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2017 DIGILAW 3150 (MAD)

Uthirakosamangai v. Gengaimuthu

2017-09-14

T.RAVINDRAN

body2017
ORDER : 1. The petitioners are the defendants 9 to 14 in O.S.No.27 of 2005, on the file of the Sub Court, Ambasamudram. The above said suit has been laid by the plaintiffs/respondents 1 and 2 for partition. It is found that the first defendant in the suit has resisted the suit laid by the plaintiffs for partition by filing a written statement and in the written statement inter alia it has been pleaded by the first defendant that the deceased Kanthimathi Asari, through whom the plaintiffs and the defendants claim title to the property in dispute, had executed a Will, dated 29.05.1972, in favour of the defendants concerned and further, according to the first defendant, inasmuch as the original Will could not be traced at the time of filing of the written statement, he had filed only the xerox copy of the Will along with the written statement and undertook to produce the original Will at the time of trial. A perusal of the written statement filed by the first defendant would go to show that the xerox copy of the above said Will has been enclosed along with the written statement. It is found that the first defendant having died, his legal heirs have been added as the defendants 9 to 14, who are the petitioners herein. The petitioners/defendants 9 to 14 have also filed a written statement on coming on record and they have also pleaded about the Will above stated and also enclosed the xerox copy of the Will along with their written statement. 2. It is found that even prior to the institution of the suit, on account of the exchange made between the parties, the plaintiffs were also put on notice about the said Will stated to have been executed by the deceased Kanthimathi Asari and the plaintiffs in their plaint have also adverted to the above said Will and according to the plaintiffs, the deceased Kanthimathi Asari had not executed any Will muchless the Will, dated 29.05.1972, in favour of the defendants concerned and the said Will does not contain the signature of the deceased Kanthimathi Asari and the same had not been duly executed as per law and the said Will is a forged document. It is, therefore, seen that the plaintiffs are also aware of the defence projected by the defendants by way of the above said Will and accordingly, averred about the same in the plaint. 3. While the matter stood thus, it is found that the petitioners/defendants 9 to 14 have laid an application in I.A.No.148 of 2017, under Order VIII Rule 1A(3) of the Code of Civil Procedure, seeking permission to receive the xerox copy of the Will, dated 29.05.1972, executed by Kanthimathi Asari, as according to them, despite their best efforts, they could not trace the original Will and even after the demise of their father, namely, the first defendant, they were unable to secure the original Will and hence, the application for the reception of the xerox copy of the Will. 4. The said application of the petitioners/defendants 9 to 14 was contested by the plaintiffs contending that the xerox copy of the Will cannot be received and admitted in evidence and in the absence of the original Will, the petitioners/defendants 9 to 14 are not entitled to seek the permission of the Court to receive and mark the xerox copy of the Will in question and further, when according to the plaintiffs, the said Will is not executed by the deceased Kanthimathi Asari and it is a forged document and in such view of the matter, the application is not entitled for acceptance. 5. The Court below, on a consideration of the rival contentions put forth by the respective parties, holding that the matter is at the part-heard stage and further, as the document sought to be received in evidence, is only a xerox copy of the Will and when the non-production of the original Will has not been properly explained and inasmuch as there is a huge delay in filing the application, dismissed the application preferred by the petitioners/defendants 9 to 14. Impugning the same, the present civil revision petition has been levied. 6. Impugning the same, the present civil revision petition has been levied. 6. It is strenuously argued by the learned counsel for the petitioners/defendants 9 to 14 that the Court below has erred in dismissing the application laid for the reception of the xerox copy of the Will, under Order VIII Rule 1A(3) C.P.C. According to the learned counsel for the petitioners/defendants 9 to 14, inasmuch as the deceased first defendant has already stated in the written statement filed by him about the Will executed by the deceased Kanthimathi Asari and that he has also filed the xerox copy of the Will along with the written statement contending that the original Will would be produced at the time of trial and after his demise, the petitioners/defendants 9 to 14 being his legal heirs also averred as regards the above said Will in the written statement, now, according to the petitioners/ defendants 9 to 14, as the original Will could not be traced out despite their diligent efforts, after the demise of their father/first defendant, according to them, they had been necessitated to lay the application for the reception of the xerox copy of the said Will and therefore, in such view of the matter, the Court below should have accepted the reasons given by the petitioners/defendants 9 to 14 for the non-production of the original Will and should have received the xerox copy of the Will in question and proceeded further in the matter and the decision of the Court below in rejecting the xerox copy of the Will at the threshold, without considering the case of the petitioners/defendants 9 to 14 as to the loss of the original Will and the efforts taken by them to trace the same ended in vein, according to them, the impugned order of the Court is liable to be set aside. 7. In this civil revision petition, the respondents have not chosen to enter appearance. 8. It is found that the application has been laid by the petitioners/defendants 9 to 14 for the reception of the xerox copy of the Will, under Order VIII Rule 1A(3) C.P.C. The said rule is with reference to the obtainment of the permission from the Court for the reception of any document, when the said document had not been produced along with the written statement. Now, according to the petitioners/defendants 9 to 14, though the xerox copy of the Will in question had been filed by them along with the written statement, even along with the written statement filed by the first defendant, it is their case that despite their best efforts, they are unable to trace the original Will, after the demise of their father, namely, the first defendant and hence, left with no other alternative option, according to them, they have been necessitated to file the xerox copy of the Will for reception. It is found that the Court below had mainly dismissed the application holding that the application had been filed at the fag end of the trial and the delay in filing the application has not been properly explained. However, as rightly argued by the learned counsel for the petitioners/defendants 9 to 14, when the petitioners/defendants 9 to 14 have projected the xerox copy of the Will in question along with the written statement and coupled with the fact that the deceased first defendant had also projected the xerox copy of the Will along with the written statement filed by them stating that the original Will would be produced at the time of the trial and when, now according to the petitioners/defendants 9 to 14, the original Will could not be produced despite their best efforts to trace the same, it is found that the Court below should have at the first instance entertained the reception of the xerox copy of the Will and thereafter, proceeded to go into the question as to whether the petitioners/defendants 9 to 14 have established the reasons for the non-production of the original Will and whether the xerox copy of the Will could be admitted in evidence as per Section 65(c) of the Indian Evidence Act. It is found that the Court below had dismissed the application preferred by the petitioners/defendants 9 to 14 mainly on the ground of delay. It is found that the Court below had dismissed the application preferred by the petitioners/defendants 9 to 14 mainly on the ground of delay. However, as rightly argued by the learned counsel for the petitioners/defendants 9 to 14, when Section 65(c) of the Indian Evidence Act permits the reception of the secondary evidence, when the original document 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 a reasonable time, therefore, it is found that the above said provision of law enables the party to place secondary evidence in the place of original on the ground that the original had been lost or could not be traced despite the diligent efforts taken. Now, it is the case of the petitioners/defendants 9 to 14 that they are unable to trace the original Will and hence, according to them, they are forced to file only the xerox copy of the Will in question. No doubt, the plaintiffs have thrown a challenge to the Will as it is a forged document. As rightly argued by the learned counsel for the petitioners/defendants 9 to 14, the above said contention of the plaintiffs does not merit acceptance at this point of time and the only question to be determined by the Court below is whether the petitioners/defendants 9 to 14 have made out a case for the reception of the xerox copy of the Will under Order VIII Rule 1A(3) C.P.C. 9. With reference to the said position of law, the learned counsel for the petitioners/defendants 9 to 14 placed strong reliance upon the decision of this Court reported in 2011 (2) CTC 258 [N.Subhash Chand Jain vs. Uniply Industries Limited], wherein this Court has held that the Court cannot refuse to accept the documents filed by the parties at the first instance and the parties are at liberty to object to marking of the documents and at that stage, the Court should consider the objections placed with reference to the marking of the documents. This Court has arrived at the above decision, after deriving support from the decisions of the Apex Court cited therein. This Court has arrived at the above decision, after deriving support from the decisions of the Apex Court cited therein. Similarly, in the decision rendered in 2017 (1) CCC 806 (P&H) [Mohinder Singh vs. Kuljeet Singh], the Court had held that if any one of the grounds mentioned under Section 65 of the Evidence Act is spoken to by the party, who is seeking for the reception of the secondary evidence, the Court is bound to accept it and leave it to the opposite party to elicit in the cross- examination that grounds made are not true and the documents produced as secondary evidence ought not to be received and it is not possible for the Court to adjudge at an interlocutory stage whether loss is established or not and the same has to be considered along with several other issues at the time of disposal of the suit. 10. It is, thus, found from the above cited authorities that when the petitioners/defendants 9 to 14 have sought for the reception of the xerox copy of the Will in question contending that the original had been lost and despite their diligent efforts to trace the same, they could not trace the Will and coupled with the fact that when the petitioners/defendants 9 to 14 have already produced the xerox copy of the Will along with the written statement as above stated, in my considered opinion, following the above cited decisions, it is found that the Court below had erred in dismissing the application laid by the petitioners/defendants 9 to 14 at the threshold without going into the question as to whether the reasons given by the petitioners/defendants 9 to 14 for the production of the secondary evidence are acceptable or not. The Court below, as seen above, has dismissed the application preferred by the petitioners/defendants 9 to 14 only on the ground of delay that the petitioners/defendants 9 to 14 have not preferred the reception application at the earliest point of time. The Court below, as seen above, has dismissed the application preferred by the petitioners/defendants 9 to 14 only on the ground of delay that the petitioners/defendants 9 to 14 have not preferred the reception application at the earliest point of time. However, when the said reasoning of the Court below cannot be sustained as such for the reception of the document at the first instance and when it is seen that the petitioners/defendants 9 to 14 have already projected the xerox copy of the Will in question, even along with written statement filed by them as well as the written statement filed by the first defendant, it is found that there is no delay at all in filing of the xerox copy of the Will in question by the petitioners/defendants 9 to 14 and therefore, it is found that the Court below has erred in discountenancing the application preferred by the petitioners/defendants 9 to 14 on the ground of delay only. 11. In the light of the above decisions and in view of the forgoing reasons, the fair and decreetal orders, dated 27.03.2017, made in I.A.No.148 of 2017 in O.S.No.27 of 2005, on the file of the Sub Court, Ambasamudram, are set aside, and consequently, I.A.No.148 of 2017 is allowed. Resultantly, the civil revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.