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2008 DIGILAW 255 (CAL)

Haradhan Dutta v. Babul Chandra

2008-03-03

PRASENJIT MANDAL

body2008
Judgment :- (1). THIS is an application under Section 115 of the Code of Civil Procedure and this is directed against the judgment and order dated 14.9.2001 passed by the learned Additional District Judge, Kandi, District Mursidabad in Civil revision Case No. 7 of 98/46 of 97 whereby he has confirmed the order No. 65 dated 2.7.1997 passed by the learned Munsif, Second Court, Kandi, District mursidabad in O.S. Case No. 65 of 1987 rejecting thereby an application dated 17.5.1997 for marking a document as an exhibit on behalf of the plaintiff. (2). THE fact of the case in short is that the plaintiff/petitioner filed the suit bearing O.S. No. 65 of 1987 for specific performance of a contract. The opposite parties were contesting that suit and they contended that there was no such agreement for specific performance of a contract. The suit was at the stage of recording evidence when the plaintiff/petitioner filed one damaged and torn paper purported to be the agreement for specific performance of a contract. He adduced evidence. Thereafter he filed an application for marking the xerox copy of the same as an exhibit, which was rejected by the learned munsif. Being aggrieved the plaintiff/petitioner preferred a civil revision which was also dismissed by the learned Additional District Judge, Kandi, Mursidabad by the impugned order. So the plaintiff/petitioner has preferred the present application under Section 115 of the Code of Civil Procedure. (3). HAVING considered the submissions of the learned Advocate for the parties and on going through the record, I find that the present revisional application is not at all maintainable because previously the plaintiff/petitioner filed the revisional application under Section 115a of the Code of Civil procedure before the District Judge, Mursidabad. Such an application under section 115 of the Code of Civil Procedure is not at all permissible before the honble High Court, Calcutta in view of the Section 115a of the Code of Civil procedure. For that reason itself the plaintiff/petitioner is not entitled to get any relief at all. His application in the present form before the Honble High court is not maintainable at all. In the circumstances, I hold that the present application under Section 115 of the Code of Civil Procedure is not maintainable at all. It should be dismissed accordingly. (4). For that reason itself the plaintiff/petitioner is not entitled to get any relief at all. His application in the present form before the Honble High court is not maintainable at all. In the circumstances, I hold that the present application under Section 115 of the Code of Civil Procedure is not maintainable at all. It should be dismissed accordingly. (4). AS regards the merit of the case, from the record I find that at the time of filing of the suit the plaintiff/petitioner did not comply with the provisions of Order 7 Rule 14 of the Code of Civil Procedure that is submitting the vital document at the time of filing of the suit. From the record, it appears that the purported deed of agreement is dated 09.12.1973 and the defendants/opposite parties have categorically denied the existence of any such document in their written statement. The plaintiff/petitioner did not produce such deed before the Court at all; but at the time of recording evidence he produced one xerox copy of the same only on 24. 5. 1999 though the suit was filed on 2.3.1987. One paper was produced before the Court purported to be an agreement for sale but as per record this is so damaged and in torn condition that it cannot be accepted at all. The learned Additional District Judge has also observed that if the document was alleged to have been kept in the tin box as claimed by the plaintiff/petitioner damage to such extent of the so-called document would not have occurred at all. (5). THE learned Advocate for the plaintiff/petitioner has relied upon the rulings AIR 1976 SC 461 , 58 Cal WN 533 and 87 Cal WN 211 in support of the contention that the xerox copy which was prepared in a mechanical process and which ensures accuracy can be marked exhibit in the circumstances. So far as the ruling AIR 1976 SC 461 is concerned, I find that this ruling does not at all deal with the matter of adducing secondary evidence but in paragraph 19 the Apex Court has dealt with weighing evidence adduced by both the parties. But this Is not the actual situation in the instant case. So far as the ruling AIR 1976 SC 461 is concerned, I find that this ruling does not at all deal with the matter of adducing secondary evidence but in paragraph 19 the Apex Court has dealt with weighing evidence adduced by both the parties. But this Is not the actual situation in the instant case. Here the question is whether the xerox copy as produced by the plaintiff/petitioner after 12 years from the date of filing of the suit can be accepted as secondary evidence in absence of the original. Therefore, this ruling is not applicable at all. (6). THE ruling 58 Cal WN 533 lays down the principle that if it is proved that copies had been made from the original document without any proof that they had been compared with the original, they will be accepted as secondary evidence but everything depends upon the circumstances and on the facts proved. In the instant case, the condition of the document of the original is stated to be such that no comparison can be held at present and though the document was alleged to have been executed in the year 1973, the copy of the same has been produced in 1999 only and the so-called original leaves no scope of comparison. Moreover in that case, the original was in the possession of the defendant, the plaintiff/petitioner asked for production of the same and at the time of filing of the suit the plaintiff/petitioner filed a copy of the document and the plaint was duly verified. So the situation is not similar. Therefore, this ruling is not also applicable in the instant case. (7). THE ruling 87 Cal WN 211 lays down that the photostat copy of a document is not admissible as secondary evidence as the original has not been produced nor is there evidence of any of the persons who have seen the original from which the photostat copy has been made. That was an appeal from a decree of dismissal of the suit for eviction. So there was a scope of appreciation of the evidence on record. In this revisional matter there is no scope of re-appreciation of the evidence adduced by the parties. The plaintiff/ petitioner has failed to explain why he was prevented from producing the original deed of agreement before the Court at the time of filing of the suit or immediately thereafter. In this revisional matter there is no scope of re-appreciation of the evidence adduced by the parties. The plaintiff/ petitioner has failed to explain why he was prevented from producing the original deed of agreement before the Court at the time of filing of the suit or immediately thereafter. As per record, the plaintiff/petitioner was not able to produce any person who had actually seen the preparation of the xerox copy from the original one. Therefore, the xerox copy so produced does not ensure the accuracy of the original. In consideration of all such facts and circumstances, I hold that this ruling 87 Cal WN 211 does not favour the plaintiff/petitioner at all. (8). IN the result, I hold that the plaintiff /petitioner cannot get any relief at all. The learned Additional District Judge has rightly dismissed the civil revision. (9). AS a result, the present revisional application fails to succeed and it is dismissed. (10). CONSIDERING the circumstances, there will be no order as to costs. (11). INTERIM order is hereby vacated. (12). THE suit was at the stage of recording evidence. The learned Civil judge (Junior Division) is directed to dispose of the suit within three months from the date of communication of the order. He shall take up day-to-day hearing of the matter. He shall not grant unnecessary adjournment save and except where the situation is beyond the control of the parties. (13). BOTH parties are directed to appear before the trial Court on 10.3.2008 at 10. 00 A. M. for receiving further directions from the trial Court.