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Judgment
This writ petition is under Article 227 of the Constitution of India whereby and whereunder order dated 24.04.2018 passed in Money Suit No. 1 of 1997 has been assailed by which certain documents have been marked exhibits without providing an opportunity to the petitioner to get a chance of rebuttal.
Mr. Sandeep Verma, learned counsel appearing for the petitioner has submitted that the finding recorded in the impugned order to the effect that no objection to the petition dated 17.06.2014 has been made for marking the relevant documents is contrary to the objection filed with respect to the aforesaid petition, as would appear from Annexure-5, wherein at paragraph 3 it has specifically been stated that the document which is the subject matter of marking the exhibit will not be opposed subject to an opportunity of cross-examine the witness in the court on the documents and, therefore, the finding recorded while allowing the said petition by the trial court is contrary to the averment made in the rejoinder petition and as such, the said order is not sustainable in the eye of law.
It has further been submitted that since documents have been marked exhibits without providing an opportunity to cross-examine the witness on the documents, ultimately it will prejudice the case of the petitioner and it is violation of principle of natural justice.
Mr. Satish Bakshi, learned counsel appearing for the respondent Food Corporation of India has submitted that it is not the fact that the petitioner has made objection to the petition dated 17.06.2014, however, he fairly admits about the averment made at paragraph 3 to the rejoinder petition as has been annexed as Annexure-5 wherein the objection has not been made by the defendant (petitioner herein) subject to providing an opportunity to cross-examine the witness in the court on the documents which he wants to be exhibited in the court.
This Court, after having heard the learned counsel for the parties and going through the finding recorded in the impugned order wherefrom it is evident that the plaintiff has filed a petition on 17.06.2014 making prayer for allowing the plaintiff to mark certain documents as exhibits. The said petition has been responded by the defendant by filing a rejoinder petition on 28.07.2014 by serving a copy upon the plaintiff, as would appear from Annexure-5, wherein statements have been made which is referred herein for ready reference :-
"1. That the petition so filed by the plaintiff dated 17.06.2014 is itself contradictory and tented with malafide in the time since it speaks that all the documents are to be marked Exhibits which are all proved by the P.W.1 Sheo Kumar Ram Gupta.
That the plaintiff ought to have proved and marked exhibits of the documents so filed by the plaintiff initially in the court by producing witness before this learned court and enable the defendant to cross examine at length on each document but unfortunately, the documents all are either photo state copies or carbon copies of stated to be copy of original.
That the petition as filed by the plaintiff is to be consider in the light that the defendant too be allowed to cross examine the witness in the court on the documents which he wants to be exhibited in the court."
It is evident from the averment made in the rejoinder petition that the objection has not been made for marking the said documents as exhibits subject to the condition that the defendant would be allowed to cross-examine the witness in the court on the documents. It is evident from the impugned order that the trial court by recording no objection of the defendant has marked the said documents as exhibits.
As has been said hereinabove, by referring to the averment made in the rejoinder petition that no objection with the condition to provide an opportunity to cross-examine, cannot be construed to be no objection but that fact has not been taken into consideration by the trial court.
In view thereof, this Court is of the view that the finding recorded by the trial court while disposing of the petition dated 17.06.2014 suffers from infirmity being contrary to the statement made by the defendant in the rejoinder petition.
In view thereof, the order dated 24.04.2018 is held to be not sustainable, accordingly, set aside.
In the result, the matter is remitted before the trial court for passing a fresh order in accordance with law.
This writ petition is, accordingly, disposed of.
It has been submitted by learned counsel for the petitioner that the day to day hearing is going on and there is every likelihood that the argument would be concluded, therefore, prayer for communication of this order to the trial court through FAX at the cost of the petitioner has been made.
Taking into consideration the reason and the urgency, the office of this Court is directed to communicate this order to the trial court through FAX on the cost to be deposited by the petitioner.