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2004 DIGILAW 369 (AP)

Trilokchand Jain v. Gurrapu Rajamouli

2004-03-24

L.NARASIMHA REDDY

body2004
L. NARASIMHA REDDY, J. ( 1 ) THE first respondent filed o. S. No. 151 of 1996 in the Court of Senior civil Judge, Mahabubabad against the petitioner (Defendant No. 1) and the second respondent (Defendant No. 2) for the relief of setting aside (obviously cancellation) the decree in O. S. No. 37 of 1982 passed by the Principal Subordinate judge, Warangal or in the alternative to pass a decree for a sum of Rs. 1,25,000. 00 with 25% interest. He has also prayed for a decree for permanent injunction restraining the petitioner herein from executing a registered sale deed in favour of the 2nd respondent herein in respect of the said a schedule property and certain other ancillary reliefs. ( 2 ) THE first respondent filed IA no. 140 of 2000 under Section-65 of the indian Evidence Act (hereinafter referred to as the Act) to receive the xerox copy of an agreement of sale, dated 30. 11. 1979 as secondary evidence. The petitioner opposed the same. Through its order, dated 26. 6. 2000, the Trial Court allowed the I. A. Hence this revision. ( 3 ) SRI B. V. S. Sivarama Prasad, learned Counsel for the petitioner submits that the first respondent on an earlier occasion filed LA. Nos. 10 and 11 of 2000 to adduce the very agreement as secondary evidence and the applications were rejected by the trial Court through order, dated 1. 2. 2000. According to him, the order in the said i. As. operates as res judicata against the present application. He also contends that the xerox copy of an agreement of sale cannot be received in evidence. Learned counsel further contends that even otherwise the first respondent did not comply with the requirements of Section-65 of the Act, to enable the Trial Court to receive the xerox copy of agreement of sale as secondary evidence, and that the order of the Trial Court cannot be sustained. ( 4 ) SRI N. Rama Rao, learned Counsel for the first respondent on the other hand submits that the Trial Court rejected LA. Nos. 10 and 11 of 2000, insofar as they related to the present documents, only on the ground that necessary steps under section-65 of the Act were not taken and the orders cannot be treated as a final pronouncement on the matter. Nos. 10 and 11 of 2000, insofar as they related to the present documents, only on the ground that necessary steps under section-65 of the Act were not taken and the orders cannot be treated as a final pronouncement on the matter. He contends that xerox copy of a document can be received as secondary evidence and that his client has taken steps requiring the person who is in possession of the original of the agreement to produce the document, and only when the possessor of the document did not comply with the request, that the present application has been filed. ( 5 ) BOTH the Counsel relied upon the judgments rendered by this Court as well as the Hon ble Supreme Court in support of their respective contentions. ( 6 ) DURING the course of evidence, the first respondent sought It) rely upon the xerox copy of an agreement of sale deed, dated 30. 11. 1979. According to him, the original of that document is in possession of one Govind Narayana Ladda, and despite his efforts he could not persuade him to produce the original agreement into the Court. He filed LA. No. 11 of 2000 in that suit under Order XIII, Rule 2 of C. P. C. requesting the Trial Court to receive three documents in evidence. Out of the three documents, two were certified copies and the third one was the xerox copy of the agreement of sale deed, dated 30. 11. 1979. In that view of the matter, he filed LA. No. 10 of 2000 to receive the xerox copy of the agreement of sale as secondary evidence under Section 65 of the Act. The trial Court disposed of both the applications on 1. 2. 2000 through two separate orders. ( 7 ) IN LA. No. 10 of 2000, it took a view that the first respondent has not taken any steps to procure the original of the agreement of sale and he had only expressed apprehension that the person in custody of the document may not part with it. In that view of the matter, the Trial court dismissed the IA. , obviously because it was pre-mature. LA. No. 11 of 2000, in turn was partly allowed receiving two documents, which are certified copies. In that view of the matter, the Trial court dismissed the IA. , obviously because it was pre-mature. LA. No. 11 of 2000, in turn was partly allowed receiving two documents, which are certified copies. So far as the xerox copy of agreement of sale is concerned, it refused to receive it, in view of the dismissal of LA. No. 10 of 2000 on the ground that the original is very much available. ( 8 ) THE first respondent got issued a notice to Govind Narayana Ladda to produce the original of the agreement of sale, dated 30. 11. 1979. On receipt of the 278 same, Mr. Ladda appeared before the Court and filed a memo to the effect that the original of the agreement of sale referred to in the notice is not available with him and that he does not know anything about the case. In view of this development, the first respondent filed LA. No. 140 of 2000 under Section 65 of the Act to receive the xerox copy of the agreement of sale, as secondary evidence. The Trial Court took the view that the step taken by the first respondent requiring Mr. Ladda to produce the document constitutes compliance with section 65 of the Act, and in that view of the matter, the xerox copy can be received as secondary evidence. ( 9 ) THE first contention of the learned counsel for the petitioner that the order passed by the Trial Court in LA. Nos. 10 and 11 of 2000 operates as res judicata cannot be accepted. As observed earlier, the Trial Court did not make any final pronouncement on the admissibility of the secondary evidence. The refusal to receive the secondary evidence was mainly on the ground that the petitioner did not take the steps contemplated under Section 65 of the Act. The applications were rejected as pre-mature. Unless there is a final pronouncement on merits, the order passed therein cannot operate as res judicata. ( 10 ) THE second contention of the learned Counsel for the petitioner is that the xerox copies of documents cannot be received in evidence at all. The proposition in its absolute form is rather too difficult to be accepted. It is only when the xerox copy is sought to be adduced in evidence as primary evidence, that it becomes inadmissible. The proposition in its absolute form is rather too difficult to be accepted. It is only when the xerox copy is sought to be adduced in evidence as primary evidence, that it becomes inadmissible. This Court held so in S. V. Subba Rao v. P. V. V. Jagannadha Rao, reported in 1995 (2) ALT 651 . However, totally different considerations ensue where the xerox copies are sought to be adduced as secondary evidence. Under Section 63 of the Act one of the categories of secondary evidence is a mechanical reproduction of the original. There cannot be a better mechanical reproduction of original of a document, than a xerox copy, at present. As secondary evidence, xerox copy can certainly be received subject to the satisfaction of conditions laid down under Section 65 of the Act. Therefore, the rule of inadmissibility of xerox copies as primary evidence cannot be extended to their admissibility of secondary evidence. ( 11 ) THIRD, but, important contention of the learned Counsel for the petitioner is that acceptance of the secondary evidence must be proceeded by the compliance with the conditions laid down under Section 65 of the Act. ( 12 ) SECTION 65 of the Act lays down the circumstances under which secondary evidence can be adduced; as regards the conditions or contents of a document. ( 12 ) SECTION 65 of the Act lays down the circumstances under which secondary evidence can be adduced; as regards the conditions or contents of a document. It is beneficial to reproduce the same"section 65: Cases in which secondary evidence relating to documents may be given : Secondary evidence may be given of the existence, condition or contents of a document in the following cases (a) 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, and when, after the notice mentioned in Section 66, such person does not produce it; (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his 279 own default or neglect, produce it in reasonable time; (d) when the original is of such a nature as not to be easily movable; (e) when the original is a public document within the meaning of Section 74; (f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India, to be given in evidence; (g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in court, and the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents. " ( 13 ) THE first respondent got issued a notice to 6ne Mr. Ladda requiring him to produce the document. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents. " ( 13 ) THE first respondent got issued a notice to 6ne Mr. Ladda requiring him to produce the document. The Trial Court proceeded under assumption that issuing of such notice and a non-satisfactory response to it constitutes compliance with clause (a) of Section 65 of the Act. The Trial Court did not take into account, the fact that the petitioner did not lead any independent evidence to establish that the document is in possession of Mr. Ladda. He was neither a party to the suit, nor was under any obligation to produce the document. Therefore, the issuance of notice by the petitioner was of no consequence. It is in such cases, that the circumstance provided for in clause (b) gets attracted. The person intending to adduce secondary evidence has to prove to the satisfaction of the Court, the existence, condition, or contents of the original. For this purpose mere assertion is not sufficient. Independent evidence has to be adduced to show that the document in its original form existed, as to its contents, and obviously, the availability of it with a particular individual. It is only then, that the secondary evidence of such a document can be received. Inasmuch as the first respondent did not undertake such an exercise, there did not exist valid basis for the Trial Court to receive xerox copy, as secondary evidence. Reference, in this context, may be made to the judgment of this Court in J. Sathya Narayana v. J. Lakshmidevamma, 2002 (1) An. WR 630 (A. P ). ( 14 ) FOR the above said reasons, the c. R. P. is allowed and the order under revision is set aside. It is however left open to the first respondent to establish the existence of the original of the agreement of sale deed, dated 30. 11. 1979 with any particular individual, and its contents. If the person with whom the original is proved to be existing does not produce the same when demanded, the secondary evidence of the agreement of sale can be permitted. ( 15 ) THE suit is of the year 1996. It was burdened with one application or the other and its disposal was delayed. If the person with whom the original is proved to be existing does not produce the same when demanded, the secondary evidence of the agreement of sale can be permitted. ( 15 ) THE suit is of the year 1996. It was burdened with one application or the other and its disposal was delayed. It is hoped that the Trial Court will endeavour to dispose of the suit as early as possible and not later than four months from the date of receipt of a copy of this order.