Debjit Hore vs Arpita Hore

Manojit Mandal, J

This application is directed against the Order No. 58 dated 24th June, 2019, passed by the learned Additional District Judge, 7th Court at Barasat, North-24 Parganas, in connection with Misc. Case No. 65 of 2016 (Act VIII).

The petitioner filed an application under Section 25 of the Guardians and Wards Act, 1890 (herein after referred to as the "said Act") for getting the custody of his minor child before the learned District Judge, Barasat, North 24-Parganas. The petitioner also filed another application under Section 12 of the said Act for availing interim relief pending of the case on 19th March, 2016. The opposite party appeared in the said case and filed written objection against the application under Section 25 of the Guardians and Wards Act, 1890, and the said case was subsequently transferred to the Court of the learned Additional District Judge, 7th Court at Barasat, for disposal. Subsequently, on 11th January, 2017, issues were framed and the case was posted on 10th April, 2017 for final hearing. On 13th April, 2017, the petitioner filed his examination-in-chief by affidavit and at that date the examination-in-chief was only tendered and the case was posted again on 5th July, 2017 for further evidence. On 5th July, 2017, the petitioner filed an application for fixing another date for hearing on the point of admissibility / exhibit of the documents being marked as Exhibit - "X" to "X-42". On 24th June, 2019, the learned Additional District Judge, 7th Court, Barasat, has been pleased to reject the application dated 5th July, 2017 by the order impugned.

Being aggrieved, the petitioner has preferred this application.

Now, the question is whether the impugned order should be sustained?

Having heard the learned advocate appearing for the parties and on going through the materials on record, I find that it is admitted position that the parties to the case are husband and wife. It is also an admitted position that in the wedlock, a child was born to them and the child is now six years old. It is also an admitted position that the child is now living under the custody of the opposite party. It is also an admitted position that the petitioner tendered medical prescriptions before the Court.

Mr. Ghosh, learned advocate for the petitioner contended that learned Court below committed wrong in passing the impugned order. He further contended that the learned Court below ought to have find out that whether such documents are relevant or not in regard to the pleadings of the petitioner herein. He further contended that learned Court below has committed wrong by observing that if admission of medical prescriptions take place and marked as exhibits, the scope of cross-examination stands completely negated and that would tantamount to taking away the valuable rights of the opposite party which has the prospect of causing prejudice to one of the parties to the lis. He further submitted that the learned Court below should have hold that marking of documents cannot be confused with probative value of the same and mere marking of any documents as exhibit does not ipso facto be considered as proof of the same. He further contended that learned Court below ought to have considered that the marking of any document is an administrative work and the marking of documents is different from probative value of the same which only can be considered subject to proof of the documents as= observed by the Hon'ble Apex Court in the case of Bipin Shantilal Panchal v. State of Gujarat reported in AIR 2001 SC 1158 and the same is squarely valuable in this case too.

Mr. Mondal, learned advocate for the wife/opposite party contended that learned Court below has rightly passed the order impugned and it does not call for any interference. In support of his argument he has relied upon the decision reported in (2008) 3 WBLR (Cal) 717.

Upon due consideration of the material on behalf of both the parties, the learned Additional District Judge observed that :-

"If admission of the medical prescriptions take place and marked as Exhibits, thence, the scope of cross-examination stands completely negated and that would tantamount to taking away valuable rights of the respondent, which has the prospect of causing prejudice to one of the parties to the lis. All such documents sought to be exhibited being medical documents, and the cross-examination of the author of such document being vital to the case, for either of the parties, the ratio as laid down in the case of Bipin Shantilal Panchal, this Court is constrained to observe, is not applicable. The scope of cross-examination of the authors of these medical prescriptions, notwithstanding the respondents not raising the bogey of the said documents, sought to be exhibited and marked in evidence, as fraudulent or concocted, is of vital importance, and, if the same are admitted in evidence, and the petitioner does not call for those doctors, who issued such prescriptions, the scope of reliance on such documents will automatically be negated, if the ratio as laid down in the case of Bipin Shantilal Panchal, is to be reckoned with. Hence, for preventing travesty of justice, the formal proof of such documents, all such documents not being public documents, cannot be dispensed with and the authors of such prescriptions are required to be called for to prove such documents, and the scope of cross-examination has to be afforded to the respondents".

The reason given by the learned Additional District Judge, 7th Court at Barasat, in rejecting the prayer made by the petitioner is fully right and legal and should be sustained. Our Hon'ble High Court has observed in a case reported in IV (2005) ACC 432 (National Insurance Co. Ltd. and Ors. vs. Sudhir Bhuiya) that:-

"admission of evidence- whether disablement certificate, discharge certificate and medical bill be public documents to be used as exhibits without proving them in accordance with Evidence Act - if Tribunal decides to rely upon opinion of any person for purpose of awarding compensation, person who will be forced to pay amount must get opportunity to cross examine author of such opinion - held, Tribunal rightly refused to admit disablement certificate unless same be proved in accordance with provisions of Evidence Act."

In another case reported in (2011) 1 Supreme Court Cases 343 (Raj Kumar vs. Ajay Kumar and another), Hon'ble Apex Court observed that :-

"The Tribunal may invariably make it a point to require the evidence of the doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or discharge certificate will not be proof of the extent of disability stated therein unless the doctor who treated the claimant or who medically examined and assessed the extent of disability of the claimant, is tendered for cross-examination with reference to the certificate."

In another case reported in (2004) 7 Supreme Court Cases 107 (Dayamathi Bai (Smt) v. K.M. Shaffi)) Hon'ble Apex Court observed that:-

".....the objections should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit."

In another case reported in (2008) 3 WBLR (Cal) 717 (Kuntal Kundu v. National Insurance Company Limited & Anr.), our Hon'ble High observed that:-

" ......even if we hold that the documents were marked as Exhibits not on consent but on the formal proof being dispensed with, the Insurance Company was free to cross-examine the appellant on the question of the veracity of the contents thereof or even could lead evidence of rebuttal. However, having failed to take any of those steps at the trial, the Insurance Company now cannot contend before the Appellate Court that the contents of those documents were not proved. If such objection was raised at the trial, the appellant could even examine the Doctor who issued the certificate so that he could face the cross-examination of the Insurance Company."

Under these facts and circumstances, I hold that by merely producing the medical prescriptions of the persons, the veracity of the contents of the said medical opinions made in the said prescriptions cannot be proved. The author of the said medical prescriptions must depose before the Court in support of the contents and should face cross-examination of the opponent; otherwise such medical prescriptions can be taken into consideration merely for the purpose of showing that such a certificate was issued, once its genuineness is proved. But whether the contents of the medical prescriptions are correct or not, such facts cannot go into evidence unless the author of the medical prescriptions deposes before the Court and faces for cross-examination. The contents of the medical prescriptions without examining the author are worst pieces of hearsay evidence.

Under these facts and circumstances, and on consideration of the entire material on record, I am of the opinion that order of the learned Court below does not call for any interference of this Court.

The revisional application, thus, fails and the same is dismissed.

There will be no order as to costs.

Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.