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2009 DIGILAW 202 (MAD)

Mani Gounder & Others v. R. M. Kuppan

2009-01-20

M.VENUGOPAL

body2009
Judgment :- The revision petitioners/respondents/defendants have filed this civil revision petition as against the order dated 30.01.2008 in I.A.No.126 of 2008 in O.S.No.6 of 2001 passed by the District Munsif Court, Madurantakam in allowing the application filed by the respondent/petitioner/ plaintiff praying for permission to file the xerox copy of the registered Will available with him dated 04.03.1978 in favour of Sambandam and to grant permission to mark the same etc. 2. The trial Court, while passing orders in I.A.No.126 of 2008, has inter alia observed that in order to prove the case of the respondent/petitioner/plaintiff since the original Will has not been filed and that in the absence of the same, the xerox copy of the said Will can be taken into account as secondary evidence and in that view of the matter, has granted permission to recall P.W.1 and to mark the document and accordingly, allowed the application without costs. 3. The learned counsel for the revision petitioners contends that the order of the trial Court in allowing the I.A.No.206 of 2008 is liable to be set aside in law because of the fact that the ingredients of Section 63 of the Indian Evidence Act has not been borne in mind by the trial Court in a proper perspective and that copies made from or compared with the original alone can be treated as secondary evidence and further the Will being a document, has to be necessarily proved by means of primary evidence and that the trial Court can receive and mark xerox copy of the Will only when the original Will is produced and these facts have not been taken note of by the trial Court and therefore, it has resulted in miscarriage of justice and this needs to be rectified by this Court by means of allowing the civil revision petition. 4. Per contra, the learned counsel for the respondent/ /petitioner/plaintiff submits that the respondent/petitioner /plaintiff has already filed the certified copy of the Will in the case and at a time when the document is sought to be marked then an objection has been raised by the revision petitioners to the effect that when the original Will is available then the certified copy cannot be marked etc. Whenever any objection is raised in regard to the admissibility of any document in evidence, it is always open to the Court to look in the manner of objection at the final stage of the case and therefore, this Court opines that there is no impediment for the trial Court to reopen the side of respondent/plaintiff and to recall P.W.1 in regard to the marking of the document in issue. 5. On a careful consideration of respective contentions, this Court is of the considered view that the document in question can be received by the trial Court subject to proof and relevancy and in that view of the matter, it is always open to the revision petitioners/respondents/defendants to raise such form of objection which is known to law before the trial Court and they can seek appropriate remedy thereto and with these observations, the Civil Revision Petition is disposed of, leaving the parties to bear their own costs. 6. Before parting with the case, this Court issues a direction to the trial Court to dispose of the main case within a period of three months from the date of receipt of copy of this order. The trial Court is directed to provide adequate opportunity to both sides in regard to the completion of proceedings and the parties are directed to lend their helping hand in this regard. Connected miscellaneous petition is closed.