Research › Search › Judgment

Andhra High Court · body

2010 DIGILAW 219 (AP)

K. v. K. Amarnath VS P. N. Eswaraiah (died)

2010-03-19

G.ROHINI

body2010
ORDER This revision petition is directed against the order dated 18.06.2008 in I.A.No.132 of 2008 in O.S. No.11 of 2000 on the file of the Court of the Senior Civil Judge, Hindupur. The revision petitioner is the plaintiff. The suit is filed for partition of the suit schedule properties. While the suit was coming up for trial, the plaintiff filed I.A.No.132 of 2008 with a prayer to receive a copy of the partition list dated 01.07.1996 and to mark the same as an exhibit on behalf of the plaintiff as secondary evidence. The 3rd defendant/third respondent herein opposed the same and the Court below by order dated 18.06.2008 dismissed the application. Aggrieved by the same, the present revision petition is filed by the plaintiff. 2. I have heard the learned counsel for both the parties and perused the material available on record. 3. It is to be noticed that the suit is of the year 2000. Though in the plaint initially filed there was no reference to the partition list dated 01.07.1996, the plaint was amended by order dated 17.06.2005 in I.A.No.96 of 2005 inserting a specific plea with regard to the document dated 01.07.1996 and also stating that the original was with the 3rd defendant. Subsequently, the plaintiff filed I.A.No.343 of 2005 seeking a direction to the 3rd defendant to produce the said original document dated 01.07.1996. However, in view of the plea taken by the 3,d defendant that the document was not in his possession, the said 1.A.No.343 of 2005 was closed by order dated 16.11.2005. 4. However, the defendants 5 and 6 filed before this Court separate counter affidavits stating that the original document dated 01.07.1996 was in the possession of the 3rd defendant. In the light of the said affidavits the learned counsel for the petitioner submitted that the order under revision cannot be sustained. 5. On the other hand, the learned counsel appearing for the respondents vehemently contended that in view of Section 65 of the Evidence Act, 1872 (for short the Act), secondary evidence can be taken by the Court only when the original is shown to be in possession or power of the person against whom the document is sought to be proved. On the other hand, the learned counsel appearing for the respondents vehemently contended that in view of Section 65 of the Evidence Act, 1872 (for short the Act), secondary evidence can be taken by the Court only when the original is shown to be in possession or power of the person against whom the document is sought to be proved. It is further contended that as the 3rd defendant denied the custody of the document in question and moreover, it was also pleaded in the counter that the said document was a forged and fabricated document, the Court below had rightly declined to receive the document in secondary evidence. In support of his submissions, the learned counsel for the respondents relied upon a decision of the Supreme Court in J. Yashoda v. K. Shobha Rani (1) 2007(3) SCJ 825 = 2007 (5) ALT 6.2 (DNSC). 6. Section 64 of the Act provides that all the documents must be proved by primary evidence. However, under Section 65 of the Act, secondary evidence may be given of the existence, condition or contents of a document under certain circumstances specified therein. 7. In J. Yashodas case (1 supra), while holding that the conditions laid down in Section 65 must be fulfilled before secondary evidence can be admitted, it was added by the Supreme Court that secondary evidence of the contents of documents cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in Section 65 of the Evidence Act, 1872. 8. In the instant case, though the plaintiff claimed that the original document was in the possession of the 3rd defendant, the said plea was categorically denied by the 3rd defendant. Though there was no notice as provided under Section 66 of the Evidence Act, 1872 the plaintiff filed I.A.No.343 of 2005 for direction to produce the said document and the 3rd defendant filed counter denying the plaintiffs plea that the document was in his possession. Having recorded the same, I.A.No.343 of 2005 was closed and the said order became final. It was also specifically pleaded by the yd defendant that the document in question was a fabricated document. 9. Having recorded the same, I.A.No.343 of 2005 was closed and the said order became final. It was also specifically pleaded by the yd defendant that the document in question was a fabricated document. 9. It is also relevant to notice that the respondents 5 & 6 herein (defendants 5 and 6) who gave affidavits before this Court did not file any counters before the lower Court. In the circumstances, the court below having recorded a finding that the document was not in the custody of 3rd defendant had rightly dismissed I.A.No.132 of 2008. 10. The order under revision in my considered opinion did not suffer from any error of fact or law and accordingly, the Civil Revision Petition is dismissed. No costs.