Harsh Vardhan Lodha & Ors vs Arvind Kumar Newar & Ors on 6 March, 2026

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    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

    SPONSORED

    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’ witness

    or 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

    16
    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

    17
    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

    19
    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

    20
    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

    21
    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

    22
    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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