Sukdev Malik vs Satinath Mondal And Another

Sabyasachi Bhattacharyya, J

At the outset, learned counsel for the opposite party nos.1 and 2 submits that the proforma defendant/opposite party no.3 has been added by mistake, since the name of the said opposite party no.3 has already been expunged from the suit.

Accordingly, the advocate-on-record for the petitioner is permitted to carry out the necessary corrections in the cause title by expunging the name of Balai Chandra Baidya.

On merits, it is submitted on behalf of the petitioner that the trial court erroneously marked two documents as exhibits. The first document was an alleged affidavit affirmed by the original opposite party no.3, who, before his expunction, was the proforma defendant no.2 in the suit, which was not proved by the said Balai Chandra Baidya, but by one of the plaintiffs themselves.

The second document regarding which the petitioner has objection is a certificate apparently given by the local panchayat pradhan as to heirship of the predecessor-in-interest of Balai Chandra Baidya and allegedly the plaintiffs/opposite parties. It is contended that even the said document was not proved by the panchayat pradhan himself, who is the alleged author thereof, but by the plaintiffs' witness.

Learned counsel for the opposite party nos.1 and 2 argues that such objections can be taken at a later stage of the suit as well. Moreover, it is submitted on behalf of the opposite party nos.1 and 2 that the concerned persons had authority to author the documents-in-questions and those were properly proved.

However, the contention of the petitioner is more acceptable among the two. In view of both the documents being private documents, for the purpose of exhibiting them, they had to be proved formally by their respective authors, which was not done in the present case.

The said objection pertained to the mode of proof of the documents and not to the admissibility or evidentiary value thereof, which the petitioner can in any event take at any further juncture.

However, it is well-settled that any objection as to the mode of proof has to be taken at the point of time when the document is marked as an exhibit, as in the present case. Since the petitioner is justified in arguing that both the documents were exhibited erroneously in the absence of their respective alleged authors to prove those, the impugned order cannot stand judicial scrutiny.

Accordingly, C.O. 3103 of 2019 is dismissed on contest, thereby setting aside the impugned order.

The documents, marked as exhibits 7 and 8 in the suit, are thus expunged as exhibits from the records of Title Suit No.614 of 2016 pending before the Civil Judge (Junior Division), First Court at Howrah.

However, this order will not preclude the opposite party nos.1 and 2 to pray before the trial court for proving the documents-in-question in accordance with law and following the due process of law, as contemplated in the Evidence Act and other allied Acts at a later stage of the suit, for marking those as exhibits, subject to objections being taken by the petitioner.

There will be no order as to costs.

Urgent certified website copies of this order, if applied for, be given to the parties upon compliance of all requisite formalities.