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Judgment
A.S. Chandurkar, J.—This appeal filed under Section 96 of the Code of Civil Procedure takes exception to the judgment dated 02/03/2001 passed in Spl. C.S. No. 309 of 1998 to the extent it refused relief to the appellant.
It is the case of the appellant/plaintiff that in pursuance to an advertisement issued in March 1996 for construction of a commercial complex and community hall, the plaintiff had submitted his offer. On 10/04/1997 after accepting said offer, an agreement was entered into by the defendant No. 1 with the plaintiff. Thereafter the plaintiff commenced the work in terms of the agreement. There were certain difficulties faced by the plaintiff in the matter of construction. After some exchange of letters between the parties, the defendant No. 1 stopped the plaintiff from going ahead with the work. Hence the plaintiff filed suit for recovery of an amount of Rs. 33,43,000/- with interest. According to the plaintiff he had spent an amount of Rs. 7,00,000/- on the construction while amount of Rs. 3,70,000/- remained with the defendant No. 1. The plaintiff also claimed amounts for loss of profit, damages and for mental pain and agony. The defendant No. 1 filed its written statement vide Exhibit-12. The agreement in question was admitted. It was further admitted that the work came to be stopped in view of orders passed by the defendant No. 2 on 27/06/1997. The claim of the plaintiff towards cost of construction, damages and loss of profit was specifically denied. The suit proceeded ex-parte against the defendant No. 2.
Before the trial Court, the plaintiff examined himself and two other witnesses. The defendant No. 1 examined one witness. The plaintiff led voluminous evidence in the form of various vouchers/bills. Same were exhibited at Exhibits-52 to 101. The trial Court after considering the evidence on record held that as the contents of aforesaid documents were not proved, the plaintiff could not be permitted to rely on the same. It thereafter proceeded to award an amount of Rs. 1,00,000/- to the plaintiff towards cost of construction. By judgment dated 02/03/2001, the suit of the plaintiff was partly decreed to the extent of Rs. 5,40,067/-.
Shri M.G. Sarda, learned counsel appearing for the appellant submitted that the trial Court erred in not considering the evidentiary value of the documents at Exhbits-52 to 101. It was submitted that the plaintiff during his deposition had produced said documents and there was no objection raised to the mode of proof of said documents. Relying upon the decision of the Supreme Court in R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P. Temple and Another, as well as decision of the Full Bench in Hemendra Rasiklal Ghia Vs. Subodh Mody, , it was submitted that when the objection is to the mode of proof of a particular document, then objection in that regard is to be raised at that stage itself and such objection cannot be permitted to be raised subsequently. He submitted that infact the defendants did not raise any objection while exhibiting aforesaid documents during the course of the plaintiff''s evidence and hence the trial Court was not justified in refusing to consider evidentiary value of said documents on the ground that their contents were not proved. He further submitted that the trial Court also erred in refusing the claim towards loss of profits by failing to consider the evidence available on record. He therefore submitted that the suit deserved to be decreed in its entirety.
Shri K.S. Malokar, learned counsel for respondent No. 1 and Shri H.D. Dubey, learned AGP for respondent No. 2 supported the impugned judgment. They submitted that as the plaintiff had failed to prove the contents of the documents at Exhibits-52 to 101, the trial Court was justified in excluding said documents from its consideration. It was submitted that merely because the documents were marked as exhibits, the same could not be taken into consideration unless the contents were proved. It was also submitted that the trial Court rightly refused part of the relief to the plaintiff and hence there was no reason to interfere with the impugned judgment.
The points that arise for consideration are:
"(i) whether the trial Court was justified in refusing to consider the documents at Exhbits-52 to 101?
(ii) Whether the trial court was justified in refusing to grant any relief for loss of profit?"
I have considered aforesaid submissions and I have gone through the records of the case. To prove the claim as made in the suit, the plaintiff examined himself vide Exhibit-25. He referred to various documents and produced various vouchers at Exhibit-52 to 91. He stated that said vouchers showed making of payment by the plaintiff and they were also signed by the person to whom payment was made. He then referred to the documents at Exhbits-92 to 101 which were various bills for purchase of material. On that basis, he claimed that total amount of Rs. 7,00,000/- had been spent for carrying out the construction work. Said witness was duly cross-examined. It is however to be noted that when aforesaid documents came to be exhibited, no objection was raised as to the mode of proof of said documents on behalf of the defendants. The trial Court in paragraphs 31 and 32 of the judgment has held that as the contents of said documents were not proved and there was no evidence of the persons who had issued the documents, the same could not be considered for granting the relief sought by the plaintiff.
In R.V.E. Venkatachala Gounder (supra), the Supreme Court considered the nature of objections to the admissibility of documents and the stage at which objection could be raised. In paragraph 20 of said judgment it was held that where there is no objection regarding admissibility of the documents but such objection is with regard the mode of proof of said documents, then the objection has to be raised when the evidence is being tendered and not later on. It is held that raising such objection at that stage itself would enable the party leading such evidence to take further steps if found necessary. This view has been followed by the Full Bench in Hemendra Rasiklal Ghia (supra). The law therefore in that regard is well settled and unless an objection is raised when the evidence is tendered, such objection regarding mode of proof cannot be permitted to be raised at later stage.
As noted above, the only ground on which the trial Court excluded consideration of aforesaid documents was that contents of said documents were not proved. In terms of aforesaid decisions, objection in that regard was required to be raised during the course of evidence. The same not having been done, the evidentiary value of aforesaid documents would be required to be taken into consideration. Hence point No. (i) is answered by holding that the trial Court erred in refusing to consider the evidentiary value of the documents at Exhibits-52 to 101.
As regards the claim for loss of profit is concerned, the trial Court has proceeded to refuse said claim on the ground that no evidence in that regard had been led by the plaintiff. Perusal of the evidence available on record including the deposition of the plaintiff indicates that he had sought to rely upon certain circumstances on the basis of which he was entitled to seek said relief. This evidence was sought to be supported by the evidence of two other witnesses. The trial Court however has merely observed that there was no evidence on record to justify the loss of profit. It is to be noted that as held by the Supreme Court in A.T. Brij Paul Singh and Others Vs. State of Gujarat, , a broad evaluation of loss of profit can be considered while adjudicating such claim. Similarly, it is also held that there is a reasonable expectation of profit in such contracts. Hence said issue also needs to be reconsidered by the trial Court. Point No. (ii) is accordingly answered by holding that said issue also deserves to be reconsidered by the trial Court in the light of aforesaid decision which was also cited before the trial Court.
It is to be noted that the trial Court has partly decreed the suit and it is informed that the plaintiff has received the decreetal amount in terms of said decree. In view of aforesaid discussion, the following order is passed:
"i) The judgment dated 02/03/2001 passed in Spl. C.S. No. 309 of 1998 is set aside.
ii) The proceedings are remitted to the trial Court for fresh adjudication and after considering the observations made in this judgment.
iii) In case the parties seek to lead additional evidence, they may apply to the trial Court and the trial Court shall consider such application in accordance with law.
iv) It is clarified that the amounts received by the plaintiff would be subject to final adjudication of the suit.
v) As the suit pertains to year 1998 and the evidence has already been recorded, the trial Court is directed to decide the aforesaid suit by the end of October 2015.
vi) Parties undertake to appear before the trial Court on 28/04/2015.
vii) The record and proceedings be sent back forthwith.
Viii) The appeal is allowed in aforesaid terms but with no orders as to costs."