in writing, for the documents which, as per the opinion of the original defendant No. 1, should not given exhibit numbers so that trial court can given tentative exhibit numbers by recording objection to proceed ahead for the final disposal of the suit, in question.;