# Gulabpati v. Smt. Pushpa Rani Pandey & Ors

- **Citation:** (2020) 2 ILRA 992
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-25
- **Case number:** First Appeal No. 626 of 2015
- **Bench:** Sudhir Agarwal, Rajeev Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gulabpati-v-smt-pushpa-rani-pandey-ors-45329
- **Pages:** 20

## Headnote

A. Civil Law-Civil Procedure Code (5 of 1908)
- Order 13, Order 8 - General Rules (Civil)
Chapter 3 Part C Rules 40 to 69 - Exhibit visà-vis Marking of paper - Suit for declaration
that plaintiff entitled to family pension - none
of the documents produced by parties were
either put for admission or denial - No
endorsement made personally by Presiding
Judge of Court below on the documents so
filed, admitting them in evidence - No
document filed by either of parties was
marked as exhibit - Held - until and unless a
document is admitted in evidence, it cannot
be marked as exhibit and unless the aforesaid
exercise is undertaken, there is no legally
admissible evidence on record - Marking of
mere paper number and decision of a case on
that basis is not correct - Procedure adopted
by court below in total ignorance of Order 13,
Order 8 C.P.C. as well as Rules 40 to 69 of
Chapter 3 Part C of General Rules (Civil) -
Trial of Original Suit held to be erroneous -
Matter remitted back for fresh consideration
(Para 22)

First Appeal allowed. (E-5)

List of cases cited :

## Text

_Characters 0–39,911 of 67,817. This is a partial read: ask again with offset=39911 for what follows._

992 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)02ILR A992

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.11.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

First Appeal No. 626 of 2015

Gulabpati ...Appellant
Versus
Smt. Pushpa Rani Pandey & Ors.
 ...Respondents

Counsel for the Appellant:
Sri Ganesh Datt Misra

Counsel for the Respondents:
Sri Manoj Kumar Singh

A. Civil Law-Civil Procedure Code (5 of 1908)
- Order 13, Order 8 - General Rules (Civil)
Chapter 3 Part C Rules 40 to 69 - Exhibit visà-vis Marking of paper - Suit for declaration
that plaintiff entitled to family pension - none
of the documents produced by parties were
either put for admission or denial - No
endorsement made personally by Presiding
Judge of Court below on the documents so
filed, admitting them in evidence - No
document filed by either of parties was
marked as exhibit - Held - until and unless a
document is admitted in evidence, it cannot
be marked as exhibit and unless the aforesaid
exercise is undertaken, there is no legally
admissible evidence on record - Marking of
mere paper number and decision of a case on
that basis is not correct - Procedure adopted
by court below in total ignorance of Order 13,
Order 8 C.P.C. as well as Rules 40 to 69 of
Chapter 3 Part C of General Rules (Civil) -
Trial of Original Suit held to be erroneous -
Matter remitted back for fresh consideration
(Para 22)

First Appeal allowed. (E-5)

List of cases cited :
1. New Okhla Industrial Development Authority Vs.
Kendriya Karamchari Sahkari Grih Nirman Samiti
Ltd., (2017) 4 UPLBEC 3077,

(Delivered by Hon'ble Rajeev Misra, J.)

1. Present First Appeal under Section 19
of Family Court Act, 1984 (hereinafter referred
to as 'Act 1984') has been filed by plaintiffappellant
challenging
Judgment
dated
28.10.2015 and decree dated 30.10.2015
passed by Principal Judge, Family Court, Basti
dismissing O.S. No. 15 of 2010 (Gulabpati Vs.
Smt. Pushpa Rani Pandey and others).

2. We have heard Mr. Ganesh Datt
Mishra, learned counsel for plaintiff-appellant
and Mr. Manoj Kumar Singh, learned counsel
representing defendant-respondents 2 and 3. In
spite of revision of cause list, no one has
appeared on behalf of defendant-respondent 1,
Smt. Pushpa Pandey.

3.

Plaintiff-appellant
Gulabpati
(hereinafter referred to as 'appellant') filed
O.S. No. 15 of 2010 (Gulabpati Vs. Smt.
Pushpa Rani Pandey and others) for a
decree
of
declaration
declaring
that
plaintiff alone is legally wedded wife of
Murli Prasad @ Murlidhar resident of
Village Dubaul, Tappa, Hardi, Pargana
Basti Pashchim, Tehsil Harraiya, District
Basti, who worked in Air Force, as such,
plaintiff alone is entitled to receive family
pension.

4. According to plaint allegations, it
was alleged that plaintiff is legally wedded
wife of Murlidhar Pandey @Murli Prasad
Pandey son of Chandra Prakash Pandey
resident of Village Dubaul, Tappa, Hardi,
Pargana Basti Pashchim, Tehsil Harraiya,
District Basti. Marriage of plaintiff with
Murlidhar Pandey @ Murli Prasad Pandey
was
solemnized
on
6.6.1965.
From
2 All. Gulabpati Vs. Smt. Pushpa Rani Pandey & Ors.
993
aforesaid wedlock and co-habitation of
plaintiff and Murlidhar Pandey @ Murli
Prasad Pandey, a daughter was born.
Subsequently, Murlidhar Pandey @ Murli
Prasad Pandey joined Air Force under the
Ministry of Defence. Plaintiff being a
simple and illiterate lady was ill-treated by
Murlidhar Pandey @ Murli Prasad Pandey
and his family members. After Murlidhar
Pandey @ Murli Prasad Pandey joined Air
Force, status of plaintiff was reduced to
that of a domestic servant. Plaintiff is
alleged
to
have
complained
about
aforesaid conduct to Murlidhar Pandey @
Murli Prasad Pandey but no heed was
paid. As plaintiff and her minor daughter
were neglected by Murlidhar Pandey @
Murli Prasad Pandey, she accordingly
initiated proceedings under Section 125
Cr.P.C. which was registered as Case No.
14 of 1981 and allowed, vide Judgment
and order dated 9.1.1985. Murlidhar
Pandey @ Murli Prasad Pandey was
directed to make payment at the rate of
Rs.250/- for plaintiff and Rs.150/- for
minor daughter, per month. Against order
dated 9.1.1985, Murlidhar Pandey @
Murli Prasad Pandey filed Criminal
Revision No. 255 of 1985, which was
allowed, vide order dated 11.4.1986.
Against order dated 11.4.1986 passed by
Revisional Court, i.e., Vth Additional
District & Sessions Judge, Basti, plaintiff
filed Criminal Revision No. 31 of 1981
(Smt. Gulabpati Vs. State of U.P.) before
High
Court,
Allahabad,
which
was
allowed, vide order dated 23.3.2005.
Effect of same was that order dated
11.4.1986 came to be set aside resulting in
restoration of earlier order dated 9.1.1985
passed by trial Court. Subsequent to
Judgment of High Court, plaintiff filed an
execution
case
and,
accordingly,
Murlidhar Pandey @ Murli Prasad Pandey
started paying the arrears of maintenance
due in instalments. On account of rise in
cost of living, plaintiff filed application for
enhancement of maintenance, which was
allowed and accordingly, amount of
maintenance was respectively enhanced to
Rs.400/-
and
Rs.200/-
per
month.
Daughter of plaintiff, Shashibala got
married with the help of family members
of plaintiff's parental side as well as
relatives. Subsequently, plaintiff again
filed an application for enhancement
which was allowed, vide order dated
15.11.2007, and maintenance payable to
plaintiff was enhanced to Rs.2,000/- per
month. In spite of fact that from wedlock
of plaintiff and Murlidhar Pandey @ Murli
Prasad Pandey, a daughter was born, yet
Murlidhar Pandey @ Murli Prasad Pandey
indulged in extra-marital affair by keeping
Smt. Pushpa Devi as his kept. Plaintiff,
therefore, filed Criminal Case No. 92 of
1984 (Smt. Gulabpati Vs. Murlidhar) in
the court of IVth Additional Judicial
Magistrate,
Basti
wherein
Murlidhar
Pandey @ Murli Prasad Pandey and other
accused were summoned, vide summoning
order dated 14.6.1984. Aggrieved by
summoning order dated 14.6.1984, parents
of Murlidhar Pandey @ Murli Prasad
Pandey filed Criminal Revision No. 283 of
1984 (Chandra Prakash Vs. Gunjapati)
which was allowed, vide order dated
26.2.1985. On aforesaid facts, it was
alleged that plaintiff is legally wedded
wife of Murlidhar Pandey @ Murli Prasad
Pandey. During the life-time of plaintiff,
defendant Smt. Pushpa Devi cannot be
legally wedded wife of Murlidhar Pandey
@ Murli Prasad Pandey and, therefore, she
is kept of Murlidhar Pandey @ Murli
Prasad Pandey. During pendency of
execution proceedings regarding payment
of maintenance amount, counsel for
Murlidhar Pandey @ Murli Prasad Pandey
informed Court, i.e., IIIrd Additional Chief
994 INDIAN LAW REPORTS ALLAHABAD SERIES
Judicial Magistrate, on 18.7.2013 that
Murlidhar
Pandey
@
Murli
Prasad
Pandeyhas died on 1.7.2009 and in proof
of same also filed the condolence card.
Upon death of Murlidhar Pandey @ Murli
Prasad Pandey, plaintiff went to her
marital home. Along with her mother-inlaw Smt. Prem Rani, she performed all the
rituals upon death of her husband.
However, father-in-law of plaintiff refused
to give share of late husband to plaintiff.
Plaintiff had also filed O.S. No. 119 of
2004 for maintenance. On account of
information,
given
by
counsel
for
Murlidhar Pandey @ Murli Prasad Pandey
that he has died, substitution application
was filed, which has been allowed. In spite
of service of notice, defendants have not
yet appeared on account of which suit has
proceeded ex-parte against them. Even
though, upon death of Murlidhar Pandey
@ Murli Prasad Pandey, all rituals were
performed by plaintiff as his widow with
the consent of her father/mother-in-law but
father/mother-in-law of plaintiff refused to
maintain her. Subsequently, name of
plaintiff was scored off from family
register and name of Pushpa Rani was got
incorporated even though she is not legally
wedded wife of Murlidhar Pandey @
Murli Prasad Pandey. No marriage of
Murlidhar Pandey @ Murli Prasad Pandey
could take place with Pushpa Rani during
life time of plaintiff. Husband of plaintiff
was initially employed as Airman and
upon superannuation, he started working at
some other place, therefore, for grant of
family pension, plaintiff submitted an
application through District Basic Board,
Basti, which was replied, vide letter No.
R.O./2853/6{2182}/1807 stating therein
that Murlidhar Pandey @ Murli Prasad
Pandey has nominated Smt. Pushpa
Pandey as his wife in records. It was also
alleged that entry so made in official
records is not binding upon plaintiff as
Pushpa Devi could not be legally wedded
wife of plaintiff. It was further alleged that
on complaints made by plaintiff, martial
proceedings were initiated again plaintiff
but on account of order dated 11.4.1986
passed by Vth Additional District and
Sessions Judge, aforesaid proceedings
were
stayed.
Aforesaid
order
dated
11.4.1986 was set aside by High Court.
Just on account of an illegal nomination in
service records that defendant Pushpa Rani
is wife of Murlidhar Pandey @ Murli
Prasad Pandey, rights of plaintiff to
receive family pension cannot be curtailed.

5. Defendant 1 Smt. Pushpa Pandey
contested the suit of plaintiff. She,
accordingly, filed a written statement
whereby she not only denied plaint
allegations but also raised additional pleas.
Defendant 1 admitted the place of
residence of Murlidhar Pandey @ Murli
Prasad Pandey as stated in plaint but she
denied status of plaintiff as legally wedded
wife of Murlidhar Pandey @ Murli Prasad
Pandey. The factum regarding birth of
Shashikala
from
wedlock
and
cohabitation of plaintiff and Murlidhar
Pandey @ Murli Prasad Pandey was
denied. Appointment of Murlidhar Pandey
@ Murli Prasad Pandey in Defence
Department
was,
however,
admitted.
Defendant 1 also denied the allegations
made by plaintiff that she is a simple lady
and only after Murlidhar Pandey @ Murli
Prasad Pandey got employed, husband of
plaintiff as well as his parents started
neglecting plaintiff and reduced her status
to that of a domestic servant. She also
denied the alleged conduct of parents of
Murlidhar Pandey @ Murli Prasad Pandey
and also the fact that plaintiff was ousted
from her marital home. It was also denied
that plaintiff is incapable of maintaining
2 All. Gulabpati Vs. Smt. Pushpa Rani Pandey & Ors.
995
herself.
Judgment/order
passed
in
proceedings under Section 125 Cr.P.C. are
not binding as they have been rendered in
summary proceedings. Factum regarding
filing of criminal revision and it being
allowed as stated in para 5 of plaint was
admitted but rest of the averments were
denied. Allegations made in plaint that
defendant 1 is kept of Murlidhar Pandey
@ Murli Prasad Pandey was completely
denied and objection to the use of word
'kept' was seriously raised. It was also
alleged that plaintiff was initially working
in Montesary School and thereafter in a
Nursing Home as maid. Factum regarding
death of Murlidhar Pandey @ Murli
Prasad Pandey was also denied. Allegation
regarding
performance
of
religious
ceremony by plaintiff at her marital home
upon death of Murlidhar Pandey @ Murli
Prasad Pandey was also denied. It was
further pleaded that name of defendant 1 is
recorded in service records and, therefore,
she is the legally wedded wife of
Murlidhar
Pandey
@
Murli
Prasad
Pandey. Reference was also made to
various documents in which name of
defendant 1 is shown as wife of Murlidhar
Pandey @ Murli Prasad Pandey. Plea
regarding maintainability of suit was also
raised. On the aforesaid defence, it was
prayed that suit filed by plaintiff be
dismissed.

6. Suit filed by plaintiff was also
contested by defendants 2 and 3. Defence
of defendants 2 and 3 was primarily based
upon entry in service records of Murlidhar
Pandey @ Murli Prasad Pandey. After
retirement, vide, Pension Payment Order
no.
008/14/B/87892/91,
pension
was
sanctioned in favour of Murlidhar Pandey
@ Murli Prasad Pandey. Upon death of
Murlidhar Pandey @ Murli Prasad Pandey
on
31.8.1991,
family
pension
was
sanctioned in favour of Smt. Pushpa Rani
Pandey as Smt. Pushpa Rani Pandey was
nominated as wife of Murlidhar Pandey @
Murli Prasad Pandey, In the service
records of Murlidhar Pandey @ Murli
Prasad Pandey, it is mentioned that
Murlidhar Pandey @ Murli Prasad Pandey
married Pushpa Rani Pandey on 5.2.1980
and from aforesaid wedlock two children,
namely, Master Sachin and daughter
Sangeeta
were
born.
However,
in
paragraph 24 of written statement, it was
pleaded that though name of Pushpa Rani
Pandey is mentioned in the records of Air
Force as legally wedded wife of Murlidhar
Pandey @ Murli Prasad Pandey, yet
plaintiff has been informed that she can
approach appropriate Court for redressal
of her grievance. On aforesaid defence, it
was pleaded by defendants 2 and 3 that
suit for declaration filed by plaintiff is
liable to be dismissed.

7. On these pleadings raised by
parties, Court below framed following
issues for adjudication:-

1. Whether plaintiff alone is
legally wedded wife of Murlidhar Pandey
@ Murli Prasad Pandey having service
no.612182 C.P.L. Pandey, M.P. and,
therefore, entitled to family pension?

2.
Whether
suit
has
been
undervalued and court fees paid is
deficient?

3. Whether suit is barred by
Order 39 Rule 2 C.P.C.?

4. Whether plaintiff has the right
to institute present suit?

5. Whether the plaint is not duly
signed and verified?

6.
Whether
Court
has
jurisdiction to try the suit?

7. Whether plaintiff is entitled to
any other relief?
996 INDIAN LAW REPORTS ALLAHABAD SERIES

8. Plaintiff in order to prove her case,
adduced herself as P.W.1, Shashibala as P.W.2
and Umapati Mishra as P.W. 3. As per
impugned judgement, Plaintiff also filed
following documents in evidence:-

(i) Paper No. 41 (Ga) -certified copy
of order dated 7.4.2010.

(ii) Paper No. 83 (Ga)-copy of order
passed by High Court in Criminal Revision
No. 31 of 1991.

(iii) Vide list of documents (Paper
No. 9 (Ga)) eight documents, i.e., paper no. 10
(Ga) to 19(Ga) were filed. These are Paper
Nos. 10(Ga) Reply dated 9.11.2002, sent by
Wing Commander, OIC, P & W.W. (F.P),
11(Ga) Judgement dated 26.2.1985, passed in
Criminal Revision No. 263 of 1984 (Chandra
Prakash Pandey and Others Vs. Gulabpati),
12(Ga) Phot copy of judgement dated
23.3.1995, passed in Criminal Revision No. 31
of 1981, 13 (Ga) Certified copy of entry in
Voter list, 14 (Ga) Reply dated 8.8.1980,
issued by Sqn.Ldr Officer 1/c- P-10, 15 (Ga)
Photo copy of letter 16.10.2019, 16 (Ga)
Document not discernible, 17(Ga) Original
post card/postal receipts, 18 (Ga) Photo copy
of question-answer form, 19(Ga) Photo copy
of application dated 18.7.2009 submitted by
counsel for opposite party in proceedings
under Section 128 Cr.P.C.

(iv) Vide list of documents (Paper
No. 56 (Ga)) plaintiff filed following
documents:- (a) Paper No. 57 (Ga)-certificate
of Pradhan, Paper No. (66Ga to 83Ga)-copy of
order sheet of Criminal Revision No. 124
/11/97 (Gulabpati Vs. Murlidhar), Paper No.
102(Ga)-photo copy of letter, Paper No.97Ga-
extract of family register, Paper No. 98Gavoter ID card, Paper No. 121(Ga)-report of
Tehsildar

9. Defendant 1 filed paper no. 39 (Ga).
Objections dated 4.3.2011, Paper No. 44 (Ga)-
extract of family register, Paper No. 45 (Ga)-
copy of application for marriage, Paper No. 46
(Ga)- Identity Card as well as joint photograph,
photo copy of Voter I.D. Card of Pushpa Rani
and Voter I.D. Card of Sachin Kumar. After
filing
of
written
statement
and
upon
submission of documents to be taken as
documentary evidence on behalf of defendant
1, she abandoned proceedings of suit,
consequently, suit proceeded ex-parte against
defendant 1.

10. Defendants 2 and 3 filed attested
copy of service book of Murlidhar Pandey
@ Murli Prasad Pandey. No other
document was adduced by defendants to
be taken as documentary evidence nor
defendants 2 and 3 adduced any witness
on their behalf.

11. Upon consideration of pleadings
of parties, Court below dismissed suit of
appellant, vide Judgment dated 28.10.2015
and decree dated 30.10.2015.

12. Perusal of Judgment of Court
below shows that upon evaluation of oral
evidence, court below concluded that
plaintiff and her witnesses failed to prove
the place and time of marriage. Upon
evaluation of documentary evidence in the
light of Section 5 of Hindu Marriage Act,
1955,
Court
below
arrived
at
the
conclusion that plaintiff has failed to prove
herself as legally wedded wife of Murali
Prasad Pandey.

13. In respect of Issues 2 and 6,
Court below held that aforesaid issues
have already been decided, vide order
dated 23.11.2011 and, therefore, order
dated 23.11.2011 will be part of Judgment.

14. Issue No. 3 was decided in
negative, but in favour of plaintiff as such
it was held by Court below that suit of
2 All. Gulabpati Vs. Smt. Pushpa Rani Pandey & Ors.
997
plaintiff is not barred by Order 39 Rule 2
C.P.C.

15. Regarding Issue No. 4, Court
below held that defendants have failed to
prove as to how plaintiff has no right to
institute suit, as such, aforesaid issue was
decided
in
negative
and
against
defendants.

16. Court below upon evaluation of
plaint held that plaint is duly signed and
verified, as such, Issue No. 5 was decided in
favour of plaintiff.

17. In respect of relief to which plaintiff
was entitled, Court below held that since
plaintiff has failed to prove herself to be legally
wedded wife of Murlidhar Pandey @ Murli
Prasad Pandey, she is not entitled to any relief.
Accordingly, issue no. 7 was decided against
plaintiff.

18. Mr. G.D. Mishra, learned counsel for
appellant in challenge to impugned Judgment
and decree passed by Court below has placed
before us impugned Judgment passed by Court
below. He submits that court below while
deciding Issue No.1 has referred to various
documents. However, perusal of original
record shows that documents referred to by
Court below have not been marked 'Exhibits'.
According to counsel for appellant until and
unless a document is admitted in evidence, it
cannot be marked as exhibit and unless the
aforesaid exercise is undertaken, there is no
legally admissible
evidence on record.
Therefore, submission urged is that court
below has conducted an erroneous trial and,
therefore, Judgment and decree passed by
court below is liable to be set aside.

19. Mr. Manoj Kumar Singh, learned
counsel representing respondents 2 and 3, on
the other hand, has supported impugned
Judgment and decree by placing reliance upon
findings recorded by Court below as well as
observations made in impugned Judgment.
According to Mr. Manoj Kumar Singh,
findings recorded by Court below cannot be
said to be illegal, perverse or erroneous, as
such, same are not liable to be interfered with.
Once findings recorded by Court below are
maintained by this Court, then conclusion
cannot be challenged. It is, thus, vehemently
urged that present First Appeal does not
involve any point of determination in law or
fact. Hence, same is liable to be dismissed.

20. The issues involved in the
present First Appeal can better be
appreciated in the light of provisions
contained in Order 13, Order 8 C.P.C and
Chapter 3 Part C, Rules 40 to 69, General
Rules (Civil).

21. When record of court below is
scrutinized in the light of provisions
noted hereinabove, we find that none
of the documents produced by parties
were either put for admission or denial.
Consequently, none of the documents
were either admitted in evidence or
proved in evidence. As such, no
document filed by either of the parties
was marked as an exhibit. What will be
the
consequence
when
such
a
procedure
is
adopted
has
been
adequately dealt with in New Okhla
Industrial Development Authority
Vs. Kendriya Karamchari Sahkari
Grih Nirman Samiti Ltd., (2017) 4
UPLBEC 3077, wherein following has
been observed in paragraphs 19, 20,
21, 22, 23, 24, 25, 26, 27, 28, 29, 30,
31, 32, 33, 34, 35, 36, 37, 38, 39, 40,
41, 42, 43, 44, 45, 46, 47, 48, 49, 50,
51, 52, 53, 54, 55, 56, 57, 58, 59, 60,
61, 62, 63, 64, 65, 66, 67, 68, 69, 70,
71, 72, 73, 74, 75, 76, 77, 78, 79:-
998 INDIAN LAW REPORTS ALLAHABAD SERIES

"19.
While
advancing
arguments, it was also submitted that a
very strange procedure in this case was
followed by Court below inasmuch as
parties
submitted
documents
which
included original, photostate copies and
true copies. All these documents were
marked paper numbers. No exercise of
admission
or
denial
of
documents
admitting documents in evidence, marking
of exhibits etc. was undertaken and only
on the basis of paper numbers, Court
below has proceeded to decide the matter.
Infact there is not a single evidence
admitted by Court in accordance with
procedure prescribed in Order 13 CPC
read with General Rules (Civil), 1957
(hereinafter referred to as, 'GR(C), 1957')
applicable to Court below and therefore,
judgement is based on no valid evidence at
all, hence on this ground alone it is liable
to be set aside.

20. The entire original record of
Court below is before us. We have examined
entire record and found that there is not a
single document which Court has admitted in
evidence and marked exhibit number. No
document contains any endorsement of
admission or denial. A list of documents
alongwith documents is there which have been
given paper numbers. Whenever documents
were filed before Court, the office has given
paper number and those documents have been
treated as evidence by Court below in deciding
suit.

21. When questioned, learned
counsel appearing for plaintiff-respondent
whether any document was admitted as
evidence and exhibit numbers were marked, he
fairly stated that no such procedure has been
followed by Court below and this is also
evident from impugned judgement of Court
below.

22. In these circumstances, we have
examined for deciding these appeals only one
question for determination i.e. "whether
without admitting documents filed by parties
as evidence and exhibiting the same in
accordance with procedure prescribed under
Order 13 read with Rules 4 CPC, was
permissible for Court below to decide suit
relying on documents, which are not admitted
in evidence at all and can be said to be a
judgment based on valid evidence."

23.
A
perusal
of
impugned
judgement shows that a large number of
documents were filed, which included original
documents, photostate copies and true copies.
No document has been referred by Court
below with exhibit number. All the documents
are referred with paper number. After
examination of original record, we find that no
document has been marked as exhibit. There is
no endorsement by Presiding Officer of Court
below admitting any document in evidence
and infact even there is no endorsement by
parties regarding admission or denial of
document(s) filed by other party.

24. It is now a well established
principle that a document, not admissible
in evidence is to be excluded and cannot
be considered a valid evidence for
deciding suit.

25. In Roman Catholic Mission
Vs. State of Madras, 1966 SCR (3) 283
Court held that a document not admissible
in evidence, though brought on record, has
to be excluded from consideration.

26.
Procedure
for
taking
documentary
evidence
on
record
is
provided in Order 13 CPC read with
General Rule (Civil). It is no doubt true
that it is a procedural law, but this
procedure is consistent with the principles
of natural justice so that no party may
suffer in the assessment of evidence to
prove a fact, if any documentary evidence
is relied, which is either in admissible in
evidence or has not been otherwise
proved.
2 All. Gulabpati Vs. Smt. Pushpa Rani Pandey & Ors.
999

27. Section 3 of Indian Evidence
Act, 1872 (hereinafter referred to as, 'Act,
1872') says that, "fact is said to be proved
when, after considering the matters before
it, the Court either believes it to exist, or
considers its existence so probable that a
prudent
man
ought,
under
the
circumstances of the particular case, to act
upon the supposition that it exists."

28. It is evaluation of result
drawn by applicability of rule. The
evaluation obviously is based on the
pleadings between parties and evidence,
oral and/or documentary, led by respective
parties. In several cases on preponderance
of probability of evidence it can be held
that a fact is proved and and therefore to
decide suit by holding that fact has been
proved, legal evidence is of utmost
importance.

29. Here is not a case, where
Court has admitted documents and marked
exhibits without any objection by either of
parties but unfortunately here is a case
where documents filed are different
manner, i.e. original documents, photostate
copies and true copies have been filed. At
the time of filing the same were given
paper numbers but thereafter no process
whatsoever of admitting documents as
evidence in accordance with procedure
prescribed in statute has undergone. Suit
has been decided on these documents as
such without admitting even a single
document as evidence.

30. At this stage, it would be
appropriate to have a bird's eye view of
relevant provisions laying down procedure
for admitting documents as evidence and
marking of same as exhibits.

31. Order
XIII
deals
with
production, impounding and return of
documents. Rule 1 thereof as it stands
today, substituted by CPC Amendment
Act, 1999 (hereinafter referred to as
"Amendment
Act,
1999")
w.e.f.
01.07.2002. Earlier Rule 1 reads as under:-

"(1) Documentary evidence to
be produced at or before the settlement
of issues.--(1) The parties or their pleaders
shall produce, at or before the settlement
of issues all the documentary evidence of
every description in their possession or
power, on which they intend to rely, and
which has not already been filed in Court,
and all documents which the Court has
ordered to be produced.

(2) The Court shall receive the
documents so produced: Provided that
they are accompanied by an accurate list
thereof prepared in such form as the High
Court directs."

32. The substituted Rule 1 which
is effective from 01.07.2002, reads as
under:

"1. Original documents to be
produced at or before the settlement of
issues.-(1) The parties or their pleader
shall produce on or before the settlement
of issues, all the documentary evidence in
original where the copies thereof have
been filed along with the plaint or written
statement.

(2) The court shall receive the
documents so produced:

Provided
that
they
are
accompanied by an accurate list thereof
prepared in such form as the High Court
directs.

(3) Nothing in sub-rule (1) shall
apply to documents--

(a) produced for the crossexamination of the witnesses of the other
party; or

(b) handed over to a witness
merely to refresh his memory."

33. This is consistent with Order
VII Rule 14 in respect of the documents of
plaintiff and Order VIII Rule 1A in respect
of the documents of defendants. Both
1000 INDIAN LAW REPORTS ALLAHABAD SERIES
these
rules
have
also
undergone
amendment by substitution and Order VII
Rule 14 and Order VIII Rule 1A as
inserted by Amendment Act, 1999, read as
under:-

Rule 14 before Amendment

"Rule
14.
Production
of
document on which plaintiff sues--(1)
Where a plaintiff sues upon a document in
his possession or power, he shall produce
it in Court when the plaint is presented,
and shall at the same time deliver the
document or a copy thereof to be filed
with the plaint.

List of other documents.--(2)
Where he relies on any other documents
(whether in his possession or power or
not) as evidence in support of his claim, he
shall enter such documents in a list to be
added or annexed to the plaint."

Rule 14 after Amendment

"14. Production of document on
which plaintiff sues or relies-(1) Where a
plaintiff sues upon a document or relies
upon document in his possession or power
in support of his claim, he shall enter such
documents in a list, and shall produce it in
court when the plaint is presented by him
and shall, at the same time deliver the
document and a copy thereof, to be filed
with the plaint.

(2) Where any such documents
not in the possession or power of the
plaintiff, he shall, wherever possible, state
in whose possession or power it is.

(3) A document which ought to
be produced in Court by the plaintiff when
the plaint is presented, or to be entered in
the list to be added or annexed to the plaint
but is not produced or entered accordingly,
shall not, without the leave of the Court,
be received in evidence on his behalf at the
hearing of the suit.

(4) Nothing in this rule shall
apply to document produced for the cross
examination of the plaintiff's witnesses, or,
handed over to a witness merely to refresh
his memory."

Order VIII Rule 1A (inserted by
Amendment Act, 1999)

"1A. Duty of defendant to
produce documents upon which relief is
claimed or relied upon by him- (1)
Where the defendant bases his defence
upon a document or relies upon any
document in his possession or power, in
support of his defence or claim for set off
or counter claim, he shall enter such
document in a list, and shall produce it in
court when the written statement is
presented by him and shall, at the same
time, deliver the document and a copy
thereof, to be filed with the written
statement.

(2) Where any such document is
not in the possession or power of the
defendant, he shall, wherever possible,
state in whose possession or power it is.

(3) A document which ought to
be produced in Court by the defendant
under this rule, but, is not so produced
shall not, without the leave of the Court,
be received in evidence on his behalf at the
hearing of the suit.

(4) Nothing in this rule shall
apply to documents--

(a) produced for the crossexamination of the plaintiff's witnesses, or

(b) handed over to a witness
merely to refresh his memory."

34. Order XIII Rule 1 now
creates an obligation upon parties or their
pleader to produce original documents on
or before settlement of Issues. Order XIII
Rule 2 earlier provided effect of nonproduction of documents but now by
Amendment Act, 1999 it has been omitted.
If primary evidence i.e. original document
is not available and party intends to lead
secondary evidence, then all conditions
2 All. Gulabpati Vs. Smt. Pushpa Rani Pandey & Ors.
1001
provided in Evidence Act have to be
satisfied. Rule 3 permits a Court to reject a
document at any stage of the suit which it
considers
irrelevant
or
otherwise
inadmissible after recording grounds of
such rejection. Rule 4 contemplates
endorsement on the documents admitted in
evidence and it has to be done by Court
since such endorsement has to be signed or
initialled by Presiding Officer of the
Court. It reads as under:-

"4.
Endorsements
on
documents admitted in evidence- (1)
Subject to the provisions of the next
following sub-rule, there shall be endorsed
on every document which has been
admitted in evidence in the Suit the
following particulars, namely:--

(a) the number and title of the
suit,

(b) the name of the person
producing the document,

(c) the date on which it was
produced, and

(d) a statement of its having been
so admitted; and the endorsement shall
be signed or Initialed by the judge.

(2)
Where
a
document
so
admitted is an entry in a book, account or
record, and a copy thereof has been
substituted for the original under the next
following rule, the particulars aforesaid
shall be endorsed on the copy and the
endorsement thereon shall be signed or
initialed by the Judge."

35. Order XIII Rule 5 provides
for endorsement on copies of admitted
entries in books, accounts and records.
Rule 6 talks of endorsement of documents
rejected as inadmissible. The Rules read as
under:-

"5. Endorsements on copies of
admitted entries in books, accounts and
records.- (1) Save in so far as otherwise
provided by the Bankers' Books Evidence
Act, 1891 (XVIII of 1891), where a
document admitted in evidence in the suit
is an entry in a letter book or a shop book
or other account in current use, the party
on whose behalf the book or account is
produced may furnish a copy of the entry.

(2) Where such a document is an
entry in a public record produced from a
public office or by a public officer, or an
entry in a book or account belonging to a
person other than a party on whose behalf
the book or account is produced, the court
may require a copy of the entry to be
furnished--

(a) where the record, book or
account is produced on behalf of a party,
then by that party, or

(b) Where the record, book or
account is produced in obedience to an
Order of the court acting of its own
motion, then by either or any party.

(3) Where a copy of an entry is
furnished under the foregoing provisions
of this rule, the court shall, after causing
the copy to be examined, compared and
certified in manner mentioned in rule 17 of
Order VII, mark the entry and cause the
book, account or record in which its occurs
to be returned to the person producing it.

6. Endorsements on documents
rejected as inadmissible in evidence.-
Where a document relied on as evidence
by either party is considered by the court
to be inadmissible in evidence, there shall
be endorsed there or the particulars
mentioned in clauses (a), (b) and (c) of
Rule 4, sub-rule (1), together with a
statement of its having been rejected, and
the endorsement shall be signed or
initialled by the Judge.

36. Order XIII Rule 7 CPC
provides
that
documents
which
are
admitted in evidence shall form part of
record of suit. The documents not admitted
in evidence shall not form part of record
1002 INDIAN LAW REPORTS ALLAHABAD SERIES
and shall be returned to the persons
respectively producing them.

37. Order XIII Rule 8 CPC
empowers Court to impound a document
and keep in the custody of officer of
Court, if it sees sufficient cause, for such
period and subject to such conditions, as
Court thinks fit.

38. Rule 9 provides for return of
admitted documents after suit is disposed
of, and, either time for filing appeal has
expired or appeal has been disposed of.
Proviso covers a situation where a
document may be returned at any time
earlier
than
the
period
provided
hereinabove in certain conditions. Rule 10
states that Court may, of its own motion,
and its discretion, upon application of any
of the parties to suit, send for, either from
its own record or from any other Court,
record of any other suit or proceeding, and
inspect the same. Conditions applicable
when such order is passed on the
application, are contained in sub-rule 2 of
Rule 10. Sub-rule 3 declares that Rule 10
shall not enable Court to use in evidence,
any document which under the law of
evidence would be inadmissible in suit.
Rule 11 extends provisions relating to
documents to all other material objects
producible as evidence.

39. In exercise of supervisory
powers under Article 227 of Constitution
of India read with Section 122 CPC, GR
(C),
1957
have
been
notified
in
supersession of all existing Rules on the
subject. These Rules have 28 Chapters
dealing with different aspects of procedure
to be followed, not only in trial of civil
suits etc., but also tell subordinate Courts,
manner of maintenance of record of
various
proceedings
and
other
administrative aspects.

40. Part (A) deals with parties to
the proceedings; (B) with applications and
pleadings; (C) with Documents; (D)
Commissions;
(E)
Affidavits;
(F)
Adjournments; (G) Hearing of suit; (H)
Transfer or withdrawal of cases; and, (I)
Judgment and decree.

41. For purpose of present matter
we confine ourselves to Chapter III Part C
which deals with documents and contains
Rules 40 to 69.

42. Rule 40 of GR (C), 1957
specify the persons who may produce
documents in the Court and says that it
may be by parties, by persons, other than
parties and on requisition issued by Court.
Rule 41 imposes an obligation where the
documents produced by party or his
witness is in a language other than Hindi,
Urdu or English and says that it shall be
accompanied by a correct translation of the
document in Hindi, written in Devnagri
script. Such translation shall bear a
certificate of party's lawyer to the effect
that the translation is correct. If parties are
not represented by a lawyer, Court shall
have the translation certificate of any
person appointed by it in this behalf at the
cost of the party concerned.

43. Rule 42 of GR (C), 1957
contemplates that parties desiring to
produce any document in Court, shall,
before producing it in any Court, obtain
admission or denial, recorded on back of
the document by the opposite party's
lawyer. If opposite party is not represented
by lawyer, Court shall get admission or
denial by the party in its presence and
may, for the purpose, examine the party.

44. Rule 43 lays procedure of list
of documents contemplated in Order VII
Rule 14 and Order XIII Rule 1 CPC and
says that such list of documents shall be in
form (part IV-71). It further says that no
document whensoever produced, shall be
received unless accompanied by the said
form duly filled up. In case a document is
2 All. Gulabpati Vs. Smt. Pushpa Rani Pandey & Ors.
1003
produced
by
a
witness
or
person
summoned to produce documents, form
shall be supplied by the parties at whose
instance the document is produced. It also
requires that list as well as the documents
shall be immediately entered in the general
index.

45. If there is any erasures or
additions in the documents, other than a
registered documents or certified copy,
Rule 44 of GR (C), 1957 states that such
document shall be accompanied by a
statement clearly describing such erasure,
addition or interlineation and signed by
such party. Reference to such statement
shall be made in the list form (part IV-71)
with which paper is filed.

46. Rule 45 is basically a
provision for safety and convenience of
perusal of documents when it is a small
piece of paper or of historic value or
written on both sides. It reads as under:-

"45. Small documents and
documents of historic value.--Small
documents when filed in Court shall be
filed pasted on a paper equal to the size of
the record, and the margin of the paper
should be stitched to the file so that no part
of the document is concealed by the
stitching. If a document contains writing
both on the front and the back, it should be
kept in a separate cover, which should be
stitched to the file at the proper place
leaving the main document untouched."

47.
When
a
party
require
production of a public record, Rule 46 says
that application shall be submitted by such
party
accompanied
by
an
affidavit
showing how such party requiring record
has satisfied itself that it is material to the
suit and why a certified copy of document
cannot be produced or will not serve the
purpose.

48. When a public record is
ordered to be produced but its production
require sanction of Head of Department,
Rule 47 deals with such a situation and
says as under:-

"47. Documents for production
of which sanction of head of department
is necessary.--When a Court decides that
in the interests of justice it is necessary
that it should have before it a document
which cannot be produced without the
sanction of the head of the department
concerned, it shall in its order asking for
such document set out as clearly as
possible (a) the facts, for the proof of
which the production of the document is
sought; (b) the exact portion or portions of
the document required as evidence of the
facts sought to be proved. The Court
summoning the document shall fix a date
for its production, which should not be less
than three weeks from the date of issue of
summons."

49.