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2014 DIGILAW 1160 (CAL)

Akhtar Hossain v. Md. Nasiruddin

2014-12-09

SUBRATA TALUKDAR

body2014
Judgment Subrata Talukdar, J. In this application under Article 227 of the Constitution of India the petitioner has challenged the order impugned dated 3rd April, 2008 and 31st July, 2008 passed by the Ld. Civil Court (Senior Division) at Sealdah in Title Suit No. 118 of 1998. The brief facts of the case are as follows:- a) That the predecessor-in-interest of the present petitioners filed Title Suit No. 118 of 1998 as plaintiff before the Ld. Civil Court (Senior Division) at Sealdah for partition and permanent injunction restraining the defendants from dispossessing the plaintiff from her lawful possession over the suit property. b) That the subject matter of the suit is a thika property situated at premises no.15/4/50, 5/H/5 and B/5/H/6/1, formerly being premises no. 15, Bibi Bagan Lane. The said suit property is more particularly described in Schedules A to C of the plaint. c) After the demise of her mother, one Ziana Bibi who was the full owner of the suit property, the predecessor-in-interest of the present petitioners, demanded her 1/7th share in Schedule A to Schedule C properties, including her share of the accounts. The defendants having failed to take any steps to partition the suit properties and render accounts, the plaintiff/ predecessor-in-interest of the present petitioners filed the suit. d) That the defendants/present Opposite Parties resisted the suit by filing written statement. The defence taken by the defendants/Opposite Parties in the said written statement is that the suit property stood mutually partitioned at the intervention of the legal panchayat. Such partition took place as per the provisions of Mohammedan Law. The parties are enjoying their respective shares of the suit property on the basis of such amicable partition and collecting rents from their respective tenants. e) In connection with the said suit the petitioners filed an application before the Ld. Trial court for acceptance of xerox copy of original registered sale deed dated 10th January, 1947. It was contended on behalf of the petitioners that the Opposite Parties are withholding the original documents of the Schedule A to C suit properties. It was also contended on behalf of the petitioners that in the absence of the original documents pertaining to Schedules A to C suit properties, it will be difficult for the plaintiffs/petitioners to establish their case in the instant suit. It was also contended on behalf of the petitioners that in the absence of the original documents pertaining to Schedules A to C suit properties, it will be difficult for the plaintiffs/petitioners to establish their case in the instant suit. With particular reference to the deed dated 10th January, 1947 the petitioners have stated that the certified copy of the original deed could not be obtained by them from the District Registrar, Alipore. Thereafter on two occasions summons were served to the witnesses in the name of the District Registrar, Alipore to send competent persons to produce the relevant columns in connection with the registered sale deed dated 10th January, 1947. However, the relevant volume containing the sale deed could not be produced in Court and no report could be obtained in respect of the same. Shri Taraknath Halder, Ld. Counsel for the petitioners submits that by the order impugned dated 3rd April, 2008 the Ld. Civil Court (Senior Division) at Sealdah erroneously rejected the prayer of the petitioners for acceptance of xerox copy of the said deed dated 10th January, 1947 into evidence on the ground that the xerox copy of the deed is neither a primary nor a secondary evidence. Shri Halder points out that the petitioner also filed an application for service of notice upon the OP1 under Order 11 Rule 14 CPC read with Section 66 of the Evidence Act for production of the original deed of sale dated 10th January, 1947. By the order dated 31st July, 2008 Ld. Civil Court (Senior Division) at Sealdah was pleased to reject the prayer of the petitioners on the ground that the petitioners have failed to satisfy the Court with regard to the possession of the said documents in question by the OP1. Shri Halder has argued that since the Opposite Parties are withholding the original documents in respect of the Schedules A to C suit properties, the Ld. Trial Court ought to have accepted in evidence the xerox copy of the documents supplied by the petitioners. Shri Halder points out that of the Ld. Trial Court failed to notice the fact that the suit is one for partition and the predecessor-in-interest of the petitioners is the daughter of the original owner, Ziana Bibi and is therefore entitled to 1/7th share in the suit property. Shri Halder points out that of the Ld. Trial Court failed to notice the fact that the suit is one for partition and the predecessor-in-interest of the petitioners is the daughter of the original owner, Ziana Bibi and is therefore entitled to 1/7th share in the suit property. Shri Halder has further pointed out that in the absence of primary evidence in the form of the original sale deed dated 10th January, 1947, the Ld. Trial Court committed an error of law in not directing the petitioners to produce the xerox copy of the same deed by the way of secondary evidence. Shri Halder also submits that there is no question of partition through intervention by the panchayat. Such partition is not recognised by law. He draws the attention of this Court to Paragraph 5 of the written statement filed by the defendants/Opposite Parties to show that the defendants have claimed partition through the panchayat which is a nullity in the eyes of law. Shri Halder places before this Court Sections 63, 65(a) and 66 of the Indian Evidence Act which read as follows:-“63. Secondary Evidence -Secondary evidence means and includes. 1. Certified copies given under the provisions hereinafter contained; 2. Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy and copies compared with such copies; 3. Copies made from or compared with the original; 4. Counterparts of documents as against the parties who did not execute them; 5. Oral accounts of the contents of a document given by some person who has himself seen it. 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; 66. Rules as to notice to produce - Secondary evidence of the contents of the documents referred to in Section 65, Clause (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, 1or 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; Provided that such 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. When the document to be proved is itself a notice; 2. When from the nature of the case, the adverse party must know that he will be required to produce it; 3. When it appears or is proved that the adverse party has obtained possession of the original by fraud or force; 4. When the adverse party or his agent has the original in Court; 5. When the adverse party or his agent has admitted the loss of the document; 6. When the person in possession of the document is out of reach of, or not subject to, the process of the Court.” Shri Halder points out that a conjoint reading of the three sections shows that if a document is in the custody of the defendants, the plaintiff is entitled to produce secondary evidence after serving notice to the defendants. Such secondary evidence must be accepted by the Ld. Trial court for the purpose of trial. Shri Halder also points out that at Paragraph 31 of the present CO in compliance with Order 11 Rule 14 CPC read with Section 66 of the Evidence Act, notice has been served on the defendant no. 1 to produce the registered deed of sale dated 10th January, 1947 in respect of the suit premises being no. 5, Bibi Bagan Lane, P.S.- Entally, Kol-15 which has been registered in the office of the Sub-Registrar, Sealdah and entered in Book No.- Volume No. 5, pages 152-155 being no. 63 of the year 1947. 1 to produce the registered deed of sale dated 10th January, 1947 in respect of the suit premises being no. 5, Bibi Bagan Lane, P.S.- Entally, Kol-15 which has been registered in the office of the Sub-Registrar, Sealdah and entered in Book No.- Volume No. 5, pages 152-155 being no. 63 of the year 1947. The said notice clearly mentions that in default of production of the said documents by the defendants on the next date of hearing, the xerox copy shall be filed to be admitted any evidence. Shri Halder submits that there is no reply by the petitioners to the said notice for production of the original documents. In support of his contention, Shri Halder relies upon the decision reported in (2002) 2 CLJ 449 at Paragraph 24. The said decision reads as follows:- “24. I am unable to accept the contention of Shri Chatterjee that photocopy/Xerox copy of a document can be admitted in evidence as primary evidence and I hold that photocopy is not admissible as primary evidence under any provision. In view of the clear language of sub-section (2) of Section 63 of the Indian Evidence Act, 1872, photocopy/Xerox copy is secondary evidence and can never be regarded as primary evidence. In this regard I draw my inspirations from the decisions in the case of (11) Ramesh Verma and Ors. v. Shrimate Ljesh Saxena and Ors. reported in AIR 1998 Madhya Pradesh 46 and (12) Arulmigu Visweswara Swami and Veeraraghava Perumal Temples v. R.V.E. Venkatachala Gounder and Anr. reported in 1996(4) Current Civil Cases 347 (Mad.).” Shri Halder therefore contends that the orders impugned dated 3rd April, 2008 and 31st July, 2008 are required to be set aside and since circumstances exist to show that the document in question is in possession of the defendant no. 1, the Ld. Trial Court ought to have allowed the filing of the xerox copy to be considered as secondary evidence. Shri Halder asserts that in the absence of such permission to adduce secondary evidence, the cause of the plaintiff in the suit maybe rendered infructuous. Heard. Considered the materials on record. The Hon’ble Apex Court in the matter of Kaliya Vs. Trial Court ought to have allowed the filing of the xerox copy to be considered as secondary evidence. Shri Halder asserts that in the absence of such permission to adduce secondary evidence, the cause of the plaintiff in the suit maybe rendered infructuous. Heard. Considered the materials on record. The Hon’ble Apex Court in the matter of Kaliya Vs. State of Madhya Pradesh reported in 2013 (10) SCC 758 considered the scope of adducing secondary evidence relating to a document of which the original has been destroyed or lost, or when the party offering evidence of its contents cannot, produce such dowment within a reasonable time. Paragraphs 13 and 14 of Kaliya’s Case (supra) read as follows:- “13) Section 65(c) of the 1872 Act provides that secondary evidence can be adduced relating to a document 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 own default, or neglect, produce it in reasonable time. The court is obliged to examine the probative value of documents produced in the court or their contents and decide the question of admissibility of a document in secondary evidence. (Vide H. Siddiqui V. A. Ramalingam and Rasiklal Manikchand Dhariwal v. M.S.S. Food Products). However, the secondary evidence of an ordinary document is admissible only and only when the party desirous of admitting it has proved before the court that it was not in his possession or control of it and further, that he has done what could be done to procure the production of its. Thus, the party has to account for the non-production in one of the ways indicated in the section. The party further has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. When the party gives in evidence a certified copy/secondary evidence without proving the circumstances entitling him to give secondary evidence, the opposite party must raise an object at the time of admission. In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage. Further, mere admission of a document in evidence does not amount to its proof. In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage. Further, mere admission of a document in evidence does not amount to its proof. Nor mere marking of exhibit on a document does not dispense with its proof, which is otherwise required to be done in accordance with law. (Vide Roman Catholic Mission v. State of Madras, Marwari Kumhar v. Bhagwanpuri Guru Ganeshpuri, R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple, Dayamathi Bai v. K.M. Shaffi and LIC v. Ram Pal Singh Bisen.) 14) In M. Chandra v. M. Thangamuthu this Court considered this aspect in detail and held as under: (SCC pp. 735-36, para 47) “47. We do not agree with the reasoning of the High Court. It is true that a party who wishes to rely upon the contents of the document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasized that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party.” A similar view has been reiterated in J. Yashoda v. K. Shobha Rani.” Earlier in the case of H. Siddiqui (dead) by LRS Vs. A. Ramalingam reported in 2011 (4) SCC 240 the Hon’ble Apex Court, upon consideration of the relevant provisions of the Indian Evidence Act, 1872 discussed the scope of permitting parties to adduce secondary evidence after examining the probative value of the document in question. Paragraphs 12 and 17 of Siddiqui’s case (supra) read as follows:- “12. The provisions of Section 65 of the 1872 Act provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. Paragraphs 12 and 17 of Siddiqui’s case (supra) read as follows:- “12. The provisions of Section 65 of the 1872 Act provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a cause where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until non-production of the original is accounted for, so as to being it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. (Vide Roman Catholic Mission v. State of Madras, State of Rajasthan v. Khemraj, LIC v. Ram Pal Singh Bisen and M. Chandra v. M. Thangamuthu.) 17. Therefore, it is the duty of the court to examine whether the documents produced in the court of contents thereof have any probative value.” Therefore, upon consideration of the law on the subject as elucidated above this Court finds substance in Sri Halder’s arguments that the Ld. Civil Court (Senior Division) failed to appreciate the requirement of the petitioners/plaintiffs to adduce secondary evidence in respect of the A, B, and C Schedule properties-in-suit when the defendants/OPs are alleged to be withholding the original documents by not contesting the suit. Further noticing the requirement of the plaintiffs/petitioners to prove their own case this Court is of the considered view that the Ld. Civil Court (Senior Division) ought to proceed to determine the probative value of the documents sought to be adduced by the plaintiffs as secondary evidence upon recording its satisfaction and thereafter consider the prayer for adducing such secondary evidence in the light of the law discussed above. In the backdrop of the above discussion the orders impugned dated 3rd April, 2008 and 31st July, 2008 are set aside. The matter is remanded back to the Ld. In the backdrop of the above discussion the orders impugned dated 3rd April, 2008 and 31st July, 2008 are set aside. The matter is remanded back to the Ld. Trial Court for consideration afresh in the light of the observations made in this order. CO 3547 of 2008 is accordingly allowed. There will be, however, no order as to costs.