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2017 DIGILAW 679 (AP)

K. Raja Gopal Reddy v. K. Sreenivasa Reddy

2017-10-30

B.SIVA SANKARA RAO

body2017
ORDER : Heard learned counsel for the petitioner/plaintiff and also counsel for respondents. 2. Perused the docket order of the lower court dated 14.10.2011 in the pending suit O.S.No.433 of 2007. The suit is filed for the relief of declaration of plaintiffs 1st and 2nd defendants respectively each entitled to 1/3rd share in the plaint schedule properties and thereby consequently for division and passing of final decree by allotment accordingly. During pendency of the suit, 1st defendant among the two defendants died on 25.10.2009 and defendants 3 to 5 came on record as LRs of late 1st defendant. The 3rd defendant, who is one of the LRs of the late 1st defendant, after closure of the evidence of plaintiff from 2nd defendant, did not adduce any independent evidence of his own but for common and what 1st defendant in his lifetime filed the chief affidavit is appears to be referred as DW.1, leave about whether taken on oath or not and if taken on oath at whose instance it was coming for cross-examination and what is its evidentiary value if any, now not necessary to discuss; said 3rd defendant filed chief affidavit as DW.2 and sought for marking of some documents already in the court record by referring in his chief affidavit, the plaintiff raised an objection for not marking saying DW.2 - D3 has no personal knowledge of the documents and thereby those cannot be exhibited by him in his evidence. No doubt as held by this Court in Bachu Laxmi Pathi Vs. Bachu Kistaiah, 2015 (5) ALT 795 and in Budha Jagadeswara Rao Vs. Sri Ravi Enterprises, CRP.No.1850 of 2015, dated 23.08.2016 held that when original itself is to be impounded, question of adducing secondary evidence by production of a Photostat copy of original un-impounded does not arise, when it is the original that to be impounded for not duly stamped and as such for question of impounding a copy does not arise and without impounding on original, question of marking copy of a document thereby does not arise. It does not mean secondary evidence subject to objection on admissibility cannot be marked, but for where it requires stamp duty and registration. 3. Said petition was rejected by the trial court after elaborate discussion of the facts and rival contentions. Needless to repeat, those, for suffice herein from the well settled law from R.V.E.Venkatachala Gounder Vs. It does not mean secondary evidence subject to objection on admissibility cannot be marked, but for where it requires stamp duty and registration. 3. Said petition was rejected by the trial court after elaborate discussion of the facts and rival contentions. Needless to repeat, those, for suffice herein from the well settled law from R.V.E.Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple & Another, (2003) 8 SCC 752 , say marking of document involves two aspects, one is procedural and the other is substantial. The procedural aspects are relating to the nature of the document primary or secondary and once marked without objection on the procedural aspects, later it is not left open. So far as substantial aspects concerned, even document marked without objection where it requires proof besides to decide relevancy for admissibility otherwise, these are all always left open and mere marking without objection is not even waiver of such objection on proof and relevancy from mere admissibility even, much less to allow contention of a document which required to be proved, from mere giving of exhibit number in marking, tantamounts to proof. This Court also reiterated the same referring to the above among several other expression on the scope of law and in detail in Sri. Kaitha Narsing Rao Vs. Kodi Supriya and others, CRP.Nos.4384 & 4385 of 2015, dated 29.09.2016. 4. Having regard to the above, there is nothing to interfere with the order of the lower court, but for to say, while marking any objection is left open to raise for the court ultimately to decide other than stamp duty and registration and anything relating to the electronic evidence as contemplated from production with certification in regard to it of any secondary evidence under section 65(b)(4) of the Evidence Act, as per the settled expressions of the Honble Apex Court in Bipin Shantilal Panchal Vs. State of Gujarat, (2001) 3 SCC 1 = AIR 2001 SC 1158 and Anwar P.V. Vs. P.K.Basheer and Others, (2014) 10 SCC 473 and the latest three Judge Bench expression at Paras 25 and 26 referring to Paras 22 to 24 of Anwar Supra in Vikram Singh @ Vicky Walia Vs. State of Gujarat, (2001) 3 SCC 1 = AIR 2001 SC 1158 and Anwar P.V. Vs. P.K.Basheer and Others, (2014) 10 SCC 473 and the latest three Judge Bench expression at Paras 25 and 26 referring to Paras 22 to 24 of Anwar Supra in Vikram Singh @ Vicky Walia Vs. State of Punjab, (2017) 8 SCC 518 , saying original tape recorded conversation is an original and compliance of Section 65(B)(4) of the Evidence Act does not arise, leave about the other two Judge Bench expression of the Honble Apex Court in Sonu @ Amar Vs. State of Haryana, (2017) 8 SCC 570 referring to RVEV Gounder & Anwar Supra, that objections that may be raised as to admissibility and relevancy to mode and method of proof, and thus for not raising objection to the marking of the CDRs of mobile phone conversation recorded recovered as second evidence without compliance of Section 65(B)(4) of the Evidence Act, cannot be permitted to be raised in appeal, leave about Anwar’s expression is a prospective overruling or retrospective overruling of the earlier expressions particularly of State (NCT Delhi) Vs. Navjot Sandhu, (2005) 11 SCC 600 5. Accordingly and in the result, this civil revision petition is disposed of. Miscellaneous petitions pending consideration, if any, in this case shall stand closed in consequence. There shall be no order as to costs.