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2016 DIGILAW 1162 (ORI)

Sk. Ishaque v. Sk. Liakat Alli

2016-11-25

A.K.RATH

body2016
JUDGMENT : A.K. RATH, J. 1. This petition challenges the order dated 8.7.2015 passed by the learned Civil Judge (Jr. Division), Jajpur in C.S. No. 78 of 2012 vide Annexure-1. By the said order, learned trial court marked the certified copy of the registered sale deed bearing no. 2315 dated 19.3.1974 as exhibit. 2. The petitioner as plaintiff instituted the suit for permanent injunction impleading the opposite parties as defendants. After closure of evidence, the defendants filed an application to mark the certified copy of the registered sale deed no. 2315 dated 19.3.1974 as exhibit. It is stated that plot no. 1235 is adjacent to plot no. 1234. The defendants have specifically pleaded that plot no. 1234, area Ac.0.30 dec. is used as Kabarstan. The same is burial ground of the defendants. They came to know that the recital of the sale deed executed by one of the recorded tenants that a part of plot no. 1234 is kabarstan. Thereafter they obtained the certified copy of the same. The plaintiff filed objection stating therein that after closure of evidence, no document can be marked as exhibit. Unless the original sale deed is marked, the certified copy of the sale deed cannot be marked as exhibit. The registered sale deed or its certified copy is not a public document. Learned trial court held that the certified copy of the sale deed can be admitted in evidence and marked the same as exhibit. 3. Mr. Mishra, learned Senior Advocate for the petitioner submitted that a certified copy is allowed to be produced under Section 65 of the Evidence Act, the Court should not admit the same on the ground that the certified copy of the original, unless the execution of the original is proved or admitted by the persons against which the same is to be relied on. Secondary evidence of the contents of the document is admissible where the original is lost. In the instant case, the original sale deed was not produced. Thus, the court below committed a manifest illegality in admitting the certified copy as exhibit. He further submitted that though the plaintiff objected to marking of the said document, but his objection was not recorded. The sale deed was executed by one Sk. Salimuddin in favour of Sk. Abdul Rahim. They are not parties to the suit. Thus, the court below committed a manifest illegality in admitting the certified copy as exhibit. He further submitted that though the plaintiff objected to marking of the said document, but his objection was not recorded. The sale deed was executed by one Sk. Salimuddin in favour of Sk. Abdul Rahim. They are not parties to the suit. Neither the vendor nor the vendee has been examined to prove the same. The sale deed is a private document. The rule of evidence requires that a document must be proved by primary evidence; exception being that the secondary may be given of the existing condition, or contents of a document in cases enumerated in Section 65 of the Evidence Act. He relied on the decisions of this Court in the case of Bhaskar Sahu vs. Anama Swara and others, AIR 1987 Orissa 138 and Rama Chandra Majhi vs. Hambai Majhi, AIR 1989 Orissa 27. 4. Per contra, Mr. S.K. Dash, learned counsel for the opposite parties submitted that the sale deed is a private document. The record of the sale deed is kept in the office of the sub-registrar as a public record. Hence it falls within the category of public document and as such the certified copy of the registered sale deed is admissible in evidence. He relied on the decisions in the case of Hussaini Mahto and others vs. Hulash Mahto and others, AIR 2006 Jharkhand 87, Santosh Kumar vs. Purnima Kumari and others, AIR 2011 Jharkhand 76, Hameed and others vs. Kanhaiya, AIR 2004 Allahabad 405 and State of Haryana vs. Ram Singh, AIR 2001 SC 2532 . 5. Before delving deep into the matter, it is apt to refer the decisions cited at the Bar. In Bhaskar Sahu (supra), a Division Bench of this Court held that the rule of evidence requires that a document must be proved by primary evidence; exception being that the secondary may be given of the existing condition, or contents of a document in cases enumerated in S.65, Evidence Act. One of the conditions where secondary evidence can be admitted in evidence is, when the party offering evidence of the contents of the document cannot, for any reason, not arising from his own default or neglect, produce the original document in a reasonable time. One of the conditions where secondary evidence can be admitted in evidence is, when the party offering evidence of the contents of the document cannot, for any reason, not arising from his own default or neglect, produce the original document in a reasonable time. It further held that a foundation must first be laid for the reception of secondary evidence and no secondary evidence of a document is permissible unless the conditions mentioned in S.65 are satisfied. Where a person relying on a document is unable to bring the original thereof before the Court, the Court is competent to admit secondary evidence for the purpose of having the contents of the original document proved, only when non-production of the original is satisfactorily accounted for. The same view was reiterated in Rama Chandra Majhi (supra). It was held that where the party against whom the secondary evidence is sought to be admitted does not object to the admission of the secondary evidence which is a document and such document is marked exhibit without objection, it shall be deemed that he has waived the objection available to him that grounds for admission of the secondary evidence have not been made out. 6. In Hussaini Mahto and others (supra), it was held that sale deed is a private document, but the record of the sale deed is kept in the office of the sub-registrar as a public record. Thus it falls within the category of the public document. Certified copy of the sale deed is admissible in evidence. The same view was taken in Santosh Kumar (supra). 7. When the original sale deed, whose copy is maintained in the registration office, is lost, secondary evidence can be given in respect of contents thereof by providing the entry in the Register in the registration office. Instead of providing the entry in the register in original, certified copy of entry of the sale deed in such register can be proved. Thus no objection can be taken for admitting the certified copy of the entry in a book maintained in the registration office as secondary evidence of the contents of the sale deed in case ground for secondary evidence is made out. Thus no objection can be taken for admitting the certified copy of the entry in a book maintained in the registration office as secondary evidence of the contents of the sale deed in case ground for secondary evidence is made out. But then, where the party against whom the secondary evidence is sought to be admitted does not object to the admission of the secondary evidence and the document is marked exhibit without objection, it shall be deemed that he has waived the objection available to him that grounds for admission of the secondary evidence have not been made out. 8. The learned trial court has not considered as to whether the evidence sought to be produced either assist in clarifying the evidence led on the issues or led to a just and effective adjudication. There is no acceptable reason or cause shown by the defendants for non-production of those documents during the trial. 9. The sale deed has been marked as exhibit. Ends of justice shall be better served, if a direction be issued to the defendants to pay a cost of Rs.2500/- (rupees two thousand five hundred) to the learned counsel for the plaintiff within two weeks. Order accordingly. Liberty is granted to the plaintiff to raise the question of admissibility of the said exhibit at the time of hearing. The petition is disposed of with the aforesaid observations.