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Sri Debjit Hore vs Smt. Arpita Hore on 20 December, 2019

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IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE

Present:
Hon’ble Justice Manojit Mandal.

C.O. No. 2544 of 2019
Sri Debjit Hore
Vs.
Smt. Arpita Hore

For the petitioner : Mr. Amitava Ghosh

For the opposite party: Mr. Jayanta Kumar Mondal

Heard on : 06.12.2019

Judgment on : 20.12.2019

Manojit Mandal, J.:-

This application is directed against the Order No. 58 dated 24th

June, 2019, passed by the learned Additional District Judge, 7th Court at
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Barasat, North-24 Parganas, in connection with Misc. Case No. 65 of 2016

(Act VIII).

2. The petitioner filed an application under Section 25 of the Guardians

and SectionWards Act, 1890 (herein after referred to as the “said Act”) for getting

the custody of his minor child before the learned District Judge, Barasat,

North 24-Parganas. The petitioner also filed another application under

Section 12 of the said Act for availing interim relief pending of the case on

19th March, 2016. The opposite party appeared in the said case and filed

written objection against the application under Section 25 of the

Guardians and SectionWards Act, 1890, and the said case was subsequently

transferred to the Court of the learned Additional District Judge, 7th Court

at Barasat, for disposal. Subsequently, on 11th January, 2017, issues

were framed and the case was posted on 10th April, 2017 for final hearing.

On 13th April, 2017, the petitioner filed his examination-in-chief by

affidavit and at that date the examination-in-chief was only tendered and

the case was posted again on 5th July, 2017 for further evidence. On 5th

July, 2017, the petitioner filed an application for fixing another date for

hearing on the point of admissibility / exhibit of the documents being

marked as Exhibit – “X” to “X-42”. On 24th June, 2019, the learned

Additional District Judge, 7th Court, Barasat, has been pleased to reject

the application dated 5th July, 2017 by the order impugned.
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3. Being aggrieved, the petitioner has preferred this application.

4. Now, the question is whether the impugned order should be

sustained?

5. Having heard the learned advocate appearing for the parties and on

going through the materials on record, I find that it is admitted position

that the parties to the case are husband and wife. It is also an admitted

position that in the wedlock, a child was born to them and the child is now

six years old. It is also an admitted position that the child is now living

under the custody of the opposite party. It is also an admitted position that

the petitioner tendered medical prescriptions before the Court.

6. Mr. Ghosh, learned advocate for the petitioner contended that

learned Court below committed wrong in passing the impugned order. He

further contended that the learned Court below ought to have find out that

whether such documents are relevant or not in regard to the pleadings of

the petitioner herein. He further contended that learned Court below has

committed wrong by observing that if admission of medical prescriptions

take place and marked as exhibits, the scope of cross-examination stands

completely negated and that would tantamount to taking away the

valuable rights of the opposite party which has the prospect of causing

prejudice to one of the parties to the lis. He further submitted that the
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learned Court below should have hold that marking of documents cannot

be confused with probative value of the same and mere marking of any

documents as exhibit does not ipso facto be considered as proof of the

same. He further contended that learned Court below ought to have

considered that the marking of any document is an administrative work

and the marking of documents is different from probative value of the

same which only can be considered subject to proof of the documents as

observed by the Hon’ble Apex Court in the case of SectionBipin Shantilal

Panchal v. State of Gujarat reported in AIR 2001 SC 1158 and the

same is squarely valuable in this case too.

7. Mr. Mondal, learned advocate for the wife/opposite party contended

that learned Court below has rightly passed the order impugned and it

does not call for any interference. In support of his argument he has relied

upon the decision reported in (2008) 3 WBLR (Cal) 717.

8. Upon due consideration of the material on behalf of both the parties,

the learned Additional District Judge observed that :-

“If admission of the medical prescriptions take place and
marked as Exhibits, thence, the scope of cross-examination
stands completely negated and that would tantamount to taking
away valuable rights of the respondent, which has the prospect

of causing prejudice to one of the parties to the lis. All such
documents sought to be exhibited being medical documents,
and the cross-examination of the author of such document
being vital to the case, for either of the parties, the ratio as laid
down in the case of Bipin Shantilal Panchal, this Court is
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constrained to observe, is not applicable. The scope of cross-
examination of the authors of these medical prescriptions,
notwithstanding the respondents not raising the bogey of the
said documents, sought to be exhibited and marked in evidence,
as fraudulent or concocted, is of vital importance, and, if the
same are admitted in evidence, and the petitioner does not call
for those doctors, who issued such prescriptions, the scope of
reliance on such documents will automatically be negated, if the
ratio as laid down in the case of Bipin Shantilal Panchal, is to
be reckoned with. Hence, for preventing travesty of justice, the
formal proof of such documents, all such documents not being
public documents, cannot be dispensed with and the authors of
such prescriptions are required to be called for to prove such
documents, and the scope of cross-examination has to be
afforded to the respondents”.

9. The reason given by the learned Additional District Judge, 7th Court

at Barasat, in rejecting the prayer made by the petitioner is fully right and

legal and should be sustained. Our Hon’ble High Court has observed in a

case reported in IV (2005) ACC 432 (SectionNational Insurance Co. Ltd. and

Ors. vs. Sudhir Bhuiya) that:-

“admission of evidence- whether disablement certificate,
discharge certificate and medical bill be public documents to
be used as exhibits without proving them in accordance with
SectionEvidence Act – if Tribunal decides to rely upon opinion of any
person for purpose of awarding compensation, person who
will be forced to pay amount must get opportunity to cross
examine author of such opinion – held, Tribunal rightly refused
to admit disablement certificate unless same be proved in
accordance with provisions of SectionEvidence Act.”

10. In another case reported in (2011) 1 Supreme Court Cases 343

(SectionRaj Kumar vs. Ajay Kumar and another), Hon’ble Apex Court observed

that :-

“The Tribunal may invariably make it a point to require the
evidence of the doctor who treated the injured or who assessed
the permanent disability. Mere production of a disability
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certificate or discharge certificate will not be proof of the extent
of disability stated therein unless the doctor who treated the
claimant or who medically examined and assessed the extent of
disability of the claimant, is tendered for cross-examination with
reference to the certificate.”

11. In another case reported in (2004) 7 Supreme Court Cases 107
(SectionDayamathi Bai (Smt) v. K.M. Shaffi)) Hon’ble Apex Court observed
that:-

“…..the objections 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.”

12. In another case reported in (2008) 3 WBLR (Cal) 717 (SectionKuntal
Kundu v. National Insurance Company Limited Anr.), our Hon’ble
High observed that:-

” ……even if we hold that the documents were marked as
Exhibits not on consent but on the formal proof being dispensed
with, the Insurance Company was free to cross-examine the
appellant on the question of the veracity of the contents thereof
or even could lead evidence of rebuttal. However, having failed
to take any of those steps at the trial, the Insurance Company
now cannot contend before the Appellate Court that the contents
of those documents were not proved. If such objection was
raised at the trial, the appellant could even examine the Doctor
who issued the certificate so that he could face the cross-
examination of the Insurance Company.”

13. Under these facts and circumstances, I hold that by merely

producing the medical prescriptions of the persons, the veracity of the

contents of the said medical opinions made in the said prescriptions

cannot be proved. The author of the said medical prescriptions must
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depose before the Court in support of the contents and should face cross-

examination of the opponent; otherwise such medical prescriptions can be

taken into consideration merely for the purpose of showing that such a

certificate was issued, once its genuineness is proved. But whether the

contents of the medical prescriptions are correct or not, such facts cannot

go into evidence unless the author of the medical prescriptions deposes

before the Court and faces for cross-examination. The contents of the

medical prescriptions without examining the author are worst pieces of

hearsay evidence.

14. Under these facts and circumstances, and on consideration of the

entire material on record, I am of the opinion that order of the learned

Court below does not call for any interference of this Court.

15. The revisional application, thus, fails and the same is dismissed.

16. There will be no order as to costs.

17. Urgent Photostat certified copy of this order, if applied for, be given

to the parties on priority basis.

(Manojit Mandal, J.)

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