Order 3

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IN THE COURT OF :COURT 31 ADDL SESSIONS JUDGE
Case No. :Commercial Suit/0100065/2019
Ratanbai Jethalal Savia Vs Sunshine Tracon Pvt Ltd
Date : 24-02-2023
Business : None present.
The court heard the argument of both sides on
the marking of documents.
The ld adv Priti Gada for plaintiff submitted
that defendant admitted the documents. She
also submitted that the documents were filed
by the plaintiff in support of claim. Defendant
has chance to cross-examine the witness. She
also submitted that the PW-2 knows the
transaction. She also submitted that the copy
of income tax return is filed on record. Hence,
she submitted that documents be marked as
exhibits.
The Ld Adv Tanna for defendant submitted
that the documents filed by the plaintiff which
was not relied in the plaint and hence,
defendant is not get opportunity to contest the
documents. It is argued by defendant that new
case has been made out by the plaintiff. The
plaintiff has to seek permission of the Court to
file the documents. He objected for marking of
documents. She submitted that documents
doesn’t come from proper custody. Hence,
defendant submitted that the documents can
not be marked as exhibits and production can
not be allowed.
After considering argument of both sides, it
is admitted fact that the plaintiff filed affidavit
of PW-02 namely Mahendra Savla at Exh.21. It
is seems from record that list of documents
filed by plaintiff at Exh.22 was taken on record.
It is also seen record that vide Exh.23 the
defendant has filed say to the documents filed
by the PW-02 at Exh.22. The defendant in his
say denied all the documents. In this case the
affidavit of examination in Chief of PW-02 is
filed on record. PW-02 in his affidavit of
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examination in chief has made reference of all
the document filed at Exh.22.
Ld adv for defendant objected for marking of
four demand promissory note produced by the
plaintiff witness in support of his claim. PW-02
in his affidavit has stated that said documents
were signed in his presence. There is sufficient
formal proof tendered and the document can
certainly be admitted on record and marked in
evidence. These documents contain statement
of facts and the truth of such facts is in issues
and will have to be established. PW-02
deposed about the documents. Now defendant
can cross-examine the plaintiff witness and the
Court will finally decide on the truth in the
course of trial.
The second set of documents objected by the
defendant are the income tax challan and
statement of computation. Income Tax Challan
are the original documents and it bears the seal
of income tax department. The PW-02 deposed
about contents of the documents in his
affidavit. The formal proof of the income tax
challan and statement of computation has been
tendered by PW-02. Therefore, the said
documents can be marked as exhibit.
The third set of documents is original notice
receipts from income tax department. The said
notice is original one and it is marked to be
exhibit.
The fourth and fifth set of documents are the
copy of letter dated 21-12-2018 and
acknowledgement receipts. The said letter is
the office copy. Acknowledgement receipts is
original one. The formal proof of the copy of
letter and acknowledgment receipt has been
tendered by PW-02. Hence, these can be taken
on record.
Ld adv for the defendant strongly objected
for exhibiting the documents. He also argued
that the documents were filed on record
beyond the pleading. Hence, they can not be
admitted. In present case the documents are
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already taken on record. The objections
regarding the admissibility can be taken on
record. Exhibition of documents is
administrative function. Mere exhibition of
document cannot dispense with the proof of
documents. Hence, there will be no prejudice to
the defendant. Exhibiting or marking of a
document after such formal proof is tendered
does not, however, mean that the question of
genuineness of the document is finally
concluded in the trial. There may be other
aspects reflecting on the genuineness of a
document. If these aspects are in issue or
relevant in a trial, they can be brought out by
the defendant in cross-examination or other
independent evidence. Only when all the
evidence is led that the court may take a final
call on the genuineness of a document in this
sense. So also, exhibiting or marking of a
document in evidence after its formal proof is
tendered does not mean that the truth of its
contents is proved, whenever of course the
truth is in issue, as explained above. The truth
is open to be questioned in the cross-
examination or by producing independent
evidence and has to be determined in the trial.
Ld adv for the defendant submitted that by
producing the document the plaintiff has made
out new case. In my view the defendant can get
opportunity to cross-examine the witness.
Whether the plaintiff has made out new case or
not that question can be decided at the time of
final hearing of the case. So also whether the
evidence adduced by PW-02 is admissible or
not that can be decided at the time of final
hearing of the case. Hence, at this stage it
would not be proper to make any observation
about the evidential value of document.
Considering the submission and affidavit of
examination chief tendered by PW-02. It is just
and proper to exhibit the document filed
alongwith list Exh.22. Mere exhibition of
documents doesn’t mean that document is
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proved. Hence, No prejudice will be caused to
the defendant. Hence, document filed by the
PW-02 are marked following exhibits.
Exh.24 to 28 – Four Original demand
promissory note by the defendant.
Exh.29 colly. - Ten original income tax challan
alongwith statement of computation for the
years 2008-2009 till 2017-2018.
Exh.30 - Original notice dated 15-12-2018
received from the income tax department by
the plaintiff.
Exh.31 - Original office copy of the letter dated
21-12-2018 by plaintiff to income tax
department.
Exh.32 - Original acknowledgment card.
Case is adjourned for cross of PW-02 to 14-03-
2023.
Next Purpose : RECORDING EVIDENCE
Next Hearing Date : 14-03-2023
COURT 31 ADDL SESSIONS JUDGE
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