Research › Search › Judgment

Madras High Court · body

2002 DIGILAW 1159 (MAD)

S. Sathyamoorthy v. S. Gurumoorthy

2002-09-30

K.GNANAPRAKASAM

body2002
Judgment :- 1.The revision petitioner is the 1st defendant in OS.No.39 of 1999, on the file of the Subordinate Judge, Tiruvannamalai. 2.The petitioner has filed an application under Order 13 Rule 2 CPC for reception of certain documents and the same was disallowed by order dated 11.10.2001. Aggrieved by the same, the 1st defendant has preferred this civil revision petition. 3.The respondent/plaintiff filed the suit for partition, claiming 9/48th share in the suit properties and for other reliefs. 4.The 1st defendant alone has filed a written statement, wherein, he has stated that the suit properties are the ancestral properties of Subramaniya Iyer and the mother of the parties died on 6.10.1996, leaving behind her, the plaintiff and the defendants. It is further stated that the defendant completely repaired the entire building, by spending about Rs.3,00,000/- and he was also writing letters to the plaintiff about the progress of the repairs and was also notifying the amounts that were spent by him through letters. It is further stated that those letters are with the plaintiff and if he produces them, they will reveal how hard it was for the 1st defendant to repair that old building and that when there was a meeting of all the parties in the end of 1988, the defendant produced all the vouchers and receipts for the perusal of the plaintiff and others and the defendant was also maintaining a day-to-day account regarding the repairs and all the parties concerned have also perused the same. It is further stated that they have agreed, go through the accounts and day-to-day accounts maintained by the defendant to fix the shares of amount by each parties to be paid to this defendant and the plaintiff took away the vouchers, receipts and the account book with him to Mumbai and all of them are only with him. 5.As the plaintiff has not come forward to file those documents and the originals are with the plaintiff, the defendant has filed an application for reception of xerox copies of those documents. The defendant, in the affidavit filed in support of the petition, has stated that the original receipts are with the plaintiff and therefore, he is filing xerox copies and sought the permission of the court to receive and mark the same. The defendant, in the affidavit filed in support of the petition, has stated that the original receipts are with the plaintiff and therefore, he is filing xerox copies and sought the permission of the court to receive and mark the same. 6.The plaintiff filed a counter, wherein, he has stated that the documents sought to be filed by the 1st defendant are inadmissible in evidence and they are not genuine documents. Photocopies of the bills cannot be admitted as secondary evidence and there is no proof that the originals are with the plaintiff. 7.The court below was of the view that as the plaintiff denied the possession of the original documents, the xerox copies filed by the petitioner/1st defendant are inadmissible, as the same could not be compared with the originals. Aggrieved by the same, the 1st defendant has preferred this civil revision petition. 8.The learned advocate for the revision petitioner has submitted that in the written statement itself, he made it very clear that the original documents were placed for the perusal of all the parties concerned, when all of them met at Madras in the end of 1988 in a family function and all of them have seen those original documents and as a matter of fact, they have also agreed that they would verify and settle the amounts. It is further submitted that the plaintiff had taken all the originals of the vouchers, receipts and account books for verification and only in the said circumstances, the original documents are not available and the petitioner is entitled to let in secondary evidence. In the absence of the originals, the petitioner is entitled to let in secondary evidence i.e. xerox copies of the originals, as contemplated under Section 63(2) of the Evidence Act. 9.He also relied upon Section 65(a) of the Evidence Act, which states, "when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it". It is further submitted that the originals are with the plaintiff and the same is also pointed out in the written statement. It is further submitted that the originals are with the plaintiff and the same is also pointed out in the written statement. Even then the petitioner is entitled to let in secondary evidence, only after issuing the notice as contemplated under Section 66 of the Evidence Act, which states, "secondary evidence of the contents of the documents referred to in Section 65(a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party, in whose possession or power the document is or to his attorney or pleader, such notice to produce it as is prescribed by law and if no notice is prescribed by law, then such notice as the court considers reasonable under the circumstances of the case". 10.But, however, the learned advocate for the revision petitioner would further contend that such a notice is not necessary, by relying upon the proviso to Section 66(2), which states, "Provided that such a notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the court thinks fit to dispense with it:- (1) ...................., (2) when, from the nature of the case, the adverse party must know that he will be required to produce it." 11.It is the contention of the learned advocate for the revision petitioner that the plaintiff was already put on notice, and the defendant has specifically averred that the original documents relied upon by him are with them and that therefore, he had full knowledge about the intent and purport of the defendant to mark the xerox copies and therefore, a separate notice as contemplated under Section 66 is not necessary. In view of the fact that the defendant made a specific plea that the originals are with the plaintiff, he had full knowledge of the factum of the defence raised by the defendant and in the said circumstances, it could be construed that the plaintiff had full knowledge about the same and therefore, the notice as required Section 66 may not be required. 12.A similar case arose in the case of D.Sarasu Vs. 12.A similar case arose in the case of D.Sarasu Vs. Jayalakshmi and 2 others (2001-2-LW-255), where the learned single judge of this Court, (P.Sathasivam, J), has take n into consideration about the marking xerox copies of the partition list, which has been stated in the plaint itself and has come to the conclusion that in the absence of the same, when it was not produced from a person, in whose custody the said document is available, marking of xerox copies of the said document is permissible under law, as a secondary evidence." 13.It is well settled law that mere reception and marking of the documents would not amount to proof of the documents, irrespective of the fact that the petitioner/defendant has brought in and marking the documents would not absolve him from proving those documents. A party, who relies upon the documents, bringing the documents into the court and marking the same is also further burden to prove the same and therefore, it is always open to the respondent/plaintiff to challenge the genuineness, truth and validity of those documents. 14.In view of the observations made above, I am of the view that the documents filed by the petitioner/defendant has got to be received in evidence, subject to proof and relevancy and the respondent/plaintiff is always at liberty to question the same. 15.In the result, the civil revision petition is allowed. No costs. Consequently, connected CMP is closed.