Calcutta High Court
Harsh Vardhan Lodha & Ors vs Arvind Kumar Newar & Ors on 6 March, 2026
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
IN THE HIGH COURT AT CALCUTTA
TEsTAmENTARy ANd INTEsTATE JURIsdICTION
ORIGINAL sIdE
Present :
THE HON'BLE JUSTICE ARINDAM MUKHERJEE
IA GA NO. 85 of 2026
In
TS 6 of 2004
IN THE GOODS OF :
PRIYAMVADA DEVI BIRLA, DECEASED
AND
HARSH VARDHAN LODHA & ORS.
Vs.
ARVIND KUMAR NEWAR & ORS.
For Plaintiffs : Mr. Anindya Kumar Mitra, Sr. Adv.
Mr. Abharjit Mitra, Sr. Adv.
Mr. Dhruba Ghosh, Sr. Adv.
Mr. Jishnu Chowdhury, Sr. Adv.
Mr. Debanjan Mandal, Adv.
Mr. Sanjiv Kr. Trivedi, Adv.
Mr. Sarvapriya Mukherjee, Adv.
Mr. Soumya Ray Chowdhury, Adv.
Mr. Satadeep Bhattacharyya, Adv.
Mr. Shaunak Mitra, Adv.
Mr. Aritra Basu, Adv.
Mr. Sanket Sarawgi, Adv.
Mr. Deepan Sarkar, Adv.
Mr. Aman Agarwal, Adv.
Mr. Altamash Alim, Adv.
Mr. Samriddha Sen, Adv.
Ms. Mahima Cholera, Adv.
Mr. Rachit Lakhmani, Adv.
.........Advocates
For the Defendant Nos. 1(b) & 1(c) : Mr. S. N. Mookherjee, Sr. Adv.
Mr. Sabyasachi Choudhury, Sr.Adv.
Mr. Naman Choudhury, Adv.
Mr. Subhrojyoti Mookherjee, Adv.
Mr. Shounak Mitra, Adv.
Ms. Vaibhavi Pandey, Adv.
Mr. Saptarshi Mandal, Adv.
......... Advocates
For the Defendant No. 1(d) : Mr. Surojit Nath Mitra, Sr. Adv.
Ms. Suchismita Ghosh, Adv.
Mr. Anuj Singh, Adv.
Mr. Malay Seal
............Advocates
For the Defendant No. 3(a) : Mr. Ratnanko Banerjee, Sr. Adv.
Ms. Vineeta Meharia, Sr. Adv.
Mr. Soumabho Ghosh, Adv
Heard On : Mr. Saptarshi Mandal, Adv.
...............Advocates
19th February, 2026.
Judgment on : 6th March, 2026.
Arindam Mukherjee, J:
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Re: TS 6 of 2004
Facts of the Case:
In a steeply contested testamentary suit which was initially for grant of
probate and presently one for grant of Letters of Administration after the death
of the original plaintiff during the pendency of the suit, the present plaintiff No.
1 (PW-1) is being cross-examined. In course of cross-examination the plaintiff
No. 1 (witness) was shown a certified copy of a joint affidavit affirmed by
Madhav Prasad Birla and Priyamvada Devi Birla on 18 th November, 1987 and
filed in Originating Summons Suit No. 355 of 1987 (hereinafter referred to as
‘said affidavit’) to the witness for being tendered and marked as an exhibit
upon some questions being asked in connection thereof by the Senior Advocate
for the defendants. At this stage the learned Senior Advocate representing the
plaintiffs objected to the said affidavit being shown to the witness, questions
being asked in respect thereof and the same being tendered and marked as an
exhibit.
Submission of the Plaintiffs:
The grounds of objection can be summarised as follows:-
1. a. The said affidavit in the form of a certified copy as shown to PW 1 was not
disclosed in the proceedings prior to settlement of issue or even thereafter.
No inspection of the said affidavit was also offered or given by the
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defendants. A copy of the said affidavit was only disclosed at page 854 of the
Judge’s brief of documents. The said affidavit, therefore, was not a
disclosed document and as such cannot have been shown to PW-1.
b. The said document is not a public document which could be exhibited
through the PW-1 in course of cross-examination.
c. The said affidavit cannot also be used to confront the witness under
Section 145 of the Evidence Act, 1872 as the same is not a document
executed by the witness and is referred to in his previous statement.
d. The witness himself not being a party to the Originating Summon Suit
wherein the said affidavit was filed could not have been confronted by the
same.
e. The said witness is not the appropriate witness to prove the said
document which is an affidavit by two dead persons and that too filed in a
suit where PW-1 is not a party.
f. The said affidavit is not a relevant document for the purpose of the
Testamentary Suit. Moreover, discussion on any issue in this suit is not
disputed on the said document and as such the defendants are not entitled
to ask questions to the witness regarding the same.
g. Any question asked in connection with the said affidavit is also not a
relevant question as envisaged under Sections 145 to 148 of the Evidence
Act, 1872 and all such questions should be expunged.
2. In course of argument the learned Senior Advocate on the behalf of the
plaintiffs, however, did not seriously press the point of non-disclosure of the
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document as a copy of the said affidavit was supplied to the plaintiffs and
inspection of the original was also offered. It is needless to mention that a copy
of the affidavit was, however, already on record as a disclosed document.
The pivotal argument on behalf of the plaintiffs is the relevancy of the
document for the purpose of adjudicating the issues involved in the suit and as
to whether the questions already asked and those may be asked for tendering
the said affidavit as an exhibit or in connection therewith are relevant
questions as envisaged under Sections 145 to 148 of the Evidence Act. The
plaintiffs also harped on the point that the said affidavit is by two persons who
have died subsequent to affirming the said affidavit and as such cannot be
proved through the witness in course of cross-examination particularly when
the witness is not a party to the Originating Summons Suit wherein the said
affidavit has been filed. The defendants, if intends to prove the said affidavit,
the same should be in accordance with the provisions of Section 32 of the
Evidence Act. No foundation under Section 32 of the Evidence Act has been
laid by the defendants before attempting to tender the said affidavit and in any
event provisions of Section 32 of Evidence Act is not attracted in the facts of
the case as it presently stands.
3. In elucidating the objections it is further argued by the plaintiffs that there
are restrictions in case of production of a document to be shown to a witness in
cross-examination which is not previously disclosed as required under Order
XIII Rule 1 of the Code of Civil Procedure, 1908 (in short ‘CPC‘) though
provisions of Order XIII Rule 1(3) of CPC permits production of an undisclosed
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document at the cross-examination of the witness of the other party to confront
the witness or being handed over to a witness merely to refresh his memory.
The provisions of Order XIII Rule 1(3) of CPC according to the plaintiffs are
procedural in nature while the substantive provisions are contained in Sections
145 to 148 of the Evidence Act. It was never the legislative intent to allow any
undisclosed document to be shown in cross-examination of a witness of the
other side in view of the provisions of Order XIII Rule 1(3) of the CPC for the
restrictions contained in the substantive law provided under the Evidence Act.
In the instant case, the said affidavit cannot be shown to the witness in cross-
examination in view of the embargo contained under the provisions of Sections
145 to 148 of the Evidence Act.
4. In support of the contention that the said affidavit is not a public document
as per Sections 74 to 77 of the Evidence Act and that for such reason the same
cannot be tendered in evidence through PW-1 without proving the contents
thereof in accordance with law, the plaintiffs have cited the following
judgments:-
i) AIR 1959 Bom 414 – Paragraph 13 East India Trading Co., New
York Vs. Badat and Company, Bombay.
ii) AIR 2008 Bom 155 – paragraph 5 Shamlata & Ors. Vs.
Vishweshwara Tukaram Giripunje & Anr.
iii) AIR 1951 Cal 320 – Paragraphs 9 and 10 Akshoy Kumar Bose &
Ors. Vs. Sukumar Dutta & Ors.
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iv) AIR 2014 Ori 128 – Paragraphs 1, 8, 10, 11 and 21 Baijayanti
Nanda Vs. Jagannath Mahaprabhu Marfat Adhikari Mahanta
Bansidhar Das Goswami & Ors.
v) AIR 1942 Mad 558 – page 572 Umade Rajaha Raje Damara
Kumara Venkatalingama Nayanim Bahadur Varu Vs. Panaganti
Parthasarathy Rayanimgar & Ors.
vi) AIR 1964 Pat 45 – Paragraphs 13 and 14 Gulab Chand & Ors. Vs.
Sheo Karan Lall Seth & Ors.
It is submitted by the plaintiffs that in view of the ratio laid down in the
judgments cited by the plaintiffs it should be held that the said affidavit is not
a public document and cannot be exhibited through PW-1.
5. The plaintiffs further say that confrontation of a witness showing him the
document in cross-examination under Section 145 of the Evidence Act can
only be made with respect of previous statements in writing of the witness
who is being cross-examined. In the instant case, since the witness was
neither a party to the suit wherein the said affidavit was filed nor was he
associated with the preparation of the said affidavit, the witness could not
have been confronted with the said affidavit. In support of this contention
the plaintiffs have relied upon the following judgments:
1. Unreported judgment of Allahabad High Court dated 8 th April, 2023
passed in Civil Misc. Application No. 91816 of 2012, Para-11. M.L.
Dar & Ors. Vs. Vikram Singh & Ors.
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2. 1986 SCC Online Kar 383 – para-7. Arpee Electrical Pvt. Ltd. Vs.
Finance Secretary.
6. By relying upon these judgments it is submitted by the plaintiffs that on
reading the provisions of Order XIII Rule 1(3) of the CPC in consonance with
the provisions of Section 145 of the Evidence Act the said affidavit being
executed by a third party cannot be shown to the witness to either confront
him or to refresh his memory. It is also the case of the plaintiffs that the
contents of the said affidavit affirmed by third parties who are also dead
cannot be proved through the said witness as there is a specific method of
proving the statements of dead persons as provided under Section 32 of the
Evidence Act. None of the examples given in the Section 32 of the Evidence
Act are applicable or attracted in the instant case.
7. It is also the case of the plaintiffs that mere mentioning of the name of “Seva
Nidhi Trust” in some of the answers given by the witness does not make Seva
Nidhi Trust in connection with which the said affidavit has been affirmed and
filed relevant to the instant suit or relevant for the purpose of adjudicating the
issues involved in this suit. The said trust is also not included in the affidavit
of assets filed in this proceeding after inventory by Special Officers appointed
by this Court.
8. The plaintiffs have also referred to the contents of the affidavit to contend
that strained relationship alleged by the defendants between the testatrix and
Mr. and Mrs. B. K. Birla is also not borne out from the said affidavit. The said
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affidavit, therefore, should not be permitted to be tendered and exhibited
through the witness and the question already asked with regard to the said
affidavit to the witness should be expunged.
Submission of the Defendant no. 1(b) and 1 (c ):
A. The defendants no. 1 (b) and 1 (c) (hereinafter for the sake of convenience
referred to as answering defendants) have countered the objection as to the
relevancy of the said affidavit raised by the plaintiffs by relying upon the
contents of paragraphs 15(l), (p) and 16 of the written statement filed in the
suit by Laxmi Devi Newar. By relying upon the statements made in those
paragraphs, the answering defendants submitted that issue no. 7, issue no. 9
(a), (b) and issue no. 10 have been framed on the basis of such statements.
The issues no. 7 and 9(a) relates to documents dated 18 th April, 1999 and 15th
April, 2003 which according to the said answering defendants are unnatural.
Issue no. 10 relates to the relationship of Priyamvada Devi Birla with the
members of the Birla Family including the original defendant no. 1 and the
defendant no. 2.
B. The answering defendants also say that in the answers of question nos. 224,
1000, 1088, 1837, 2372 to 2377, 2199, 2200, 2201, 2202, 2203, 2309, 2314
to 2322, 2338 to 2340, 2342, 2349 to 2351 and 2511. The P.W. 1 has
answered regarding the Seva Nidhi Trust, the relationship between M.P. Birla
and Priyamvada Devi Birla with members of the Birla family and the rights of
the members of the Birla family with regard to Seva Nidhi Trust. These
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questions and answers not only make the document (being the said affidavit) a
relevant document relating to facts but also satisfies the condition of a
document that can be shown to PW 1 in cross-examination to controvert the
said witness with his previous statements in writing. The answering
defendants have also relied upon the provisions of Sections 3, 5, 7, 9 and 14 of
the Evidence Act in support of the relevancy of the said affidavit to the facts of
the instant case. It is also the case of the answering defendants that even if
the said affidavit does not qualify to be relevant under the provisions of Section
3, 5, 7, 9 and 14 of the Evidence Act, it will qualify under Section 11 of the
Evidence Act particularly in connection with issue no. 10 framed in this suit.
The answering defendants have also relied upon a judgment reported in 2013
(12) SCC 17 (State of Maharashtra v. Kamal Ahmed Mohammed Vakil
Ansari & Ors.). By referring to paragraphs 11 and 12 of the said judgment,
the answering defendants say that the relevancy of the said affidavit has to be
judged in the light of the ratio laid down in the said judgment read with the
provisions of the Evidence Act referred to hereinabove.
C. The answering defendants, on the point of admissibility of the documents
has relied upon the following judgments.
(a) 1975 (4) SCC 428 (paragraph 24) (State of U.P. v. Raj Narain & Ors.)
(b) 2003 (8) SCC 752 (paragraph 20) (R.V.E. Venkatachala Gounder v.
Arulmigu Viswesaraswami & V.P. Temple & Anr.)
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(c ) 1982 (1) SCC 700 (paragraph 13) (Mohanlal Gangaram Gehani v.
State of Maharashtra)
(d) 2009 SCC Online Del 3855 (paragraph 6) (Surinder Kumar Bajaj v.
Sheela Rani Pasricha and Vijay Kumar Bajaj vs. Sheela Rani Pasricha)
D. By relying upon the above judgements, the answering defendants say that
unless there is a legal reason for rejecting a document, evidence is admissible
and should be received by the Court to which it is tendered. The legal reasons
for rejection can be on the ground that the evidence sought to be tendered
could be against which policy for a particular rule of law. It can be also
rejected if the relevant facts are subject to recognised exceptions admissible
unless they are proved by best or prescribed evidence.
E. None of the grounds for rejecting the said affidavit tendered in evidence is
attracted in the facts of the instant case. The answering defendants, therefore,
say that the said affidavit is relevant and as such is admissible unless a legal
bar to the same exist. No legal bar has been shown by the plaintiffs to
persuade the Court o reject the said affidavit for being tendering the evidence.
The answering defendants also say that the admissibility of the documents has
to be filed on the basis of the provisions contained in Sections 5 to 16 of the
Evidence Act alone and not under the provisions of Section 145 of the Evidence
Act. The answering defendants also say that provisions of Section 145 is not
attracted in a case where a witness is contradictory not by his own statement
but by the statements of another witness.
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F. The answering defendants have also contended that the certified copy can be
given as secondary evidence when the original is a public document under
Section 74 of the Evidence Act and being read with the provisions contained in
Section 65 (e) of the said Act, the said affidavit according to the answering
defendants can be relied upon as a public document as the same forms part of
the “records of the Act” of a judicial officer. The answering defendants have
also relied upon the provisions of Section 77 and 79 to demonstrate that the
certified copy may be produced in the proof of the contents of a public
documents and there is a presumption of genuineness of the certified copies of
a public documents. The answering defendants have also referred to Rule 3, 6,
9 to 11 and 12 of Chapter IV of the Original Side Rules of this Court to contend
that the said affidavit on being received by officers of this Court in view of the
provisions of Rule 3 of Chapter IV of the Original Side Rules of this Court read
with Rules 3, 6, 9 to 11 will demonstrate that records which are kept open for
inspection of the parties as well as a non-party to the proceedings will qualify
as a public document particularly in view of the provisions of Rule 12 of
Chapter IV of the Original Side Rules of this Court. The answering defendants
in this context has relied upon 1986 SCC Online AP 285 (Mattam
Parvathaiah (Died) & Ors. v. B. Naga Reddy & Ors.) (Division Bench),
Manu/AP/0525/1995 [B. Naga Reddy & Ors.vs. Mattam Parvataiah &
Ors.), AIR 1940 Madras 768 (Katikineni Venkata Gopala Narasimha vs
Chitluri Venkataramayya) and 1873 Vol.10 Bengal L.R. 31. The answering
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defendants, therefore, say that the said affidavit should be permitted to be
tendered in evidence and marked as an exhibit.
Discussion and Analysis :
Before adverting to the rival contentions the relevant provisions of law in the
context of the issue involved can be summarised as follows :
1. Order VII Rule 14 of CPC, Order VIII Rule 1(A) and order XIII Rule 1 of CPC
provides for production of document by a party to a civil suit with specific
stipulation as to when the same is to be done. On a conjoint reading of these
three provisions it will be apparent that the whole legislative intent is to
standardize the procedure for production of documents that a party to the suit
do not resort to hiding of documents in its possession or relied upon to put the
other side in an off-guarded position and surprise the witness at the time of
cross-examination. The whole object of a trial wherein documents relied upon
are produced to unearth the truth. This is the reason as to why the original of
the documents which the plaintiff(s) or the defendant(s) are to rely upon to
prove their respective case has to be made in ordinary course prior to framing
of the issues. Documents can be relied upon even at a subsequent stage with
the leave of Court. The general provision as to plaintiff(s) and the defendant(s)
in producing the document prior to settlement of value is contained in Order
XIII Rule 1 while specific provision for the plaintiff(s) and defendant(s) are
respectively contained on Order VII Rule 14(1), (2) and (3) and Order VIII Rule
1(A). An exception, however, is curved out under Sub-rule 4 of Order VII Rule
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14, in case of documents produced in cross-examination of plaintiffs’ witnessor handed over to a witness merely to refresh his/her memory. Similar
exceptions are provided respectively under Order VIII, Rule 1A (4) and order
XIII Rule 1(3) of CPC with regard to the documents that can be produced at the
time of cross-examination even without production of the original documents in
terms of the aforesaid provisions or for refreshing the memory of a witness. The
language used in the aforesaid provisions is production of the document relied
upon by the parties which includes both original or a copy document. In case
of a copy document where the original is likely to be in possession of the other
side, the party relying upon the same shall indicate in a list as per the relevant
provisions of CPC as to which are not in the possession of the party producing
the same. The copy documents may include the original to be in the possession
of a third party in respect of which subpoena may be issued in terms of the
provisions of Order XVI of CPC. In respect of documents to be in the
possession of the adversary, notice to produce is to be issued as contained in
Order XI Rule 16 of CPC. This procedure is provided because Evidence Act in
Section 62 thereof speaks of primary evidence which means the document itself
to be produced for inspection of the Court to be proved in terms of Section 64
of the Evidence Act. The “document itself” indicates “the original document” as
Section 63 of the Evidence Act on the other hand specifies the documents apart
from the originals which can be produced as secondary evidence to lead
secondary evidence under Section 65 of the said Act.
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2. The discovery and inspection of document pursuant to filing of a suit is
provided under Order XI of CPC and in case of this Court also under Chapter
XI of the Original Side Rules of the Court for production of document under
orders of the Court while Order XI Rule 15 refers to inspection of documents
referred to in pleadings or affidavits. This take place prior to settlement of
issues. Rule 16 of Order XI relates to notice to produce as described above.
This notice is also issued to any party to produce any document referred in his
pleading or affidavit.
3. We are, however, in the instant case, concerned with an affidavit shown by the
defendants while cross-examining the plaintiffs witness (PW-1).
4. The objections as to the admissibility of documents relied upon in evidence as
classified by the Hon’ble Supreme Court in R.V.E. Venkatachala (supra) falls
two classes
a) An objection that the document which is sought to be proved is itself in
admissible in evidence.
b) Where the objector does not dispute the admissibility of the document in
evidence but the objection is directed towards the mode of proof alleging
such mode to be irregular or insufficient.
5. In the first case, merely because a document has been marked as “an
Exhibit”, on an objection as to its admissibility is raised but overrated the right
to question the said document is available to be raised even at a later stage or
even in appeal or revision. The issue as to admissibility of the document,
therefore, remains excluded even if the document is marked as Exhibit. In the
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later case, the objection should be taken when the evidence is tendered and
once the document has been admitted in evidence and marked as an exhibit,
the objection that it should not have been admitted in evidence or that the
mode adopted for proving the document is irregular cannot be allowed to be
raised at any stage subsequent to the marking of the document as an exhibit.
6. The later proposition according to the Supreme Court is a rule of fair
play. The Hon’ble Supreme Court in the said judgment has also held that the
crucial test is whether an objection if taken at the appropriate point of time
would have enabled the party tendering the evidence in the later case to cure
the defect and resort to such mode of proof as would be regular. The omission
to object becomes fatal because by his failure the party entitle to object, allows
the party tendering the evidence to act on an assumption that the opposite
party is not serious about the mode of proof. A prompt objection on the other
hand, does not prejudice the party tendering the evidence, for two reasons,
firstly, it enables the Court to apply its mind and pronounce its decision on the
question of admissibility then and there and secondly, in the event of finding of
the Court on the mode of proof sought to be adopted going against the party
tendering the evidence, the said party gets opportunity of seeking an
indulgence of the Court in adhering to a regular mode or method of proof and
thereby removing the objection raised by the opposite party.
7. In the instant case, the plaintiffs have raised objection relating to both
the classes as aforesaid. The objection that the document which is sought to
be proved is itself inadmissible in evidence is the objection raised by the
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plaintiffs while contending that the said affidavit is not a relevant document for
the purpose of the suit or for adjudication of the issues involved. The relevancy
of the said affidavit (document) has to be judged in the context of Sections 145
to 149 of the Evidence Act. The plaintiffs have also raised the second class of
objection as in R.V.E. Venkatachala (supra) while the plaintiff urges that the
said document cannot be proved through PW-1 for the reasons elucidated in
course of their argument. Furthermore, the said affidavit has been affirmed by
third parties who are also dead at the present and, as such, the said affidavit
cannot be tendered in evidence through PW 1.
8. The plaintiffs have also raised a further class of objection by contending
that the said affidavit does not belong to the class of document which can be
shown to the witness in cross-examination for confronting him which takes it
out from the exclusion contained in Order VII Rule 14(4), Order VIII Rule 1A (4)
and Order XIII Rule 1(3) of CPC. So far as the documents that can be shown in
cross-examination.
9. Before we proceed further it should be kept in mind that the said
affidavit is part of the pleadings in another suit filed in this Court and was
affirmed in the year 1987 which is admittedly 30 years old when the same was
sought to be tendered in evidence. The said affidavit is that of M.P. Birla and
Priyamvada Devi Birla whose estates are the subject matter of the suit.
10. The first category of objection raised by the plaintiffs as aforesaid is
covered by the answer given by the Hon’ble Supreme Court in Paragraph 20 of
R.V.E. Venkatachala (supra) regarding the first class of cases considered
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therein. If the document is inadmissible in evidence, the objector retains his
right to urge on its inadmissibility even at the stage of argument if the
document is marked as an exhibit. In such a case the document can be
marked as an exhibit subject to objection to avoid any future confusion even
though the objector can urge its inadmissibility without even raising objection
to the same at the time of the document being marked as exhibit. This is also
supported by the well-settled principle of law that mere marking of a document
as an exhibit does not prove the contents of the same. We may in this regard
refer to the judgments reported in 2006(11) SCC 331 (Shyamal Kumar Roy
v. Sushil Kumar Agarwal) apart from R.V.E. Venkatachala (supra).
11. So far as the second category of objection raised by the plaintiffs are
concerned, the same falls under the second class of objection considered in
R.V.E. Venkatachala (supra). In the second class of objection which relates to
the mode of proof of a document as held in R.V.E. Venkatachala (supra) and
many other judgments including that reported in AIR 1972 SC 608 : 1972 (1)
SCC 9 (P.C. Purushothama Reddiar v. S. Perumal) that such objection is to
be raised while the document is being tendered in evidence and marked as an
exhibit. Once the document is marked as exhibit without objection it will not be
open to a party to object to the same at a subsequent stage. This is more so in
view of the observations made by the Hon’ble Supreme Court in Raj Narain
(supra) that admissibility presupposes relevancy and admissibility also denotes
the absence of any absence of any applicable rule of exclusion.
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12. The document objected to is the certified copy of a joint affidavits
filed in a suit before this Court. Even if the certified copy of the said
affidavit was not shown to the witness, the defendants could have sought
for production of such affidavit from the custody of the Court to be
shown to the witness. Thus, there can be no procedural defect if the said
affidavit is marked as exhibit with objection at this stage. It will
substantiate the rule of fair play as laid down by the Hon’ble Supreme
Court. The plaintiffs will not be precluded from raising objection
regarding the said affidavit at a subsequent stage at the same time the
defendants will have an opportunity to remove the objection through this
witness or through any other witness if they so desire.
13. The issue as to the said affidavit to be a public document will also not be
germane at this stage as it is well-settled provision that secondary evidence can
be laid in respect of a document which is not a public document. This point
should be left open to be decided at the argument stage after the entire
evidence is complete. Once the document is marked exhibit with objection
neither its objection as to inadmissibility of the same or that the same has not
be proved will get eliminated debarring the objector to raise objection at a
subsequent stage.
14. Although, this Court is not under any obligation to decide at this stage
as to whether the said document is a public document or not but there
remains a doubt even after considering the judgements cited at the bar in this
aspect. Particularly when the existence of the document (said affidavit) is in
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dispute. The judgements cited have held a plaint or a written statement to be
not a public document as they are not prepared by a public officer but forms
part of record of acts of the Judge. The document can, however, be relied and
are admissible in evidence to the extent they form part of the record by
production of certified copy to prove its existence and conditions thereof under
Section 65 of the Evidence Act. It should not be lost sight of that prior to the
2002 amendment to the CPC a plaint or a written statement was required to be
only verified and not affirmed. Even after the 2002 Amendment the affidavit
appended to a plaint and a written statement are held to be procedural by the
Supreme Court in (2006) 2 SCC 777 (Vidyawati Gupta vs. Bhakti Hari
Nayak). This is also the reason for which at the trial the veracity of the
statements made in the plaint or the written statement is obtained through a
witness in details. Affidavit on the other hand stands in a different footing to
that of a plaint or written statement. The statements in a plaint or written
statement are required to be proved through evidence whereas in an affidavit
affirmed before an authorised officer the contents therein are taken to be true
unless rebutted. This is also the reason that the contents of an affidavit can be
the subject matter of a proceedings under Section 340 of the Code of Criminal
Procedure, 1973 (now Section 379 of BNSS) but statements in a plaint or
written statement does not alter such provision. The said affidavit, therefore,
may qualify subject to further scrutiny in the instant case under Section 74 (2)
of the Evidence Act. This exercise, if situation so arise may have to be done at
the final argument of the suit because the said affidavit in such a case can be
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challenged on the ground of having the status “not proved” as in Section 3 of
the Evidence Act.
15. The point as to the relevancy of the document as raised by the plaintiff
has to be tested in the touchstone of Section 5 of the Evidence Act and in
particularly the explanation thereto. The witness has in answer to several
questions as aforesaid have referred to Seva Nidhi Trust, the originating
summons suit wherein the affidavit has been filed as also the relationship of
M.P. Birla and Priyamvada Birla with other members of the larger Birla family
and their rights about the said Seva Nidhi Trust. The witness, therefore, can
be confronted about the existence and non-existence of the said affidavit and
the same being filed in the suit in cross-examination and the explanation to
Section 5 of the Evidence Act does not operate as a bar. The affidavit has also
become relevant under Section 11 of the Evidence Act as contended by the
plaintiff in the backdrop of the previous statements of the witness.
16. The third category of objection regarding the said affidavit being shown to
the witness during cross-examination without the same being previously
disclosed has been set to rest by the Hon’ble Supreme Court along with the
issue as to which documents can be shown to a witness in cross-examination
in the judgment reported in [(2024) 2 SCC 144] (Mohammed Abdul Wahid-
Versus-Nilofer And Another). The Hon’ble Supreme Court in the said
judgment had not only subscribed the legislative intent curving out an
exception for non- production of a document prior to being shown to a witness
in cross-examination as provided under Order VII Rule 14 Sub-Rule (4), Order
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VIII Rule 1A(4) and Order XIII Rule 1(3) of CPC but also have held that a
document can be shown to a witness being the party to the suit or even an
outsider witness to confront him with any document related to the facts in
issue or which has become relevant in the facts of the case or to test the
credibility of the witness. So far as the objection regarding relevancy of the
document is concerned I have already held that on a scrutiny of the questions
and answers given by the witness (PW-1) in his examination-in-chief as also in
cross-examination without any ambiguity has made the said document
relevant even if it was initially not relevant particularly when the witness has
referred to Seva Nidhi Trust as also the relationship of M.P. Birla and
Priyamvada Devi Birla with some of the members of the Birla family including
Mr. and Mrs. B.K. Birla. It cannot, therefore, be also said that the document
(certified copy of the affidavit) shown to the witness does not relate to previous
statements made by the witness which is reduced into writing and relevant to
matters in question as envisaged under Section 145 of the Evidence Act.
Furthermore, the allegations made in the written statement referred to by the
defendants also speaks of Seva Nidhi Trust and the relationship between M.P.
Birla and Priyamvada Devi Birla with other members of the Birla family and
rights in respect of such trust.
17. Although, the parties have cited several judgments which are recorded
hereinabove, I have not dealt with each of the said judgments individually but
have referred to the ratio laid down therein in course of discussion and
analysis made in the foregoing paragraphs which are germane to the instant
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case. There is also no quarrel as to the ratio laid down in the various
judgements cited at the bar but, the ratio of those judgments which I have
found germane to the facts of the case have been duly discussed after having
considered all.
Conclusion:
18. Thus, the objections raised by the plaintiff including those as to
relevancy of the document raised by the plaintiffs are, therefore, not
sustainable and are rejected. The said affidavit is allowed to be tendered
in evidence and marked as an exhibit with objection.
Re: IA GA NO. 85 of 2026
IA No. GA/85/2026 stands disposed of without any further order in the
light of the discussion as aforesaid.
Urgent photostat certified copy of this judgment and order, if applied for, be
supplied to the parties on priority basis after compliance with all necessary
formalities.
(ARINDAM MUKHERJEE, J.)
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