Majitha Begum vs Vaheetha and Others

Honourable Mr. Justice G. Rajasuria

This Civil Revision Petition has been filed to get set aside the fair and decreetal order dated 16.04.2007 passed in I.A.No. 28 of 2012 in E.L.O.P. No. 2 of 2011 by the learned Principal District Judge, Madurai. Heard both sides.

The epitome and the long and short of the germane facts absolutely necessary for the disposal of this Civil Revision Petition would run thus:

(i) The learned Counsel for the revision petitioner would put forth and set forth his arguments which could tersely and briefly be set out thus:

Ex. P.4 is the Compact Disc which contains the alleged conversation of the first respondent herein with one Uma, a Teacher by profession who was officiating at the Counting Centre and Ex. P.5 is the alleged typed statement of the said conversation contained in the Compact Disc. Without proving the same or without establishing the genuineness of it, simply the said electronic record was marked, despite objection raised by the revision petitioner herein. Whereupon the revision petitioner filed I.A.No. 28 of 2012 for rejection of Exs.P.4 and P.5 from the evidence, for which counter affidavit was also filed by the other side. After hearing both sides, the lower Court passed the impugned order to the effect that such removal as prayed for in the application, cannot be ordered. As such, the order of the lower Court should be set aside.

(ii) Per contra, the learned Counsel for the first respondent would submit that marking is different from proving a document and after marking the document subject to objection, the objector cannot file an application to get rejected such evidence and only at the time of final disposal of the matter, the objector could put forth his arguments on that point and it is for the Court to decide along with the main matter.

The point for consideration is as to whether there is any perversity or illegality in the impugned order in refusing to remove Exs.P.4 and P.5 from the evidence on record?

The Point:

At the outset itself, I would like to fumigate my mind with the following decisions:

(i) K.K. Velusamy Vs. N. Palanisamy,

(ii) Shalimar Chemical Works Ltd. Vs. Surendra Oil and Dal Mills (Refineries) and Others,

A cumulative reading of the aforesaid precedents would unambiguously and unequivocally highlight and spotlight the fact that marking is different from proving. Here, no doubt, subject to objection, Exs.P.4 and P.5 were marked and that it does not mean that the revision petitioner had got any right to file a separate application to get erased Exs.P.4 and P.5 from the evidence. It is for the respondent herein who happened to be the petitioner therein to prove the genuineness of the contents of the said Ex. P.4 and so also Ex. P.5. The onus probandi is only on the respondent herein.

I recall and recollect the following legal maxims:

(i) "Affirmantis est probare." [The person who affirms must prove.]

(ii) "Affirmanti, non neganti, incumbit probatio." [The proof is incumbent upon the one who affirms, not on the one who denies.]

However, the learned Counsel for the revision petitioner, agreeing with the legal position as embedded in the aforesaid precedents of the Honourable Apex Court, would want clarification and expunging of the observation made by the lower Court in paragraph 8 of its order.

I would like to disambiguate the ambiguity if any in the order of the lower Court by pointing out that the lower Court is enjoined to decide as to the admissibility, relevancy and also the proof relating to Exs.P.4 and P.5.

Wherefore, the learned Counsel for the respondent herein would submit that he will take steps to prove the contents of those documents in the way known to law and the same is recorded. Accordingly, this Civil Revision Petition is disposed of. Consequently, the connected Miscellaneous Petition is closed. No costs.