Case Note & Summary
The litigation arose from a rent control eviction suit (R.A.E. Suit No. 467/767 of 2005) filed by the landlord (M/s. J. M. Constructions, as lessor) against the lessees (M/s. Shamrock Impex Pvt. Ltd. & Ors.) on the ground of bona fide need. During the trial, the lessor filed a witness summons (Exhibit-A) to the Senior Police Inspector, L.T. Marg Police Station, Mumbai, seeking production of eight documents. The trial court allowed this application on 18.03.2016. Agitated by this order, the lessees filed two writ petitions (WP No. 4833 of 2016 and 4842 of 2016), but later withdrew them without prejudice to their right to challenge the relevance of the documents during trial. Subsequently, the police officer produced all documents except document no. 7—the Chief Police Prosecutor’s opinion dated 29.03.2005—as it lay with another police authority. The lessor then filed a second witness summons for that document, but the trial court, by order dated 16.01.2018, refused to summon it. This refusal gave rise to Writ Petition No. 5016 of 2018. Separately, when the lessor attempted to mark the already produced documents through the police officer who had brought them to court, the lessees objected. The trial court sustained the objection by order dated 18.10.2016. A subsequent praecipe by the lessor seeking reconsideration was also dismissed. The lessor challenged these orders via Writ Petition No. 5017 of 2018. In the High Court, the lessor argued that the trial court contradicted its own earlier order, that consistency is a judicial virtue, and that the value of a document cannot be prejudged at the summoning stage. On marking, the lessor relied on Bipin Shantilal Panchal v. State of Gujarat to contend that marking is a procedural step distinct from proof, and that documents must be placed on record to enable appellate scrutiny. The lessees countered that the trial court had ample power to determine relevance before summoning, that an opinion document has no evidentiary value, and that a private document cannot be marked through a mere custodian who is not its author; they relied on the Full Bench decision in Hemendra Rasiklal Ghia v. Subodh Mody. The High Court, dealing first with the summoning issue, held that consistency is a necessary judicial virtue, and the trial court could not refuse the second summons for no substantial reason. It observed that the value of a document cannot be prejudged; admissibility and probative force are distinct, and once produced, it is for the party to prove the document. The court thus answered the first question in the lessor’s favour. On the marking issue, the court began examining the interplay between Order 13 Rule 1 CPC and the procedure for marking when an objection is raised, noting that marking is an intermediary step that does not authenticate contents. The court’s final direction on this aspect is not fully recited in the available text. The court appears to have directed that the summons be issued and that documents be marked provisionally, preserving the lessees’ right to object to admissibility at a later stage.
Headnote
A) Civil Procedure - Summoning of Documents - Consistency in Judicial Orders - Code of Civil Procedure, 1908 - The lessor sought to summon a document that had earlier been allowed to be produced but was with another police authority. The trial court refused the second summons. Held that the trial court’s refusal was contradictory and unjustified; consistency is a judicial virtue; the value of the document cannot be prejudged at the summons stage. (Paras 18-23) B) Evidence - Marking of Documents - Objection and Provisional Marking - Order 13 Rule 1, Code of Civil Procedure, 1908 - The lessor wanted to mark documents through the police officer who produced them in response to summons; lessees objected on the ground that the officer was not the author. The High Court noted that marking is a distinct step from proof; documents may be marked provisionally subject to objection, to ensure that appellate scrutiny is not foreclosed. (Paras 24-25)
Issue of Consideration
(1) Can a document of opinion, if it were, be summoned by a third party to use that document in its support in a judicial proceeding? (2) Can a private document be marked through a witness who merely produced that document in answer to court’s summons? The second issue opens that seemingly intractable question: an objection taken, how should a document be marked? In other words, when is a document marked and when is it proved?
Final Decision
The High Court allowed Writ Petition No. 5016 of 2018, setting aside the trial court's order refusing to summon the document, and directed that the document be summoned from the proper custodian. The court's final ruling on Writ Petition No. 5017 of 2018 regarding marking of documents is not fully set out in the extracted text; the court began examining the issue and appeared inclined to allow provisional marking subject to objection.
Law Points
- admissibility and the probative force of a piece of evidence are quite different things
- consistency is a desirable
- nay necessary
- judicial virtue
- marking of documents is a distinct procedural step detached from proving that document
- mere marking of a document does not amount to its proof
- if a document is a private document it ought to be marked only through its author
- a document allowed to be kept on record without it being properly marked would also prejudice the other party
- the trial Court can receive the documents once an officer produces them answering the witness summons but he cannot be the person through whom those documents can be marked
- when a document is to be proved and relied upon in evidence there are three aspects: (i) proof of execution (ii) proof of contents (iii) evidentiary value
