DALGREEN AGRO PVT. LTD. Vs. SHAIKH ASADUR RAHMAN

JUDGEMENT

(1.) Learned counsel for the defendant urges that the witness of the plaintiff must be put on the box for the examination-in-chief after the plaintiff has filed an affidavit of evidence based on the statement of admission or denial of documents disclosed by the plaintiff under Order XI Rule 4 of The Code of Civil Procedure, as amended by The Commercial Courts Act, 2015.

(2.) Learned counsel for the plaintiff, on the other hand, relies on the amended Order XI Rule 4 (Admission and Denial of Documents) and sub-section (2) thereunder listing five heads under which the statement of admissions and denials should specifically be made. Counsel submits that the defendant has admitted the existence of 27 documents which the plaintiff's witness seeks to rely on. Counsel submits that once the defendant has admitted to the existence of the documents, these documents should be marked as exhibits and should not require to be proved in evidence by examination-in-chief of the plaintiff's witness. Counsel submits that the amendment to Order XI Rule 4 was for the purpose of expedition of the proceeding so that a witness may not be required to prove each and every document. Counsel also relies on Section 58 of the Evidence Act which states that a fact need not be proved in any proceedings which the parties agree to admit at the hearing or they agree to admit by writing or which are deemed to have been admitted by their pleadings. Counsel submits that after the documents are tendered as evidence, the defendant would not be denuded of its right to cross-examine the witness on the said documents. Counsel relies on Messrs. Lionel Edwards Limited Vs. State of West Bengal reported in AIR 1967 CAL 191 for the proposition that when documents are marked on admission dispensing with formal proof, the concerned party retains the right to challenge the documents by way of cross-examination at a later stage.

(3.) Learned counsel for the defendant submits that both the contents as well as execution of the documents have been denied by the defendant under Order XI Rule 4(2)(a) and (c), namely, the correctness of contents of the documents and the execution of the documents. Counsel submits that since the denial is in relation to the contents and execution, admissibility of the documents must be decided during examination-in-chief of the witness and relies on Order XVIII Rule 4 (recording of evidence) and the amendments brought in to the Section by the 2015 Act. Counsel submits that the provisions of Order XVIII Rule 4 cannot dispense with the requirement by proving a document. Counsel relies on R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P. Temple reported in (2003) 8 SCC 752 which held that the objection with regard to mode of proving has to be done at the time of tendering of a document and before the document is marked as an exhibit as otherwise a litigant may lose the opportunity of taking the objection at a subsequent point of time that the document has not been properly proved.