P.Mukundan vs Radhika Vasudevan

Petitioner being the defendant No.3 in respondents civil suit in O.S.No.25874/2010 is invoking the writ jurisdiction of this Court seeking invalidation

of the order dated 20.11.2015, a copy whereof is at Annexure-A. Learned XV Additional City Civil and Sessions Judge, Bengaluru, has refused to

direct the respondents-plaintiffs to mark the subject documents put in their evidence since they were produced by the petitioner herein on the order of

the Court below made at the request of the plaintiff side. The respondents having entered appearance through their counsel oppose the writ petition.

Learned counsel for the petitioner argues that the subject documents having been produced by the petitioners on the direction of the trial Court

made at the instance of the respondent-plaintiffs who have pressed the same into evidence, Court is not justified in letting them go without marking the

same from their series of exhibits; the counsel submits, the text of Sec.163 of the Evidence Act, 1872 being mandatory, there is error apparent on the

face of the impugned order warranting indulgence of this Court. He banks upon the decisions of the Madras and Bombay High Courts in support of

his assertion. The learned counsel appearing for the respondents makes submission in justification of the impugned order.

I have heard the learned counsel for the petitioner and the learned counsel for the respondents. I have perused the petition papers. I have adverted

to at the decisions cited at the Bar.

It is not in dispute that the subject documents were produced before the Court pursuant to its direction obtained from the respondent-plaintiffs who

have admitted the documents in their evidence having inspected the same.

The Court below despite request from the petitioners to have the said documents marked by the plaintiffs from plaintiffs’ side, has let them go

unmarked on the ground that it is unfair on the part of the Court to compel the plaintiffs to mark the documents from their series when they are

unwilling.

Sec.163 of the Indian Evidence Act reads as under:

“163. Giving, as evidence, of document called for and produced on notice:- When a party calls for a document which he has given the other party

notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party

producing it requires him to do soâ€​.

The language of this Section is as plain as can be and therefore leaves no room for interpretation. It’s a strongest case of litera legis. In Law of

Evidence by Woodroffe & Amir Ali, 20th Edition at p.5528 & 5529, the underlying rationale of this Section is stated as under:

“The reason for the rule is that it would give an unconscionable advantage to a party to enable him to pry into the affairs of his adversary, without

at the same time subjecting him to the risk of making whatever he inspects evidence for both parties. Where a party to a case calls for a document

from the other party and inspect the same, he takes the risk making it evidence for both partiesâ€​.

The Madras High Court in the case of RAJAGOPALA AYYANGAR Vs. RAMANUJA AYYANGAR AND OTHERS in AIR 1923 Mad 607,

NAGPUR BENCH OF BOMBAY HIGH COURT in the case of LILADHAR RATANLAL VYAS vs. HOLKARMAL SOHAN LAL, AIR 1959

BOMBAY 528 and the Allahabad High Court in the case of UNION OF INDIA vs. FIRM VISHUDH GHEE VYOPAR MANDAL, AIR 1953

ALLAHABAD 689 having interpreted the above provision of law, have echoed what the learned authors of great repute have stated supra.

In the above circumstances, this writ petition succeeds; the Court below shall cause the marking of the subject documents from the side of the

plaintiffs and process the matter further.

No costs.