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2017 DIGILAW 947 (ORI)

Talabaktula Laxmi v. Pusamuttu Manjula

2017-08-29

BISWANATH RATH

body2017
JUDGMENT : Biswanath Rath, J. This Civil Misc. Petition involves a challenge to the order dated 26.6.2014 passed by the Civil Judge (Sr.Divn.), Paralakhemundi in C.S. No.93/2011 appearing at Annexure-4. 2. Assailing the impugned order, Sri Das, learned counsel for the petitioner referring to the pleadings in paragraph-2 and paragraph-3 of the written statement submitted that the claim of the petitioner on the basis of a mortgage deed having been denied in the written statement further questioning the existence of such document by the defendants, it is claimed that the plaintiff had no other option than to introduce the secondary evidence by introducing the Xerox copy of the mortgage deed available with her. Further referring to the provision contained in Sections 65 and 66 of the Indian Evidence Act, 1872, Sri Das, learned counsel for the petitioner claimed that for the clear denial of the defendants, there was no question to take resort to the procedure made in Section 66 of the Indian Evidence Act and this aspect having been wrongly appreciated the Civil Judge has passed the wrong impugned order, which needs to be interfered with and set aside. Referring to a decision of this Court in Chandra Sekhar Pati and another vrs. Ahalya Devi & others reported in AIR 1974 Orissa 199, Sri Das further contended that in similar situation, this Court in paragraph-7 thereof has categorically observed that for the clear denial by the defendant on existence of the particular document, there was no question of calling for the documents from the defendants. Sri Das thus claimed that the above decision has a direct bearing on the case at hand. It is under the circumstance, Sri Das, learned counsel for the petitioner prayed for interference with the impugned order and setting aside the same. 3. Sri Mishra, learned counsel for the opposite parties referring to the averments made in the plaint and the denial of the defendants in paragraph-3 submitted that for the availability of the pleadings of the respective parties, the mortgage deed involving the suit taken help of in the suit is supposed to be available with the plaintiff and further in the event the mortgage deed was not available with the plaintiff, then procedure in leading secondary evidence should have been followed by at least making an application to the trial court for allowing him to have the scope of secondary evidence. It is under the above premises, learned counsel for the opposite parties prayed for dismissal of the Civil Misc. Petition for having no infirmity in the impugned order. 4. Considering the rival contentions of the parties, this Court finds, the plaint averments in paragraph-2 of C.S. No.93/2011 read as follows :- “2.The defendants approached the plaintiff for leasing out the suit house to them for their living and also for their business in the year 2004. The plaintiff and her husband agreed to mortgage the suit house to the defendants and accordingly a possessory mortgage was executed by the plaintiff in favour of defendant No.1on 9.9.2004 and received an amount of Rs.1,50,000/-(rupees one lakh and fifty thousand) only from the defendants on the terms and conditions that no interest to be paid on the amount advanced and no rent need be paid by the defendants for the suit house and the plaintiff delivered possession of the suit house to the defendants on 9.9.2004. The period of the mortgage is two years and eleven months from the date of execution of the mortgage. After expiry of the period, the mortgager i.e. the plaintiff would redeem the mortgage and on redemption, the defendant would deliver possession of the suit house to the plaintiff. The plaintiff tendered the amount of Rs.1,50,000/-just before the expiry of the mortgage, but the defendants requested the plaintiff to extend the period of mortgage and paid an extra amount of Rs.1,30,000/-in addition to the amount already paid on 9.9.2004 and at the request of the defendants, the plaintiff extended the period of mortgage and another document was executed by the plaintiff on 10.11.2007 to be valid up to 10.11.2009 and the total amount of Rs.2,80,000/- received by the plaintiff was mentioned in the document dt.10.11.2007 and the defendants continue to remain in possession of the suit house.” Denial of the defendant to the averments herein above in paragraph-3 of written statement reads as follows :- “3. This defendant No.2 respectfully submits that she and her husband are the migrants from Tamilnadu and they have settled at Paralakhemundi to do business and eke out their livelihood here. Since both of them were residing near about the suit house the plaintiff became friendly with this defendant and offered her the suit house on rent. This defendant No.2 respectfully submits that she and her husband are the migrants from Tamilnadu and they have settled at Paralakhemundi to do business and eke out their livelihood here. Since both of them were residing near about the suit house the plaintiff became friendly with this defendant and offered her the suit house on rent. Accordingly this defendant also agreed to take suit house on monthly rental basis on payment of rent of Rs.500/-per month initially in the year 2004. The plaintiff for her legal necessity such as for reconstruction and renovation of her family house at Pathpatnam demanded Rs.1,50,000/-as refundable security with interest at 24% P.A. for suit house rented out to this defendant. As desired by the plaintiff on date 9.9.2004 the defendant No.2 paid Rs.1,50,000/-as refundable security deposit repayable with interest at 24% P.A. for taking the suit house on monthly rent payable in the first week of the succeeding month of tenancy. Subsequently not only the monthly rent is raised to Rs.1000/-but on demand of the plaintiff the defendant No.2 paid Rs.1,30,000/-as additional security deposit in addition to Rs.1,50,000/-already paid which is also refundable with interest at 24% P.A. on termination of the tenancy and continued to occupied the suit house as monthly tenant on and from date 10.11.2007. Thus this defendant is and has been in occupation of the suit house paying rent of Rs.1000 P.M. to the plaintiff while the plaintiff still retains her money Rs.2,80,000/-refundable with interest of 24% P.A. deposit with her which is refundable upon termination of the tenancy. The theory of execution of mortgage deed dated 9.9.2004 and extension thereof from 10.11.2007 to 10.11.2009 and also execution of document by defendants agreeing to deliver possession to plaintiff on date 20.9.2011 are all false and imaginary and the said document in question may have been created for the purposes of this suit with help of friends and supporters of the plaintiff. The further claim of the plaintiff that the defendants are in possession of the above said mortgage deeds and documents are all false and imaginary. This defendant and or her husband were never parties to any such mortgage deed or document as so falsely alleged by the plaintiff in her plaint. The so called mortgage deed and extension document and or extension etc. This defendant and or her husband were never parties to any such mortgage deed or document as so falsely alleged by the plaintiff in her plaint. The so called mortgage deed and extension document and or extension etc. is a unilaterally prepared self serving document and similarly the so called endorsement document said to be executed by defendants is also a false and fake document containing forged signature and L.T.I. of defendant No.1 and 2 respectively. Apparently in order to avoid detection of forgery of the above said signature and L.T.I. pertaining to defendant no.1 and 2, the plaintiff conceals the original thereof and files a photo copy by falsely alleging that the above said mortgage deed/document etc. of which photocopies or filed, are with the defendants knowing fully well that the defendants are not even aware of any such documents. It is beyond comprehension and beyond one’s stretch of imagination as to how a document containing undertaking to vacate in favour of a claimant (plaintiff) be left in the custody of the undertakers (defendants). Hence all allegation in this behalf by plaintiff in her plaint sounds hallow and impossible.” Reading of both the aforesaid pleadings from the plaint as well as the written statement, this Court finds, no doubt that the mortgage deed was available with the defendants and for the clear denial of the defendants in the written statement regarding existence of such mortgage deed, the submission of the learned counsel for the petitioner that there was no scope for resorting to the provision contained in Section 66 of the Indian Evidence Act, 1872 has force. Further looking to the provision at Section 66(II) of the Indian Evidence Act, this Court reading the provision together with the denial by the defendants in paragraph-3 of the written statement finds, in spite of the claim of the plaintiff that the defendants are in possession of such document, there is a clear denial by the defendants of the existence of any such document, and therefore, there was no need for applying the court for leading secondary evidence filing the Xerox copy of the mortgage deed by the plaintiff. 5. Paragraph-7 of the decision in Chandra Sekhar Pati (supra) reads as follows :- “7. 5. Paragraph-7 of the decision in Chandra Sekhar Pati (supra) reads as follows :- “7. Ext.1 is a draft of the Anumati Patra alleged to have been executed by P.Somalingam, the admitted owner of the house, in favour of defendants 1 and on 25-12-43. The original of Ext.1 was not before the court. The learned Subordinate Judge held that in the absence of the original being called for from defendants 1 and 2. Ext.1 is inadmissible in evidence. Here, he committed a serious error of law. In the plaint, Ext.1 was referred to, Defendants 1 and 2 denied existence of such a document. Under Section 66 of the Evidence Act, secondary evidence of the contents of the documents referred to in Section 65, clause (a), shall not be admissible unless certain steps are taken under this section, as prescribed. The proviso to the section engrafts certain exceptions. Clause (2) of the proviso lays down that no notice shall be required in order to render secondary evidence admissible in a case when from the very nature of the case, the adverse party must know that he will be required to produce it. In this case, plaintiffs clearly made a reference to Ext.1 in the plaint. Defendants 1 and 2 denied existence of such a document. The question of calling for the document from them does not arise. Ext.1 cannot, therefore, be said to be inadmissible in evidence due to the absence of primary evidence. Moreover, Mr. Dasgupta makes a statement that plaintiffs, in fact, called for the document from defendants 1 and 2. That is a matter which the lower appellate court would examine. Similarly, defendant No.5 was called for by a petition to produce the original of Ext.1/a and the copy of Ext.1. Defendant No.5 died and no document has been produced. Ext.1(a) is, therefore, not inadmissible in evidence. The learned Subordinate Judge also committed a serious error in altogether not dealing with Ext.1/a.” Reading the above decision, this Court finds, the decision indicated above has a direct bearing on the petitioner’s case. For the observations made herein above and the observation made in the aforesaid decision, this Court finds, the impugned order has been passed in illegal application of the provision and wrong consideration of the pleadings available on record, for which the impugned order remains unsustainable. For the observations made herein above and the observation made in the aforesaid decision, this Court finds, the impugned order has been passed in illegal application of the provision and wrong consideration of the pleadings available on record, for which the impugned order remains unsustainable. Thus, while setting aside the impugned order, this Court allows the plaintiff to exhibit Xerox copy of the mortgage deed with scope of cross-examination with the defendants. The Civil Misc. Petition stands allowed.