Honorable Justice Sri P. Venkatarama Reddi had delivered this judgment wherein it was held that,

9. Before parting with the case, we have to record the difficulty which we experienced to find out the nature and details of 35 documents said to have been filed by the petitioners and 118 documents said to have been filed by the respondents.

10. The learned Subordinate Judge has merely stated that the petitioners have filed 35 documents while the respondents have filed 118 documents. Probably in view of the judgment of our learned brother Mr. Justice B.K. Somasekham in G. Sambrajyam v. P. Mahalakshamim and Ors., 1995 (1) ALD 358, that there is no provision in the Civil Rules of Practice for marking the documents as exhibits at the stage of interlocutory matters, the learned Subordinate Judge has not given any mark to these documents. This led to some inconvenience to us while disposing of this appeal. In our opinion, even though Rule 115 of the Civil Rules of Practice envisages marking of exhibits adduced in evidence as ‘A’, ‘B’, ‘C’ and ‘X’ series as the case may be during trial, the same cannot be construed so as to exclude the marking of any document in an interlocutory matter. It may be so that the Court while deciding the interlocutory application will look into the prima facie case of both sides. In that process, necessarily, each side will be depending upon certain documents which may ultimately be sought to be proved during the course of trial.

11. To visualise that the contesting parties in an interlocutory application will not be able to re!y on the documentary evidence upon which they ultimately rely in the trial would be placing the contesting party in an interlocutory application to rely only on the affidavits which the learned Judge thought would be the correct procedure, it may be so that the learned Judge was quite conscious that in spite of the fact that the affidavits cannot be the evidence as they are not included in the definition of evidence under Section 3 of the Evidence Act, the Court may permit any affidavits to be produced under Order 19 Rules 1 and 2 of the Civil Procedure Code. That being the premise on which the learned Judge proceeded to observe that the documents cannot be given a marking, the only alternative for any trial Court which hears interlocutory applications would be to decide the prima facie case only on the strength of affidavits. At the same time, we are unable to comprehend as to how a prima facie case is established by the successful party without referring to and marking the documents.

12. It may be pointed out that a deponent of an affidavit who can be called upon to appear for cross-examination cannot be confronted with any document on which the adversory places reliance. If the documents even at that stage are not permitted to be marked, the entire cross-examination of the deponent may be a mere denial of the suggestions made. If in a particular case the deponent himself was the author of any document or a party to it, there would not be any opportunity to the opposite parly or himself to explain the circumstances under which the document was executed or to admit or deny the genuineness or otherwise of the same. No doubt, we are conscious of the fact that a document on which a particular party relies to strengthen his own case can only be admitted in the evidence during the trial of the suit. However, as observed by us supra if the same are not given any marking, both sides would be at a disadvantage to support their respective contentions even in an interlocutory application. We think that the learned Judge has not envisaged that such of the documents on which the parties relied would have to be described in extenso in the order if they were not to be marked. Further, there would be any amount of inconvenience for any appellate Court to search for a document on which the parties have relied and go through its contents, more so, if there were a large number of documents filed by the contesting parties.

13. Thus, in order to come to a prima facie conclusion, both the trial Court and the appellate Court should necessarily be able to locate the documents and know its contents to agree with either of the contentions, we may also point out that it is nowhere envisaged that the case of the contesting parties can only be decided on the affidavits and not on any other material. Thus, in the absence of any specific rule so far as marking of documents in an interlocutory stage is concerned, the Courts would not be justified in not giving any marking at all to such of the documents on which both sides would rely.

14. It is another mailer that affidavits filed by both sides are not given marking for they after all form part of the record. But to say that the documentary evidence on which the parties would ultimately rely in the suit would not be of any relevance at the time of deciding the interlocutory matters would lead to any amount of inconvenience which was in fact felt by us in disposing of the above civil miscellaneous appeal.

15. As stated earlier, we are quite conscious of the fact that the documents marked for purpose of determination of any interlocutory application cannot be treated as evidence per se but would enable the Court to prima facie come to a conclusion about the merits or demerits of the contentions advanced. For the reasons aforesaid, we disapprove the view taken by Mr. Justice Somasekhara in the case referred to supra insofar as marking of the documents in the interlocutory applications.

16. Further, in order to avoid any future difficulties, it is desirable to incorporate a rule in Civil Rules of Practice for giving a separate marking to the documents relied upon by either party in interlocutory proceedings by directing the trial Courts to mark such of the documents relied upon by the petitioners in the interlocutory applications as ‘P’ series and the documents relied upon by the respondents as ‘R’ series to avoid any difficulty in identifying the documents at a later stage of the proceedings and also during trial.

Citations: [1998 (1) ALD 770], [1998 (1) ALT 292],

Indiankanoon.org link: https://indiankanoon.org/doc/330119/

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